Indianapolis Street Railway Co. v. Wilson
| Decision Date | 23 June 1903 |
| Docket Number | 19,868 |
| Citation | 67 N.E. 993,161 Ind. 153 |
| Parties | Indianapolis Street Railway Company v. Wilson |
| Court | Indiana Supreme Court |
Original Opinion of March 19, 1903, Reported at: 161 Ind 153.
Appellant through its counsel, urges a rehearing in this case upon the claim that the decision is wrong, and that the court erred in basing its conclusion upon the assumption that there was upon the face of the transfer ticket an ambiguity. There is no ground apparent or real for the latter contention. What was said in our opinion in regard to the ticket herein involved, as it appeared in the record, being prima facie unintelligible to many persons, was merely asserted in answer to the contention of appellant's counsel that it was the duty of appellee to examine it when he received it, in order to discover if the conductor of the College avenue line had punched it in accordance with his request for a transfer; the argument being advanced apparently to the effect that his neglect to exercise such caution would, under the circumstances, defeat a recovery in this case. What the court held was that the ticket furnished to appellee by appellant, as shown, could not be regarded as conclusive evidence between the parties; that, under the circumstances, it was open to the explanations made by appellee at the time he presented it for passage to the conductor in charge of the Virginia avenue car in regard to the mistake or fault of appellant's agent in punching the ticket; that appellee's expulsion from the car over his explanations or statements in relation to the ticket was at the peril of appellant, in the event of its being unable to show that the same so made by him were false or untrue. Or, in other words, under the circumstances in the case, the burden was upon it to prove the falsity of these explanations. No attempt was made to establish at the trial that they were in any manner false. Appellant seemingly rested its case upon the claim which it made that the ticket in controversy was conclusive evidence between it and appellee of the contract in regard to the transfer, and that it was not open to his explanations in respect to the mistake made by its agent who issued the ticket to him, and that, on his refusal to pay the fare demanded by the conductor of the Virginia avenue car, his expulsion therefrom was justified.
We are not impressed with the insistence of counsel for appellant that it is the well-known disposition of many persons "to impose on public carriers whenever a safe opportunity arises," and that therefore in the future passengers over appellant's lines, relying on the rule affirmed in this case, will be enabled to overthrow the entire transfer system of the city, by means of fraudulent claims made in relation to transfer tickets. A court ought not to hesitate to enforce the rule which we do in this case--a rule or principle which is so logically supported by many authorities--merely upon the assumption or naked assertion that some persons may be enabled thereby to perpetrate a fraud in the future. Regard must be had for the legal rights of passengers as well as for those of public carriers; and all doubts in respect to the rights of the former are not, as counsel for appellant seemingly argue, to be solved against the passenger and in favor of the carrier. In addition to the authorities cited in the original opinion to sustain our holding that the ticket in dispute did not afford conclusive evidence between appellant and appellee in respect to the contract of carriage or passage, we cite the following: Louisville, etc., R. Co. v. Gaines, 99 Ky. 411, 36, 36 S.W. 174 S.W. [161 Ind. 172] 174, 59 Am. St. 465; Baltimore, etc., R. Co. v. Bambrey (Pa.), 16 A. 67.
We are satisfied with and adhere to the decision in this appeal, and the petition for a rehearing is therefore overruled.
Gillett J.--I find myself unable to agree with the result in this case, and with most of the views expressed in the opinion written by Jordan, J. The action, as disclosed by said opinion, is for tort, in ejecting appellee from a street car. It appears from the complaint, as well as the evidence, that he was ejected because he persisted in being carried upon a transfer ticket that did not purport to authorize him to ride on the car on which he had last taken passage.
The contract of appellant with the city provided that "the fare and transfer ticket shall entitle such passenger to ride upon said car upon which he has taken passage to the point where said line first intersects with the line to which such passenger desires to be transferred, which shall be plainly indicated on said transfer ticket, and after riding to said point of intersection such passenger may take passage on any car on the line indicated on his said transfer ticket, and on the surrender thereof to the conductor of such car shall be permitted to ride to the end of the last named line."
The evidence shows that appellee was a man of intelligence, who knew not only appellant's system of transferring in its outline, but who had specific knowledge of the fact, which was also indicated on the face of the ticket, that to entitle him to be carried on a transfer he must surrender to the conductor a transfer ticket that had the name of the line of cars to which he had transferred indicated by a punch in the space in the ticket in which such name was printed.
I desire to say at the outset that I think there is a clear distinction between this case and cases where the ticket is not insufficient on its face, or where it is ambiguous, or denotes the fact of a mistake upon a mere inspection of it, or where the traveler enters the train with a proper ticket that is afterwards taken up. The question in the case at bar is, can the appellee, under the circumstances of this case, maintain tort for being ejected from a car while insisting upon the right to ride upon a ticket that was palpably insufficient?
I agree with Jordan, J., that a transfer ticket is not a contract, but is a mere token. It is said by Mr. Wood in his work on railroads (2d ed.), 1634: "Tickets issued by a railway company to a passenger are prima facie evidence of a contract between the railway company and the passenger, to transport the latter and his personal baggage from the station named therein as the place of departure, to the station named therein as the place of destination." See, also, Thompson, Carriers of Passengers, 65; Fetter, Carriers of Passengers, 711, and cases there cited. Back of the ordinary ticket is the contract of the parties. There is a breach of that contract when the agent with whom it is made delivers a wrong token to the passenger. For the violation of that contract the carrier is liable for damages. The contract is to carry, and the damages are to be admeasured with that fact in view. Consequently the damages may in many cases be substantial, and include every element that might be recovered for in case of tort, saving damages for being ejected.
In Hobbs v. London, etc., R. Co., 44 L. J. Q. B. 49, a case where the plaintiff had been negligently carried to the wrong station, Blackburn, J., said: In a subsequent portion of the opinion, in discussing the question of damages, it was said:
A rule requiring passengers who do not pay cash fare to manifest their right to be carried by the production of proper tokens is reasonable and valid. Baltimore, etc., R. Co. v. Blocher, 27 Md. 277; Chicago, etc., R. Co. v. Boger, 1 Ill.App. 472; Pullman, etc., Co. v. Reed, 75 Ill. 125, 20 Am. Rep. 232; Frederick v. Marquette, etc., R. Co., 37 Mich. 342, 26 Am. Rep. 531; Willetts v. Buffalo, etc., R. Co., 14 Barb. 585; Hibbard v. New York, etc., R. Co., 15 N.Y. 455; Townsend v. New York, etc., R. Co., 56 N.Y. 295, 15 Am. Rep. 419; Downs v. New York, etc., R. Co., 36 Conn. 287, 4 Am. Rep. 77; Shelton v. Lake Shore, etc., R. Co., 29 Ohio St. 214. Moreover, such rule is so general with carriers that it may be affirmed not only that those who deal with them must take notice of it, but that every person of average intelligence does know of it.
The rule, then, being reasonable, and one which the proposed traveler may be presumed to be advised of, it is pertinent to inquire, if the latter is deprived of the privilege of remaining upon the car, what was the inception of his right? Evidently it was the contract. What was the contract? That the carrier, for a consideration received, would transport the proposed traveler from one point to another, subject to the reasonable regulation that he should produce to the carrier's conductor the token of his right so to be transported. If the rule amounts to anything, it must become a component part of the contract. But if the passenger receives a wrong token? Then he may sue in contract for the breach in failing to deliver to him a proper evidence of his right to ride, and thereby depriving him of such right. But if he sues in tort for being ejected, the carrier may answer: You should not, by virtue of the contract, have expected to continue upon the car after you were advised that you had not obtained a proper...
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