Nichols v. Southern P. Co.

• Decision Date: 31 October 1892
• Citation: 23 Or. 123,31 P. 296
• Parties: NICHOLS v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

31 P. 296

23 Or. 123

NICHOLS v. SOUTHERN PAC. CO.

Supreme Court of Oregon

October 31, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by Ludwig S. Nichols against the Southern Pacific Company for ejection from defendant's train. Judgment for plaintiff. Defendant appeals. Affirmed.

W.D Fenton, for appellant.

A.F Sears, Jr., for respondent.

LORD C.J.

This was an action to recover damages from the defendant for ejecting the plaintiff from its cars. The judgment was for the plaintiff, from which the defendant has brought this appeal.

As appears from the evidence, the ground upon which the defendant ejected plaintiff from its cars was that he was not the original purchaser of the ticket upon which he claimed the right to ride on its cars from Portland to San Francisco. With the exception hereafter noted, the ticket was as follows:

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On its back was stamped these words: "Baltimore and Ohio Railroad Company, April 8, 1891, Columbus, Ohio, City Ticket Office." The evidence shows that the plaintiff bought this ticket on the 20th day of April, 1891, in Seattle, for $12, and there signed it; that he was not in Columbus, Ohio, on the 8th day of April, 1891, when the ticket purports to have been issued; that the ticket is just as it was when plaintiff bought it, with the exception of his signature, and the coupon slip, entitling him to ride from Seattle to Portland, which the conductor detached during his passage between these places, on the 20th of April, 1891 that the plaintiff went aboard of defendant's cars at Portland on the night of the 21st of April, 1891, in continuation of his journey to San Francisco, and that soon after the train started, and when only a short distance from Portland, Mr. Blue, the ticket inspector, demanded to see the plaintiff's ticket, which he produced and handed to him, it being the same ticket as the above, who, after examining it and requiring the plaintiff to write his name on the back of it, informed the plaintiff that he was not the original purchaser of the ticket, and that he must pay his fare or get off of the train, and at the same time put the ticket in his pocket, and refused to return it to the plaintiff, when he subsequently demanded it before leaving the train; that the plaintiff, finding when the train reached Oregon City that force would be used to expel him unless he paid his fare, and not having sufficient money for that purpose, got off of the train, and came back to Portland the next day.

Substantially upon this state of facts the trial court charged the jury, in effect, that "if the plaintiff was in possession of the ticket within the time limited upon its face when it should be used, and went on board of the cars of the defendant, and presented this ticket as an evidence of his right to ride, and he was put off the car upon the ground that he was not the original purchaser of the ticket, then the expulsion of the plaintiff from the car was wrongful, and the plaintiff would have a right to recover;" that "the holder of the ticket was not precluded from transferring it to another at the end of any particular section of this journey, which the ticket indicated that the holder might perform, and that there was no prohibition in law or in fact against the transfer of such ticket as this, at the end of any particular part of the journey indicated by the coupons which made up the ticket originally, and it was no valid objection to this man's riding upon the train that he was a different person from the person to whom the ticket was originally delivered when first purchased;" that "if there had been a stipulation on the face of this contract that the ticket was not transferable, the rule would have been different. That would be a valid and sufficient contract, and the party taking the ticket would be bound by it, and, if not, the original purchaser would have no reason to complain, if put off the train."

While there are some other assignments of error arising out of exceptions taken to the evidence, and to other instructions of the court, some of which include the same objection, and to which we shall presently advert, the main ground of contention is based upon the alleged error contained in the instructions referred to above. This contention is that the ticket or contract is entire and personal, and not assignable. Upon its face the contract indicates that the ticket was issued by the Baltimore & Ohio Railroad Company, as principal as to its own lines of railroad, but as agent as to the lines of other railroads to be passed over, including the defendant company's road. The contract was entire as to a passage over the line of each road, which, when begun, must be completed, but was severable as between the different roads. It was a distinct contract as to each road. Each company, through the agent selling the ticket, made a contract for passage over its road. Between tickets of this sort, usually denominated "coupon tickets," which entitle the holder, not only to passage over the line of the company issuing them, but also over connecting lines to reach his destination, and the ordinary ticket, which entitles the holder to passage only over the line issuing it, there is usually this distinction: that, in the absence of a contract for a continuous passage only, or through transportation, the holder of a coupon ticket is not bound to continue his passage without intermission when once begun, but may stop off at the end of each line for a reasonable time without losing his right to resume it, while the holder of an ordinary ticket cannot temporarily discontinue his passage when once begun without losing his right to resume it, unless otherwise agreed. Hutch. Carr. §§ 577, 578.

In cases of this last sort, both parties are held to a continuous performance, when the transportation is once begun, until it is completed. As WALKER, J., said: "When the company has entered upon the performance of their contract, the passenger has a right to insist that it shall continue until completed. On the other hand, the right is reciprocal. When the passenger presents his ticket, and the road has entered upon the fulfillment of their contract, they have an equal right to insist that it shall be continuous till completed; that they shall not be required to perform it in fragments." Churchill v....