Pouilin v. Canadian Pac. Ry. Co.

• Decision Date: 11 October 1892
• Docket Number: 42.
• Parties: POUILIN v. CANADIAN PAC. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

52 F. 197

POUILIN v. CANADIAN PAC. RY. CO.

No. 42.

United States Court of Appeals, Sixth Circuit.

October 11, 1892

Statement by TAFT, Circuit Judge:

Plaintiff was a resident of the city of Toledo, Ohio, and the defendant was a railway corporation organized under the laws of the Dominion of Canada. The facts shown by the evidence were as follows: Plaintiff applied to the ticket agent of defendant in the city ticket office in Detroit for two tickets from Detroit to Quebec and return. The ticket agent received his money and gave him two tickets, made up of two coupons each. After leaving the ticket office, plaintiff went to the station to which the ticket agent had directed him, and while there gave one of the tickets to a friend for whom he had purchased it. In doing so his attention was directed to his own ticket, which led him to think, as he says, that 'it was not exactly right,' for he saw that though he had asked for a ticket from Detroit to Quebec and from Quebec to Detroit, the agent had given him a ticket made up of two coupons, each of which purported to entitle him to passage from Detroit to Quebec. He went to the ticket office in the station, and asked the person who was there to exchange the ticket for a proper one. This person replied that the agent who had authority to make the exchange was not in, but that he thought the ticket as it was would be all right, and that conductors would understand the mistake. Plaintiff took the train in a few minutes thereafter, and by giving up the first coupon of his ticket obtained passage to Quebec, where he visited friends for several weeks. Returning, plaintiff offered the remaining coupon of his ticket to the conductor of the train between Quebec and Montreal, who said it was a mistake which he could not understand, but that it was all right, and he punched it. On the train from Montreal to Toronto, however, another conductor declined to take the ticket, on the ground that it was not good, and required plaintiff to pay his fare or leave the train. Plaintiff had not sufficient money to pay his fare, and was obliged to leave the train at a station 20 miles west of Montreal. Returning thence to Montreal, he applied to the main offices of the defendant, where his ticket was exchanged for a correct one, and he then resumed his journey. He suffered considerable inconvenience because of the delay. It appeared that the rules of the company forbade conductors to accept such a ticket for passage from Quebec to Detroit.

The plaintiff declared in trespass on the case on the negligence of the ticket agent in selling him a wrong ticket, and asked damages for all its consequences to him. The evidence showing the facts as stated, the court directed the jury to return a verdict for the defendant, because the injury which the plaintiff had suffered was the consequence of his contributory negligence. A writ of error was sued out to the judgment entered on the verdict, and the error assigned was to the direction of the court.

Charles T. Wilkins, for plaintiff.

F. H Canfield, (Angus McMurchy, on brief,) for defendant.

Before BROWN, Circuit Justice, and JACKSON and TAFT, Circuit Judges.

TAFT Circuit Judge, (after stating the facts.)

Counsel for the defendant contends that under the practice in Michigan, where the common-law form of procedure still obtains, the judgment for defendant should not be disturbed because the gist of plaintiff's action is breach of contract, whereas he has declared in tort. The objection was raised on demurrer in the court below, and overruled. The reasons of the learned district judge for this ruling are fully set forth in Pouilin v. Railway Co., 47 F. 858. Upon the correctness of the conclusion there reached we do not express an opinion, because we think that irrespective of the form of action, the court was right in directing a verdict for the defendant on the admitted facts of the case. The contract of carriage between the parties was made by the plaintiff with the city ticket agent of the defendant at Detroit. The terms of that contract were that, in consideration of the fare paid, the defendant company would give to the plaintiff a token or ticket which, upon exhibition to defendant's conductors or other agents in charge of defendant's trains, would secure his safe carriage from Detroit to Quebec and back again. The city ticket agent committed a breach of the contract by delivering a token or ticket purporting to entitle the plaintiff to two passages from Detroit to Quebec. The plaintiff had his right of action for all the damages which would naturally flow from such a breach, in the contemplation of the parties when the contract was made. It is possible that, if trespass also lies at the election of the plaintiff, the measure of damages would be somewhat wider. The question is immaterial here. The plaintiff, before he went aboard the train from which he was ejected, discovered that the agent had made a mistake, and that he had not delivered to him a ticket which on its face entitled him to return from Quebec to Detroit. The law settled by the great weight of authority, and but recently declared in a case in this court, (Railway Co. v. Bennett, 50 F. 496, 1 C.C.A. 544,) is that the face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage between the passenger and the company. The reason for this is found in the impossibility of operating railways on any other principle, with a due regard to the convenience and safety of the rest of the traveling public, or the proper security of the company in collecting its fares. The conductor cannot decide from the statement of the passenger what his verbal contract with the ticket agent was, in the absence of the counter evidence of the agent. To do so would take more time than a conductor can spare in the proper and safe discharge of his manifold and important duties, and it would render the company constantly subject to fraud, and consequent loss. The passenger must submit to the inconvenience of either paying his fare or ejection, and rely upon his remedy in damages against the company for the negligent mistake of the ticket agent. There is some conflict among the authorities, but the great weight of them is in favor of the result here stated. Bradshaw v. Railroad, 135 Mass. 407; Townsend v. Railroad, 56 N.Y. 295; Frederick v. Railroad Co., 37 Mich. 342; Shelton v. Railway Co., 29 Ohio St. 214; Dietrich v. Railroad Co., 71 Pa.St. 432; Petrie v. Railroad Co., 42 N.J.Law, 449; Railroad Co. v. Griffin, 68 Ill. 499; Hall v. Railway Co., 15 F. 57; Pennington v. Railroad Co., 62 Md. 95; Johnson v. Same, 63 Md. 106; Mechem's Hutch. Car. Sec. 580i.

In the opinion of the majority of the court, the plaintiff was bound to know the law, and, when he discovered that his ticket on its face did not secure him carriage from Quebec to Detroit, he was bound to know that the conductor of the defendant would be justified in refusing to recognize it as evidence of his right to such carriage. Could he then incur the risk of expulsion from the train by taking passage with this ticket, and, if expelled, charge his consequent injury and inconvenience to the mistake of the ticket agent? A majority of the court is of opinion that he could not. It matters not whether his action sounds in tort or in contract. If in tort, then the rule is that he cannot recover any damages for an injury growing out of the negligence of the defendant, which, by the use of due care, he might have avoided. If in contract, then it was his duty to use due diligence to reduce the damages from the breach, and failure to do so prevents recovery for any damages which might by due diligence or care have been avoided. Knowing, as the plaintiff did, that his ticket did not purport to give him a right to be carried on defendant's train from Quebec to Detroit, and charged, as he was, with the knowledge that this was conclusive evidence of his contract to the conductor, his conduct in getting upon the train at Quebec with the ticket was negligence as a matter of law, and it was unnecessary to submit the question to the jury. The plaintiff admittedly...