Yazoo & M.V.R. Co. v. O'Keefe
| Citation | 125 Miss. 536,88 So. 1 |
| Decision Date | 18 April 1921 |
| Docket Number | 21743 |
| Parties | YAZOO & M. V. R. CO. v. O'KEEFE |
| Court | Mississippi Supreme Court |
1 CARRIERS. Carrier not required to accept unattended child of tender years, but, if it does so, is liable for neglect of duty; if carrier seeks to limit ticket agent's power to contract, limitations must be posted or brought to passenger's attention.
The carrier of passengers is not required to accept, unattended a child of tender years needing special attention, but it may do so, and, if it does, it is liable for injury caused by its neglect of duty. The ticket agent generally has power to make contracts for the carrier for the carriage of passengers, and such contracts are within the scope of his apparent duties. If the carrier seeks to limit his powers, it must have its rules limiting the agent's powers posted in its passenger depots, or else it must call the passenger's attention to the limitation, or bring it to his attention, to prevent liability for breach of a special contract by its ticket agent.
2 CARRIERS. Instructions as to liability for carrying child past destination in violation of special contract held not erroneous.
In a suit for damages for failure to put a child off at its destination, under a special contract so to do, to instruct the jury that, if the jury believed the ticket agent agreed that the conductor would put the child off at its destination, and that the conductor promised the same thing and if they believed that it was within the scope of the authority of these employees to bind the railroad company by an agreement or promise made by the conductor and ticket agent, that then the defendant would be liable for the conductor's failure to put the child off, is not erroneous, where the evidence sustains such facts. The fact that the conductor was without authority to make a special contract would be immaterial, where the ticket agent had such power and did make such contract. It merely imposed on the plaintiff the necessity of proving more than was needed under the law, it being sufficient to prove that the ticket agent had power to and did make such contract, and that the carrier breached its duty thereunder.
3. APPEAL AND ERROR. Carriers. Where verdict is excessive appellate court may reverse and remand or affirm on remittitur; one thousand five hundred dollars held excessive for carrying child past destination, frightening it, and causing it to contract cold.
Where, on a trial for carrying a child of tender years beyonds its destination in violation of a special contract, the verdict is grossly excessive, the court may reverse and remand the cause, or it may affirm on condition that plaintiff will enter a remittitur to a named amount, deemed sufficient by the appellate court. The evidence examined, and verdict in this case held excessive.
APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.
Action by Sidney O'Keefe against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed, with remittitur.
Judgment affirmed.
Clinton H. McKay, for appellant.
The conductor was without authority to bind defendant by his promise to put the boy off at Blaine. Railroad v. Kendrick, 40 Miss. 385; Railroad v. Statham, 42 Miss. 607; Sevier v. Railroad, 61 Miss. 8; Gage v. Railroad, 75 Miss. 17; Weightman v. Railway, 70 Miss. 563. 2. The ticket agent, likewise, was without authority to do so. Same authorities, supra. Gilkerson v. Atlantic C. L. R. Co., L. R. A. 1915-C, 664, 83 S.E. (R. S.) 592. 3. Where instructions are confusing and misleading they are ground for reversal. Malone v. Robinson, 12 So. 709. 4. Where the trial court assumes facts in his instructions which are not supported by any evidence, reversible error is committed. Davis v. Heckle, 118 Miss. 74; Railroad v. Lott, 118 Miss. 816; Telegraph Co. v. Robertson, 109 Miss. 775; Railroad v. Dyer, 102 Miss. 870. 5. Where the verdict is so excessive as to indicate passion, prejudice or unaccountable caprice on the part of the jury, a proper remittitur will be ordered. Pullman Co. v. Anderson, 119 Miss. 791.
Franklin and Easterling, for appellee.
Counsel for the appellant contend that the conductor was without authority to bind the defendant by his promise to put the boy off at Blaine, and, also, that the ticket agent likewise was without authority to do so and cites several cases.
