Norfolk & W. R. Co. v. Wysor

• Decision Date: 08 July 1886
• Citation: 82 Va. 250
• Court: Virginia Supreme Court
• Parties: N. & W. RAILROAD CO. v. WYSOR.

82 Va. 250

N. & W. RAILROAD CO. v. WYSOR.

Supreme Court of Appeals of Virginia.

July 8, 1886

Error to judgment of circuit court of Wythe county, rendered November 26th, 1885, in an action wherein H. C. Wysor was plaintiff and the Norfolk and Western Railroad Company was defendant. Verdict was for plaintiff for $550 damages. On divers points, saved at the trial, the defendant company obtained a writ of error and supersedeas.

Opinion states the case.

W H. Bolling, for the plaintiff in error.

James A. Walker and Ro. Crockett, for the defendant in error.

1st. The demurrer was properly overruled. There are three counts in the declaration. The demurrer is a general demurrer, and if either count is good the demurrer cannot be sustained. Hollingsworth v. Milton, 8 Leigh 50; Henderson v. Stringer, 6 Gratt. 133; 4 Minor 485; Smith v Floyd, 16 Gratt. 309.

The third count is liable to none of the objections urged to the declaration, and is unquestionably good; but all the counts are good, since there is " no defect or imperfection in them and nothing omitted so essential to the action, that judgment, according to law and the very right of the case cannot be given." Code 1873, ch. 167, sec. 12.

There was no misjoinder of counts. Code 1873, ch. 145, sec. 6, provides that in any case where an action of trespass will lie, there may be maintained an action of trespass on the case--that is, counts in trespass may be joined to counts in case, in an action in the case. 5 Barton's Pr. 185; Parsons v. Harper, 16 Gratt. 742; 1 Chitty Pl. 231; 4 Minor 366.

II. There is no error in the instruction given by the court. The instruction contains two propositions only, viz: 1st. That a substantial compliance with the conditions on which the ticket was issued to the holder was sufficient. 2d. That it was a substantial compliance with the condition, " coupons not good for passage if detached," if the rightful holder of the ticket tore off the proper number of coupons in the presence and sight of the conductor, and presented them along with the ticket to the conductor for his examination and verification. The first branch of this instruction is not objectionable, since the law is always satisfied with a substantial compliance with a contract, unless it involves a forfeiture or a penalty. The second branch of the instruction is clearly right if the first is. It is not denied that the facts assumed show a substantial compliance with the condition. But if it were true that a literal compliance with the condition, " coupons not good for passage if detached, " was required, it was a literal compliance to tear them off in the presence and sight of the conductor, & c. The mere tearing off the coupon is not detaching it. The word detach means more than a mere physical severance of the parts of a whole. It means to disunite the parts and then to separate them. The word detach is a compound word, meaning to thrust or send away. To detach the coupons from a ticket means to thrust or send them away from the ticket. The mere tearing them from the ticket, without separating them from the ticket, was not detaching them. Nor was there error in the rule laid down by the court to guide the jury in assessing damages. In every case where a carrier wrongfully ejects a passenger from its coaches, it is in violation of an express contract, and it matters not that the passenger in this case was travelling on a 2,500 mile ticket. The wrongful eviction is governed by the same rule as to damages in all cases. The damages in such cases have never been held to be merely compensatory. The actual pecuniary loss may not be one dollar, and the special damage for breach of the contract may only be the loss of a pleasure trip. Such a rule of compensation would be a mockery. The rule laid down by the court in this case was very liberal to the railroad. It instructs the jury that the defendant is " liable for damages, to be estimated according to the time, place and circumstances attending the eviction, and the inconvenience and special damages sustained by the party evicted. Nor does it alter the case that the passenger left the train when ordered to leave by the conductor without waiting to be rudely assaulted by the employees of the defendant. In no case can a passenger be expected to make physical resistance to the agents and officers of the company, and to wait until he is dragged forcibly from the cars.

