Pullman Palace Car Company v. Marsh
| Decision Date | 12 May 1899 |
| Docket Number | 2,817 |
| Citation | 53 N.E. 782,24 Ind.App. 129 |
| Parties | PULLMAN PALACE CAR COMPANY v. MARSH |
| Court | Indiana Appellate Court |
Rehearing denied February 17, 1900.
From the Bartholomew Circuit Court.
Reversed.
S Stansifer and C. S. Baker, for appellant.
C. J Kollmeyer, for appellee.
The appellee's complaint against the appellant contained two paragraphs, in the first of which it was alleged, in substance, that the appellee had purchased of the Louisville and Nashville Railway Company transportation for himself, his wife, and his son from Louisville, Kentucky, to Nashville, Tennessee, for a certain excursion, represented by a pass for himself and wife and a separate pass for his son; that on the 2nd of July, 1897, he purchased from the appellant's sleeping-car ticket agent at Louisville section fifteen, consisting of an upper and a lower berth, in one of appellant's sleeping-cars attached to a passenger train about to depart from Louisville for Nashville on the Louisville and Nashville Railroad, and said agent issued to appellee a passenger's check for said section, appellee paying the agent at the time $ 4, which, by agreement theretofore made by J. W. Cockrum, secretary, on behalf of the Southern Indiana Press Association and the members thereof, the appellee, his wife, and son being such members, and on behalf of the appellant by E. A. Jewett, its assistant general superintendent, paid for said section on the journey to Nashville, and also for a section in the sleeping-car to be attached to the passenger train returning appellee, his wife, and son to Louisville. It was alleged that this agreement was in writing, but the appellee did not know that it was verbatim, it being in the possession of the appellant, and appellee not having access thereto; that the substance thereof was that the members of said press association could avail themselves of sleeping-car accommodations at one-half the usual rate, provided they paid both going and coming accommodations in advance at Louisville; that appellee had paid said agent, in accordance with said agreement, $ 4, as aforesaid, which entitled him, as aforesaid, to a full section in appellant's sleeper both going and coming; that on the journey to Nashville appellee's wife and son occupied the lower berth of said section fifteen, and appellee the upper berth; that on the 3rd of July, 1897, appellant's sleeping-car ticket agent at Nashville issued to appellee a passenger's sleeping-car ticket for section three in a sleeping-car attached to a passenger train about to depart from Nashville, on which the appellee, his wife, and son held tickets for return transportation; that before entering the train, appellee, feeling indisposed and sick, requested, and said sleeping-car ticket agent agreed, to exchange the upper berth in section three for the lower berth in section one, and said agent noted the change on the back of appellee's said ticket; that the party entered the car, and the wife and son at once retired in the lower berth of section three, which they were permitted to occupy together during the return journey, without objection on the part of the appellant's agent in charge of the car; that, thereupon, appellee attempted to retire in the lower berth of section one, and exhibited to the conductor his sleeping-car ticket with said indorsement thereon, but the conductor refused appellee admission to the berth, claiming, in insulting language, and a loud tone of voice, within the hearing of the carload of passengers, that appellee was not entitled to said berth; that, thereafter, appellee demanded the upper berth of section three, but the conductor, in like manner, refused; that the conductor, by said manner and refusals, placed appellee before the passengers in the light of a person seeking to defraud the appellant, and publicly shamed and humiliated the appellee; that the conductor knew appellee was entitled to one of said berths, and was sick; that appellee was compelled to stand on the platform of the sleeping-car, and to stand and sit in the common passenger coaches, which were crowded; that the wrongful refusal to permit appellee to occupy one of said berths caused him to suffer great physical and mental pain, and aggravated his sickness. There were also averments relating to appellee's separation from his wife and son, and it was alleged that he lost the sum of $ 2 paid for said sleeping-car accommodations without receiving any value therefor; his entire damages being laid in the sum of $ 1,000. The second paragraph was like the first, except that it was alleged that the contract between the secretary of the press association and the assistant general superintendent of the appellant was an oral agreement.
The appellant answered in two paragraphs, the second being a general denial. In the first paragraph of answer, a demurrer to which was sustained, it was shown that the only contract made by said secretary on behalf of the press association or the members thereof with said assistant general superintendent on behalf of the appellant concerning said excursion, was evidenced by and contained in certain written correspondence, or letters, made exhibits of this paragraph that, by the terms of said contract, it was stipulated, in substance and effect, that delegates should pay full fare to Nashville, where A. W. Reppy, the agent of the appellant, upon presentation of a receipt showing the fare paid to Nashville, and the usual credentials, would furnish passes for the return trip; that the only receipt presented by the appellee to the appellant's said agent at Nashville was one for fares paid from Louisville to Nashville, "J. N. Marsh and wife" being named therein as passengers, and as having occupied the lower and upper berths of section fifteen of appellant's car "Cuero"; that appellant's said agent thereupon issued to appellee and his wife, as "J. N. Marsh and wife," a pass entitling them, and them only, to one section in one of appellant's sleeping-cars returning from Nashville to Louisville; that, pursuant to the terms of said pass, appellant's agent thereon assigned to appellee and his wife section three in car "Leitrim", the upper berth of which section was afterward, at the request of the appellee, exchanged for the lower berth of section one of said car, as alleged in the complaint; that thereafter, upon boarding said car, appellee's wife and son, with the consent, and upon the instance of the appellee, occupied the lower berth of said section three; that "plaintiff thereby waived and released all right to...
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