We would like to ask, if the ticket agent cannot bind the company and the conductor cannot bind the company, then who could bind the company at all? We contend that the authorities cited by counsel do not substantiate his conclusions; but, on the contrary are directly the reverse. We especially call attention of the court to the case of Weightman v. The L. & N. O. & T. R. Co., reported in 70 Miss. 563; 35 A. S. R. 660. Judge WOODS, in distinguishing that case from the Sevier case, 61 Miss. 8, 48 Am. Rep. 74.
In the Gage case, cited by counsel, 75 Miss., page 17, 21 So. 657, after stating the facts in that case the court speaking through CALHOUN, Special Judge, says: "There was no understanding with the ticket agent that the boy should be or needed to be especially looked after by the railroad company."
We submit that the Gage case is authority for the appellee in this case and conclusive authority, for in this case, the plaintiff's attention was called to the ticket agent's notice and the ticket agent informed the plaintiff's father that the company would look after him and that it was safe for him to go in the care of the conductor, and before the plaintiff was placed upon the train, the matter was called to the attention of the conductor by the plaintiff's father, who gave the conductor plaintiff's ticket and the conductor then and there agreed that he would care for the plaintiff and put him off at his destination, which he failed and neglected to do. On the same point, we call attention of the court to the case of Wells v. Ala., G. S. R. R. Co., reported in 6 So., page 737; Illinois Central R. R. Co. v. Reid, 46 So. 146; 6 Cyc., p. 599; 5 Am. & Eng. Ency Law (2 Ed.); 2 Hutchinson on Carriers. (32 Ed.), paragraph 992.
Our own supreme court in the case of Illinois Central R. R. Co. v. Smith, 85 Miss. 335, 70 R. L. A. 642, 37 So. 643, state the general rules affecting the liability of carrier.
We further call the court's attention to the case of Croom v. Chicago, etc., Ry. Co., 38 Am. St. Rep. 557. See 4 R. C. L., paragraph 594; also see 6 Cyc. 599.
We submit that the facts of this case as conclusively proven in the court below, bring the case squarely within the rule announced by the decisions quoted above.
J. B. Guthrie, for appellee.
We shall discuss several points involved in this case in the order set out by counsel for appellant on page 13 of his brief.
1. That the conductor was without authority to bind the defendant by his promise to put the boy off at Blaine. In support of this position counsel cites certain cases from the Mississippi supreme court, and for the sake of brevity we shall not burden our brief with the same citations except to discuss the several cases cited by appellant. We desire to call special attention to the case of Gage v. Railroad Company, 75 Miss. 17, which is quoted in full by appellant and beginning on page 17 and ending on page 19. We call the court's special attention to this citation towards the end of that opinion, which statement by the court is as follows:
From the foregoing quotation from this case it will be observed that the court held that the conductor was under no obligation to bind defendant by his promise to put the boy off at Blaine unless there was a previous contract with the company. The holding of the Gage case is not that a conductor may not bind his company and was not under any duty when such promise was made by him but that such promise and duty is dependent upon the question of whether or not a previous contract had been entered into with the company for the proper care of a person traveling under disability.
We submit that no particular form of words was necessary to constitute such previous contract with the company. That any form of words which would show the disability of the party seeking transportation and any words or action on the part of the company whereby such person under disability is accepted for transportation is sufficient to constitute a contract of the character referred to in the Gage case.
Not only was the contract made before the transportation began, but it was again called to the company's notice and brought home to it when the train arrived and the father placed the boy on the train and procured the conductor's promise to put him off at Blaine.
In the case at bar there was a previous contract and, therefore, the conductor was under duty to see that the boy was put off. In the Gage case because no previous contract was shown, the court held that the company's duty ended when the station was called out, but in the case at bar, there being a previous contract the company's duty only ended when it had complied with its contract by putting the plaintiff off at his destination, and for violation of this duty a right of action accrued and the plaintiff, appellee here is entitled to recover.
The case of Croom v. Chicago, Milwaukee & St. Paul Railroad Company, 18 L. R. A. 602, decided by the Minnesota supreme...
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