Cherry v. Chicago & Alton Railroad Company

• Decision Date: 22 November 1905
• Citation: 90 S.W. 381,191 Mo. 489
• Parties: CHERRY v. CHICAGO & ALTON RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

90 S.W. 381

191 Mo. 489

CHERRY v. CHICAGO & ALTON RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Division One

November 22, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Affirmed.

Johnson Allen & Richards and Henry W. Allen for appellant.

(1) The Santa Fe Railroad was not the general agent of the appellant. Such an agency could only arise by reason of some arrangement existing between the two companies. Railroad v Railroad, 51 F. 465. No general arrangement is shown by the evidence. The only authority from the Chicago & Alton to the Santa Fe to issue tickets over its line for this occasion is contained in Circular Letter No. 7730. That circular letter created a special agency at most. Railroad v. Ford 53 Tex. 371; Story on Agency, 126. (2) A party dealing with a special agent does so at his peril and should inquire into the extent of his authority. Railroad v. Ford, 53 Tex. 364; Breen v. Railroad, 50 Tex. 43; Railroad v. Herring, 57 Ill. 59; Keeley v. Railroad, 67 Me. 163; Bennett v. Railroad, 69 N.Y. 594. (3) The branch of the Santa Fe system which issued this ticket, "Lines west of Albuquerque," was not a member of the Western Passenger Association, and the action of the Western Passenger Association in authorizing a sixty-day limit on these tickets did not apply to that branch and did not authorize the issuance of such ticket by it. (4) The fact that plaintiff was allowed to ride on the going coupon of this ticket does not amount to a ratification. Cloud v. Railroad, 14 Mo.App. 136; Hill v. Railroad 63 N.Y. 101; Johnson v. Railroad, 46 N.H. 213; Shelton v. Railroad, 29 Oh. St. 214; Dietrich v. Railroad, 71 Pa. St. 432; Sherman v. Railroad, 40 Ia. 45; Stine v. Railroad, 47 Ia. 82; Wakefield v. Railroad, 117 Mass. 544; Keeley v. Railroad, 67 Me. 163; Townsend v. Railroad, 56 N.Y. 295.

Jamison & Thomas for respondent.

(1) The Santa Fe was the general agent of defendant, for the purpose of selling trans-continental tickets. 2 Abbott's Law Dic., p. 487; Ibid., p. 53; Wharton's Law Lexicon, p. 78; Ibid., p. 361; 7 "Words and Phrases," p. 6567; 1 Am. and Eng. Ency. Law (2 Ed.), 985-6; R. & J., Law Dict., p. 39; Butler v. Maples, 9 Wall. (U.S.) 766; Cruzan v. Smith, 41 Ind. 288; Railroad v. Owen, 43 Ind. 405; South Bend Co. v. Ins. Co., 3 S.D. 205. (2) The acceptance by defendant of tickets issued by the Santa Fe is sufficient to establish general agency to sell tickets. Cloud v. Railroad, 14 Mo.App. 136; Young v. Railroad, 115 Pa. St. 112; Swofford Bros. D. G. Co. v. Bank, 81 Mo.App. 46; Spencer v. Lovejoy, 96 Ga. 657; Railroad v. Sears, 11 Ind.App. 654. (3) Plaintiff was authorized to assume that the agent had due authority to act within the apparent scope of his authority, whether the agent were a special or general agent. Gelvin v. Railroad, 21 Mo.App. 273; McNichols v. Nelson, 45 Mo.App. 446; Baker v. Railroad, 91 Mo. 152; Flint-Walling Mfg. Co. v. Ball, 43 Mo.App. 504; Breckenridge v. Ins. Co., 87 Mo. 62; Winter v. Railroad, 41 Mo. 503; 1 Am. and Eng. Ency. Law (2 Ed.), 995; Griggs v. Selden, 58 Vt. 561; Walsh v. Ins. Co., 73 N.Y. 5; Dodge v. McDonnell, 4 Wis. 553; Railroad v. Foster, 104 Ind. 293; Dye v. Railroad, 20 D. C. 63. (4) As between the principal and a party with whom the agent deals, the principal is liable on contracts made by the agent, even if he exceeds or deviates from his express direction, provided the agent is acting within the general scope of his apparent authority. Young v. Railroad, 115 Pa. St. 112; Dye v. Railroad, 20 D. C. 63. (5) The ticket is the criterion for determining the right of passenger to carriage. Frederick v. Railroad, 37 Mich. 342; Hutchinson on Carriers, sec. 580, p. 678-9; Fetter on Carriers, p. 734; Ibid., sec. 321. (6) Mistake by selling ticket agent in punching limit, etc., does not deprive a passenger of his right to be carried. Head v. Railroad, 79 Ga. 358; Trice v. Railroad, 40 W.Va. 271; Kent v. Railroad, 45 Oh. St. 284. (7) Passenger cannot be required to pay fare wrongfully demanded in case of dispute and then sue for the recovery of same. Cherry v. Railroad, 52 Mo.App. 494; Railroad v. Rodgers, 28 Ind. 1; Grayham v. Railroad, 29 N.E. 170; Fetter on Carriers of Passengers, p. 794-5; Railroad v. Mackie, 71 Tex. 491; Watkins v. Railroad, 21 D.C. 1; Yorton v. Railroad, 62 Wis. 367.

