Melody v. Great Northern Ry. Co.

• Decision Date: 15 June 1910
• Parties: ARLINGTON B. MELODY, Plaintiff and , v. GREAT NORTHERN RAILWAY COMPANY, Defendant and .
• Court: South Dakota Supreme Court

25 S.D. 606, 127 N.W. 543 (1910)

ARLINGTON B. MELODY, Plaintiff and v GREAT NORTHERN RAILWAY COMPANY,

Defendant and

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Reversed

C. H. Winsor

Attorney for appellant.

Ranson L. Gibbs

Attorney for respondent.

Opinion filed June 15, 1910

SMITH, J.

This is an appeal from an order of the circuit court of Minnehaha county, sustaining a demurrer to the defendant's answer. The complaint sets forth a cause of action for the recovery of damages for an assault claimed to have been committed upon the plaintiff by the conductor and trainmen of the defendant railway corporation on the 7th of March, 1908. It is alleged that on the 6th day of March, 1908, the plaintiff purchased a railway ticket at the town of Lester, in the state of Iowa, for transportation to Sioux Falls, S. D., by way of Garretson, and paid therefor the sum of 75 cents; that on said day the plaintiff traveled on defendant's train on said ticket from Lester, Iowa, to Garretson, S. D.; that on the 7th day of March, 1908, the defendant received the plaintiff as a passenger upon its train at Garretson, S. D., to be carried to Sioux Falls, S. D., and that he presented the ticket above mentioned to the defendant's conductor in charge of said train, who refused to accept the same, and demanded fare from this plaintiff from Garretson to Sioux Falls; that the said plaintiff refused to pay said fare, whereupon the conductor and the employees of the defendant willfully, maliciously, and violently ejected the plaintiff from the train, whereby the said plaintiff was greatly injured, wounded, and suffered exposure and grievous mental suffering, alleging damages.

The defendant in its answer admits the foregoing allegations of the complaint, except as to injury, and sets forth the terms and conditions of the ticket in part as follows:

"Great Northern Railway Line. Good for one first-class passage from Lester to Sioux Falls. This ticket is not transferable and will not be honored for passage if presented by another than the original purchaser, whose signature appears hereon. Any alteration or erasure on this ticket makes it void, and it will be taken up by conductor or exchanger. It will not be honored for passage after date punched in margin. If closely limited no stopover will be allowed, if limited to thirty days from date of issue, stopovers will be allowed under usual rules, upon application to conductor."

The defendant alleges that this ticket was not limited to 30 days from date of issue; that the conductor in charge of the train refused to accept the ticket, and demanded fare from Garretson to Sioux Falls, S. D., which demand plaintiff refused, whereupon the conductor ejected him from the train at the station of Corson, using no more force than was reasonably necessary; That the defendant in receiving said ticket for transportation between Lester and Garretson on the 6th day of March, 1908, accepted it as and for part of a continuous passage from Lester to Sioux Falls, and not otherwise; that it was necessary for the plaintiff to change cars at Garretson; that the plaintiff arrived at Garretson on the 6th day of March, and that the defendant's regular train left Garretson for Sioux Falls on said day, after the arrival of the train on which plaintiff traveled from Lester to Garretson, and plaintiff could have continued his passage from Garretson to Sioux Falls on the same day; that the distance from Lester to Garretson over the defendant's railway line is 23.5 miles, and from Garretson to Sioux Falls is 18.2 miles; that the ticket for continuous passage between Lester and Sioux Falls was sold under and in accordance with Local Passenger Tariff No. 192, which tariff was duly posted and published in the stations and depots of defendant and duly filed with the Interstate Commerce Commission and went into effect on August 1, 1907, by authority of the Interstate Commerce Commission Order No. 2184; that by said tariff schedule the fare from Lester to Sioux Falls for continuous passage and not otherwise, over the defendant's railway, is 75 cents; that said tariff schedule provides as follows:

"Tickets will be limited to continuous passage. Journeys to commence on the day of sale. Stopovers will not be allowed. Exception: One-way tickets between points 300 miles or over apart may be limited to 30 days from date of sale and, when so limited, stopovers will be allowed at all points within limits;"

that said passenger tariff fixes the local fare between Lester and Garretson at 60 cents, and the local fare between Garretson and Sioux Falls at 55 cents. Defendant further alleges that the plaintiff was not a passenger in continuous passage from Lester to Sioux Falls, he having stopped over at Garretson, but was a passenger from Garretson to Sioux Falls as a complete trip; and that the plaintiff refused to comply with the passenger tariff schedule as above set forth, by refusing to pay his fare according thereto, from Garretson to Sioux Falls. The original ticket is made a part of these pleadings, and discloses the fact that the ticket agent of defendant at Lester neglected to punch the ticket as required by the recitals on its face, so as to indicate the limitation to a continuous trip required by the order of the Interstate Commerce Commission permitting the lower charge for the transportation. On the face of the ticket appears the following: "I agree to the above conditions Purchaser;" but this agreement was not signed by the purchaser. The plaintiff demurred to the answer on the ground that the facts stated do not constitute a defense, which demurer was sustained by the trial court, and the appellant assigns this ruling as error.

The record discloses that the agent of defendant at Lester, Iowa, either intentionally or inadvertently sold the plaintiff an unlimited ticket or contract for transportation from Lester, Iowa, to Sioux Falls, S. D., for the sum of 75 cents. This transaction, whether entered into by the agent and purchaser intentionally or inadvertently, was a violation of the order of the Interstate Commerce Commission. It is admitted by the record that the order of the Commission, contained the requirement that tickets sold at this special rate must be for continuous passage, and that stop-overs could not be allowed, and that the order had been regularly filed, and posted in the station of defendant at Lester, Iowa. There can be no doubt, we think, under the construction given the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) by the federal courts, that every person dealing with an interstate carrier is as effectually bound by the law and the orders of the Commission, as to both freight and passenger tariffs, as is the carrier himself. To hold that either party under any conditions may be estopped from asserting the illegality and invalidity of a contract made in violation of the interstate law and the orders of the commission, would afford an easy means for its evasion, and might result in its practical annulment.

Plaintiff can recover damages only for a refusal of defendant's conductor to comply with a valid contract to transport him from Lester, Iowa, to Sioux Falls, S.D. Section 545 of the Civil Code provides:

"If any passenger shall refuse to pay his fare it shall be...