Sanden v. Northern P. Ry. Co.
| Decision Date | 22 April 1911 |
| Citation | 115 P. 408,43 Mont. 209 |
| Parties | SANDEN v. NORTHERN PAC. RY. C0. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by Mina Sanden against the Northern Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.
James M. Hinkle and Chas. A. Wallace, for appellant.
Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for respondent.
The purpose of this action is to recover damages alleged to have been sustained by plaintiff by being wrongfully ejected from one of defendant's trains by the conductor in charge thereof. On October 7, 1907, Frank Sanden purchased at the ticket office of defendant at St. Paul, Minn., transportation for himself and plaintiff, his wife, represented by two tickets, from that point to the city of Seattle, Wash., by way of Butte, Mont. The tickets were in the form of contracts, both signed by the husband. It is not controverted that in signing plaintiff's ticket her husband acted as her agent, and that she was bound by the stipulations contained therein in so far as she should be bound by them. The body of the ticket is the following:
Good for One Continuous Second-Class Passage.
St Paul (U. D.) Minn., to Seattle, Wash.
Subject to the following contract:
1st. This ticket is not good for passage if it shows any alterations or erasures.
2d. In accepting this ticket, which is not transferable, having been sold at a reduced rate, the holder whose signature is attached hereto, expressly agrees to use the same for a continuous trip to destination before midnight of date cancelled by punch mark in margin; otherwise the holder further expressly agrees to forfeit this ticket and pay full fare to destination.
3d. The purchaser agrees that the value of his [or her] baggage does not exceed $100.
4th. This ticket is subject to exchange, either whole or in part, at any point on the route for a continuous passage ticket or check.
A. M. Cleland, General Passenger Agent.
[Signed] Frank Sanden, Purchaser.
[Signed] ................. Witness.
The punch marks on the margin allowed up to and including October 12 within which to complete the journey. The two immediately entered a regular through train of defendant, bound to their destination. A short distance from St. Paul the train auditor took up both tickets and delivered in their stead exchange or identification checks, of which the following is a copy:
30 Day Limited | 1st Class Limited | 2d Class Limited | Half
Northern Pacific Railway Co. Conductor's Exchange Check. Non-Transferable, and subject to forfeiture if presented by any person other than the original holder.
To point Cancelled in Margin.
This check entitles the holder, whose appearance must correspond with description indicated by punch marks in left-hand margin, to one passage of class, and to the destination cancelled hereon. The date cancelled in margin indicates the limit of ticket in lieu of which this check is issued, and this check must therefore be used to destination before midnight of such date. Stop-over may be allowed on this check if it bears a thirty-day limit (upon application to conductor.)
A. M. Cleland, Gen'l. Passenger Agent.
The punch marks in the margin of the one delivered in lieu of plaintiff's ticket indicated the physical description of the plaintiff, the destination to which she was bound, the date at which her journey should end, and also that the ticket for which the check was issued was a second-class limited ticket. On the back, under the words "Signature of Passenger," is written the signature of Frank Sanden. It is admitted that he signed this also as the agent of plaintiff. On the way between St. Paul and Butte the plaintiff and her husband, desiring to stop off at the latter place, applied to the conductors on the different divisions to know whether they were entitled to stop-over privileges on the tickets purchased by them. They were informed that they were, but were referred to the conductor in charge on the run into Butte. As the train was approaching Butte, they inquired of this conductor as to their right to stop-over privileges. They were informed that they could stop over for one day and take the same train on the following day, but that they had best consult the ticket agent at Butte. This they did when the train arrived there, and were advised by him that, since their tickets allowed them one day longer than the schedule time between St. Paul and Seattle, they could stop over for that one day. Thereupon both left the train and remained there during the day. On the next day, intending to resume their journey, they entered the train indicated by the conductor and agent. When their tickets were demanded, they presented the exchange checks. The conductor refused to accept them, though both informed him of what had been told them by the agent at Butte and the conductor in charge on the preceding day, and required them to pay full fares or leave the train. They declined to pay the required fares, and when the train reached Durant, a small station in the mountains about 18 miles west of the city, they left it. This was between 9 and 10 o'clock in the evening. They remained there until 2 o'clock on the following morning, when they returned by train to Butte. It is not alleged, nor does it appear that the conductor used any force or threats to induce them to leave the train. Nor does it appear that they were exposed for want of proper shelter.
The theory of the complaint is that the plaintiff had the right to rely upon the information given by the conductor and the agent at Butte, and that, notwithstanding she received no written permission from either to stop over, she was nevertheless entitled after being verbally informed by them that she could stop over to resume her journey and complete it to her destination. The pleadings are voluminous, but present only two issues, viz.: Whether the conductor or the agent or both gave plaintiff the information alleged, and the extent of the injury which she suffered. Upon the facts shown by the evidence, substantially as stated above, the trial court, being of the opinion that the plaintiff was not entitled to recover, directed a nonsuit, and judgment was entered for the defendant accordingly. The appeal is from the judgment and an order denying plaintiff's motion for a new trial.
The contentions made by counsel for plaintiff may be stated thus: (1) That by taking up the ticket purchased at St. Paul, and delivering in lieu thereof the exchange or identification check, the defendant substituted a new and different contract from that contained in the ticket, that under the recitals contained in the check the question whether the plaintiff was entitled to stop-over privileges was left to the conductor to whom she applied to decide, and that, having decided as he did, she was entitled to act upon his decision; and (2) that, though the recitals in the check are not subject to the construction given them by the conductor, and she would otherwise have been bound by the terms contained in the ticket, yet she had a right to rely upon the information given her by the conductor. The argument is that in either case the conductor of the second train had no right to eject her, and hence that the defendant is liable for the wrong suffered by her at his hands.
The substitution of the check for the ticket in no wise changed the terms of the original contract. The check clearly indicated by its recitals and the punch marks on the margin the class of passage to which the holder was entitled, and the limit within which the trip must...
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