Way v. Chicago, Rock Island & Pacific R'Y Co

• Decision Date: 07 June 1884
• Citation: 19 N.W. 828,64 Iowa 48
• Parties: WAY v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

19 N.W. 828

64 Iowa 48

WAY v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Des Moines

June 7, 1884

Appeal from Mahaska Circuit Court.

THE plaintiff is the administrator of the estate of John Way deceased. The action was brought by the decedent. After his death the present plaintiff was substituted. The plaintiff claims to recover for a personal injury alleged to have been received by the decedent as a passenger on one of defendant's trains, and by being thrown against a cupola platform, by defendant's negligence in making a coupling. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

REVERSED.

M. A Low, for appellant.

John F Lacey, for appellee.

OPINION

ADAMS, J.

In April, 1881, the decedent took passage upon a freight train at Monroe, Jasper county, for Oskaloosa. In payment of his fare, he presented a mileage ticket, which had been issued to one R. G. Forgrave, at commutation rates. The conductor of the train, without knowledge that Way was not Forgrave, detached the coupons for his passage. Printed upon the ticket were several conditions, and also a printed acceptance of the conditions, which was signed by Forgrave, and the whole was denominated a contract. One of the conditions is in these words: "This ticket is positively not transferable, and, if presented by any other than the person whose name appears on the inside of the cover, and whose signature is attached below, it is forfeited to the company."

The defendant's theory upon the trial below was, that the decedent was not a passenger within the meaning of the law, and asked the court to instruct accordingly. This the court refused to do, and gave an instruction in these words: "If you find from the evidence that the decedent was injured to the damage of his estate substantially as alleged, and that he was at that time riding in a caboose in the defendant's train, on the mileage ticket in evidence, issued by the defendant to R. G. Forgrave, and that, upon its presentation in payment for transportation, the conductor of the train accepted the ticket, and recognized and treated the decedent as a passenger, the defendant's duties and obligations were, and its liabilities now are, the same as if the ticket had been issued to the decedent, whether prior to the accident he disclosed to, or the conductor knew, his identity or not."

In respect to the measure of care which common carriers owe to passengers, the court gave an instruction as follows: "Common carriers of persons are required to do all that human care, vigilance and foresight can reasonably do, in view of the character and mode of conveyance adopted, to prevent accident to passengers. Not the utmost degree of care which the human mind is capable of inventing, but the highest degree of care and diligence which is reasonably practicable under the circumstances, is what is required."

The giving of these instructions is assigned as error. The defendant insists that the contract relied upon, as constituting the relation of common carrier and passenger, was obtained by imposition and virtual misrepresentation, and, it being now repudiated by the company by a denial by it of its liability, the plaintiff cannot be allowed to set it up as binding upon the company; and that, if the relation of common carrier and passenger did not exist, the company did not owe the decedent the measure of care set forth it the instruction.

It appears to us that the defendant's position in this respect is well taken. When the decedent presented the ticket, we must presume that he intended to be understood as claiming that he had a right to travel upon it. This claim involved the claim that he was Forgrave, for the ticket showed upon its face that no one had a right to travel upon it but Forgrave. By the presentation of the ticket, the decedent falsely personated Forgrave, with the intention of deceiving the company; and he did deceive it, and to its injury, for, by reason of the deception, he escaped the payment of the full rate with which he was otherwise chargeable.

It is not material, then, that the decedent obtained the conductor's consent. Whether his consent would have bound the company, if he had known that the decedent was not Forgrave, we need not inquire; it certainly did not under the circumstances shown. The only relation existing between the decedent and the company having been induced by fraud, he cannot be allowed to set up that relation against the company as a basis of recovery. He was, then, at the time of the injury, in the car, without the rights of a passenger, and without the right to be there at all. We do not say that it is necessary that a person should pay fare to be entitled to the rights of a passenger. It is sufficient, probably, if he has the consent of the company fairly obtained. But no one would claim that a mere trespasser has such rights; and it appears to us to be well settled that consent obtained by fraud is equally unavailing.

The plaintiff insists that the extraordinary care described in the instruction does not become due from common carriers by reason of any contract, but simply by a rule of law which enforces the duty upon broader grounds. It is not important to inquire precisely how the duty arises. However it arises the duty is one which the common carrier owes only to passengers, and if, as we hold, the decedent did not sustain that relation within the meaning of the law, the company did not owe that duty to him, and that is the end of the inquiry. The doctrine which we announce was very clearly expressed in T., W. & W. R. Co. v. Beggs, 85 Ill. 80. In that case the court said: "Was defendant a passenger on that train in the true sense of that term? He was traveling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Under such circumstances, the company could only be held liable for gross negligence, which would amount to willful injury." In Thompson on Carriers of Passengers, 43, section 3, the author goes even further. After stating the rule that the relation of carrier and passenger does not exist where one fraudulently obtains a free ride, he says: "This doctrine extends further, and includes the case of one who knowingly induces the conductor of a train to...