Johnson, Allen & Richards and Henry W. Allen for appellant in reply.

The only point which has been raised by responddent is in regard to the clause in the ticket which provides that: "No agent or employe has power to modify this contract in any particular. In case of an error on the part of the agent, or a question of doubt between the holder and conductor, pay the conductor's claim, take his receipt and report to the General Passenger Agent. The case will then be fairly considered and promptly adjusted." The respondent cannot evade compliance with his contract, evidenced by his signature to the unequivocal statement, "I have read and I fully understand and agree to the above terms in consideration of the reduced rates," by any such theoretical and sophistical refinement. This was one of the terms of the contract and was expressed as clearly and concisely as was possible. Independently of the contract, it is the right of a railroad company to make reasonable regulations for the conduct of passengers upon trains, and it is the duty of passengers to conform to such reasonable regulations. Nor is it necessary, in order to bind a purchaser of a ticket to the terms printed upon the ticket, that he should have signed the contract, the terms of which are included in the printed matter upon the ticket. It is within the power of a railroad company to provide reasonable conditions at all times, and a ticket must be construed according to the terms upon its face. Keeley v. Railroad, 67 Me. 163; Kellett v. Railroad, 22 Mo.App. 356; Railroad v. Connell, 112 Ill. 295; Baldwin, Am. Railroad Law, p. 288; Boylan v. Railroad, 132 U.S. 150; Mosher v. Railroad, 127 U.S. 390.

OPINION

MARSHALL, J.

This is an action for $ 5,000 actual damages and $ 5,000 punitive damages, alleged to have been sustained by plaintiff on the 28th of July, 1900, by being assaulted, maltreated, maimed and ejected from the defendant's train by the conductor thereof, at Alton, Illinois.

The answer is a general denial, coupled with two special defenses, to-wit: first, that if plaintiff was ejected from defendant's train it was because he presented for passage a limited special excursion ticket issued by the agent of the Atchison, Topeka & Santa Fe Railway, at Fresno, California, for a continuous passage from Fresno, California, to Philadelphia, Pennsylvania, and for a like continuous passage from Philadelphia to Fresno, and that the agent of the Atchison, Topeka & Santa Fe had no right or authority from the defendant to issue such a ticket to be good returning later than the 27th of June, 1900, no stop-overs to be allowed, and that the plaintiff had not, in returning, continuously pursued his journey, but on the contrary, stopped over for a period of five weeks at Louisville, Kentucky; that when the ticket was presented to the conductor of the defendant's train on July 28th, it had become void by reason of the expiration of the time limit, and by reason of the plaintiff not having continuously pursued his return journey; and second, that the ticket contained the following express contract between the road and the plaintiff, signed by the plaintiff, to-wit: "In case of an error on the part of the agent, or a question of doubt between the holder and the conductor, pay the conductor's claim, take his receipt, and report to the general passenger agent. The case will then be fairly considered and promptly adjusted. I have read and I fully understand and agree to the above terms in consideration of reduced rates. Signed, George W. Cherry;" that when plaintiff presented the ticket to the conductor, the latter informed him that it had expired, and that the plaintiff had not pursued continuously his return passage. Thereupon the conductor endeavored to persuade the plaintiff to pay his fare, take his receipt, and report to the general passenger agent as provided by the contract, all of which the plaintiff refused to do, and that thereupon the conductor politely requested the plaintiff to leave the train, and that the plaintiff refused to do so, and continued to refuse to pay his fare, although given ample time so to do, in consequence of which the plaintiff was ejected from the train.

The reply is a general denial. At the close of the plaintiff's case the court sustained a demurrer to the evidence, the plaintiff took a nonsuit with leave, and thereafter the court sustained the motion to set aside the nonsuit, and the defendant appealed to this court.

Chronologically stated, the facts in judgment are these:

On the 19th of June, 1900, the Republican National Convention was held at Philadelphia, Pennsylvania. Preparatory to providing transportation for persons desiring to attend the same, the general ticket agent of the defendant, on the 18th of May 1900, issued a circular letter to all ticket agents prescribing the terms on which tickets might be sold. That circular provided that tickets might be sold for passage to Philadelphia and return for one fare for the round trip; that from stations in Illinois and St. Louis, the sale of such tickets should begin on the 14th of June and end on the 18th, and from all other stations should begin on the 14th of June and end on the 16th; that the ticket should be limited to a continuous passage in each direction, going passage on date of sale, returning passage on date of execution, and the final limit to be June 27th, 1900; that the coupons on the going...