Thompson v. Minnis

• Decision Date: 15 February 1949
• Docket Number: Case Number: 33305
• Parties: THOMPSON v. MINNIS
• Court: Oklahoma Supreme Court

1949 OK 29

202 P.2d 981

201 Okla. 154

THOMPSON v. MINNIS

Case Number: 33305

Supreme Court of Oklahoma

Decided: February 15, 1949

Syllabus

¶0 1. CARRIERS - Right of passenger for hire to rely on agent of railroad company in making out his ticket.

A passenger for hire has a right to rely upon the agent of a railroad carrier in making out his ticket or transportation and is not bound as a matter of law to read or examine such transportation before taking the train.

2. DAMAGES - Mental anxiety and anguish must have been produced by, connected with, or result of some physical suffering.

In an action for damages no recovery may be had for mental anxiety and anguish which is not produced by, connected with, or the result of some physical suffering or injury to the person enduring the mental anguish.

3. SAME - Damages allowable for mental anguish and anxiety resulting from physical suffering.

In an action for damages where there is some physical suffering or injury caused by the negligence of the defendant, damages for mental anguish and anxiety, resulting from physical suffering such as hunger and deprivation of a place to sleep, are allowable.

4. TRIAL - Refusal to give requested instruction not error if covered in general instructions given.

It is not error to refuse a requested instruction where the matters covered thereby are properly covered and presented by the general instructions given by the court.

Appeal from District Court, Sequoyah County; E.A. Summers, Judge.

Action by Robbie Minnis et al. against Guy A. Thompson, Trustee for the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed as to plaintiff Evelyn Minnis and affirmed as to plaintiff Robbie Minnis on condition.

Henry Donham, of Little Rock, Ark., Roy Frye, of Sallisaw, and Thomas Harper, of Fort Smith, Ark., for plaintiff in error.

Wall & Green, of Sallisaw, for defendants in error.

O'NEAL, J.

¶1 Defendants in error, Robbie Minnis and Evelyn Minnis, brought his action against the plaintiff in error to recover damages alleged to have been caused by the negligence of the agent of plaintiff in error at Sallisaw, Oklahoma, in erroneously selling Robbie Minnis a ticket to transport Evelyn Minnis and Betty Lou Minnis, a minor daughter of Robbie Minnis, from Sallisaw to Lebanon, Missouri, instead of from Sallisaw to Lilbourn, Missouri, as requested by the purchaser. It also included a claim for damages on behalf of Betty Lou Minnis, but a demurrer to the evidence as to her claim was sustained.

¶2 Robbie and Evelyn Minnis will be hereinafter referred to as plaintiffs, and plaintiff in error will be referred to as defendant, as in the trial court.

¶3 Plaintiffs are colored (Negro) people and Robbie Minnis is the mother of Betty Lou Minnis, who at the time the ticket was purchased was about two and a half years of age. Robbie Minnis was then about 20 years of age and lived at Sallisaw, Oklahoma.

¶4 Evelyn Minnis is the sister of Robbie Minnis' husband and lived at Lilbourn, Missouri.

¶5 On August 23, 1944, Evelyn Minnis was at the home of Robbie Minnis in Sallisaw and was about to return with Betty Lou to her home in Lilbourn, Missouri. On the same date Robbie Minnis went to the railroad station in Sallisaw to purchase a ticket for Evelyn Minnis from Sallisaw to Lilbourn, Missouri. Betty Lou was not required to pay any fare. The station agent was not in. Miss Lois Hawkins, station clerk, was in charge of the office. Robbie explained to her that she wished to purchase a ticket for her sister-in-law and little daughter, Betty Lou, to Lilbourn, Missouri, but that she did not intend to start until the next day, August 24th. For some reason, upon which the evidence is in conflict, she did not get the ticket at that time and Miss Hawkins asked her to come back the next day when Mr. Butler, the station agent, would be present.

¶6 The next day, at about 7:30 a.m. Robbie, Evelyn, and Betty Lou went to the station to purchase the ticket. The train upon which they were to make their journey was not due to leave until about 4:30 p.m. that day. Robbie told the agent that she wanted a ticket to Lilbourn, Missouri, and that she had been at the station the evening before and that Miss Hawkins was unable to find the proper form of ticket. There was some discussion of the route and Robbie explained that she thought it should be through Little Rock, Arkansas, and Memphis, Tennessee. Butler told her that it would be through Ft. Smith and Monett, Missouri. Butler then filled out the ticket and Robbie paid the money therefor, but the ticket was made out with "Lebanon, Missouri" as the destination, instead of Lilbourn, Missouri. The ticket was delivered to Robbie who in turn gave it to Evelyn who put it in her purse. Evelyn and Betty Lou boarded the train that afternoon and arrived at Lebanon, Missouri, the next morning at 2:30 a.m., and were told by the conductor or brakeman that they had reached their destination. When they got off the train Evelyn discovered that she was not in Lilbourn, but in Lebanon, a strange town and a place where she had never before been.