III. The court did not err in refusing the instruction asked for by the defendant. These instructions assert a high prerogative on behalf of railroad companies, which is not possessed by other people. The first asserts the doctrine that a passenger cannot insist upon a just and proper construction of his rights, but must abandon his contract, and accept such an one in its stead as the " head of the department" may graciously consent to give him by his construction of the agreement in dispute. The second asserts a similar doctrine, viz: that the plaintiff had no right to enter the train relying upon the true meaning of his contract and assert his right to ride on the coaches of defendant, if the defendant objected thereto. The third instruction insists on the same doctrine as the 1st and 2d, viz: that if the defendants evicted the plaintiff under a mistaken view of the contract and of the rights of the plaintiff, they are not liable for more than actual damages. It seeks to make the passenger responsible for the mistakes of the railroad officials. The construction of this contract had been a matter of dispute, previously between the plaintiff and the conductor, and the " head of the department" had persisted in his error, and in the instructions to eject the plaintiff. For such willful and persistent continuance in error the defendant is liable for more than actual damages. The whole theory of these instructions is to set the " heads of departments" above the courts and to make their construction of the contracts of the company a law, not only to their employees and agents, but for the public.

IV. The damages are not excessive. The defendants willfully and persistently violated their contract with the plaintiff, and by the exercise of their arbitrary and unlimited power over their trains and passengers they ejected a passenger who had paid his fare and was properly on their coaches. Such an act is harsh, oppressive, arbitrary, and offers indignity and insult for which the damages assessed in this case are reasonable.

OPINION

FAUNTLEROY, J.

This suit is a common law action of trespass on the case for damages for the alleged violation by the defendant company of its special contract with the plaintiff, embodied in the terms and conditions of what is called a " " commutation ticket," and entitled on its face: " No. 161. Norfolk and Western Railroad Company. 2,500 mile ticket. Form C. Good over the Norfolk and Western railroad, and all divisions, and Shenandoah Valley railroad." There was a general demurrer to the declaration, which was overruled by the court. The declaration sets out a special contract, made by the plaintiff with the defendant for the transportation of the plaintiff over the roads of the defendant at a rate greatly less than the regular passenger fare. To show his rights as a passenger, and the defendant's duties to him as such, the plaintiff sets out in his declaration the special contract of carriage as contained in his said commutation ticket. This said contract contains and expresses certain conditions and stipulations, with the reservation of distinct rights to the company, which the plaintiff accepted by a writing signed by him " in consideration of the reduced rates at which the ticket was sold to him." These said conditions and stipulations, thus distinctly set out in the contract itself, are fully and particularly explained in the " instructions to conductors, " which are printed in the ticket, and to which the attention of the plaintiff was specially called before he signed and accepted the contract of which they are part and parcel, and which, when read, admit of no doubt or question as to what was the intent of the parties when the contract was entered into as to the mode in which it was to be performed.

To entitle the plaintiff to recover in this action for an alleged violation of this contract, he must aver in his declaration, and prove that he had faithfully performed his part of the contract, or was willing and ready to perform it, but was prevented by the failure or inability of the railroad company to perform it on their part.

The declaration nowhere alleges, avers, or pretends that the plaintiff had complied with the terms of the contract and performed what was required of him; but the averments of his declaration show that he had willfully and deliberately violated both the letter and spirit of the contract, and had assumed such an attitude towards the defendant railroad company and its servants, as to prevent entirely the performance of the contract between him and the company, as it was intended and agreed. The contract is entire, and it must be construed as a whole. To strike out the conditions and stipulations which constitute the consideration or inducement to the company to enter into the special contract to carry the plaintiff at a reduced rate--only a little more than one-half of their regular fare--would be to destroy the contract and deprive it of its character as a special contract differing from that implied in the regular tickets sold by the company, and which the law makes in favor of every passenger who gets upon the train and pays his full passenger fare. For the foregoing reasons the demurrer to the declaration should have been sustained. But the declaration is demurrable on the ground of a misjoinder of actions. The...