¶7 They were without funds and were afraid that Lebanon was a town where Negroes were not allowed. They explained their situation to the depot agent at Lebanon and he advised them that they had better stay in or around the depot. Being without means with which to purchase food, they stayed in or around the depot for about 24 hours without food or shelter other than the depot. Then a colored woman who lived in Lebanon heard of their plight and took them to her home and fed and kept them for about another 24 hours. In the meantime, they had wired to Robbie Minnis at Sallisaw explaining their situation. She did not have enough money to send them to buy transportation on to Lilbourn. She appealed to the depot agent at Sallisaw and he told her that all he could do was give her the home address of the office of the railroad company and she could write to them. Robbie obtained sufficient money to buy transportation from Lebanon to Lilbourn from relatives in Tulsa and wired it to Evelyn and she finally arrived at Lilbourn about two days later than she would have arrived had the mistake not been made.

¶8 Plaintiff alleged negligence on the part of the agent in making out a ticket for the wrong destination and sought damages in favor of Robbie Minnis in the sum of $1,000, plus $21.39 alleged to have been expended in getting Evelyn and Betty Lou through from Lebanon, Missouri, to Lilbourn; $1,000 damages in favor of Evelyn, plus $6 for her alleged loss of time; and $1,000 damages for Betty Lou. Defendant answered the petition by general denial. The issues were tried to a jury and, as stated, demurrer to plaintiffs' evidence was sustained as to Betty Lou. The verdict and judgment were for Robbie Minnis in the sum of $265.54 and for Evelyn in the sum of $250, and defendant appeals.

¶9 Ten assignments of error are presented under four propositions. It is first contended that the trial court erred in overruling defendant's demurrer to plaintiffs' evidence as to Robbie Minnis and Evelyn Minnis and in refusing defendant's requested instructions for a directed verdict in its favor.

¶10 In this connection defendant cites and relies in part on 13 O.S. 1941 § 16, which provides:

"A passenger . . . by accepting a ticket . . . with a knowledge of its terms, assents to . . . the time, place and manner of delivery therein stated. But his assent to any other modification of the carrier's rights or obligations contained in such instrument can only be manifested by his signature to the same."

¶11 Defendant cites Railway Express Agency v. Stephens, 183 Okla. 615, 83 P.2d 858. The case is not in point. There the bill of lading correctly reflected the actual contract of the parties and the plaintiff therein expressly agreed that the value of the goods to be transported was $150 instead of $750, the actual value. The reduced value was in consideration of a reduction in the charges for the transportation. Under said section that was a modification of the carrier's obligation based upon the reduction of the charges for transportation. The bill of lading was the correct contract between the parties and the court held that the plaintiff was bound thereby.

¶12 Defendant also cites Missouri Pacific R. R. Co. v. Prude, 265 U.S. 99, 68 L.Ed. 919. In that case the ticket purchased by plaintiff reflected the true contract between the parties. Negligence of the agent in preparing a ticket other than that which purchaser requested was not involved. In the case at bar, failure of the purchaser or passenger to read the ticket, which might have disclosed error, was at most contributory negligence, but contributory negligence was not pleaded in this case. However, the trial court did submit the issue of contributory negligence in the instructions to the jury in terms perhaps more favorable to the defendant than he would have been entitled to had contributory negligence been pleaded. The general rule is:

" . . . a passenger has a right to rely on the ticket agent, and is not bound as a matter of law to read or examine his transportation before taking the train. It is for the jury to say whether the passenger is guilty of negligence in not discovering the mistake of the agent before taking the train, and the mere failure to examine or read his ticket or contract of carriage is not conclusive on that question." Olson v. Northern Pac. Ry. Co., 49 Wn. 626, 96 P. 150.

¶13 That is a well considered case and therein the court cites cases from the Supreme Court of the United States and from several states in support of the rule announced. True, it is said that there is some conflict in the authorities, but we agree that the rule there stated is the better...