Kansas City, Memphis & Birmingham Railroad v. Foster , 134 Ala. 244 ( 1901 )

HARALSON, J.

The complaint contained six counts. The ones numbered two and five were withdrawn and abandoned by plaintiff, and the court instructed the jury, at the instance of defendant, that they could not find for the plaintiff under the first, fourth and sixth counts. We need not!, therefore, consider any of the rulings of the court on motions to strike certain parts of these counts, and on the demurrers interposed to them. There was left alone in the complaint, the third count, on which, after1 rulings on motions to strike certain parts thereof had been overruled and others sustained, issue was taken and the cause tried.

1. The portions of said count, which the defendant moved to strike and which were overruled Avere, (1), “And plaintiff avers, that it Avas with the greatest difficulty and after much trouble, delay, opposition, alarm and mortification to himself, that he obtained leave to pass the night at Byhalia, and he was forced and required to leave the toAvn the next morning.” (2.) “And plaintiff: a,Arers, that when he was put off, it was during the time and AAhen the yelloAV fever Avas prevailing in many •parte of the country, including that in which Byhalia is situated, and the town of Byhalia was quarantined against all other places.” (3.) “And plaintiff further avers, that by and from being Avrongfully put off of defendant’s said train, as aforesaid, he suffered great fear and uneasiness because of the supposed prevalence of yellow fever in that locality, and his exposure to it.”

The count contained the averment!, that the defendant’s agent at Waco*, Texas, sold him his ticket, and Avhen he sold it to him, said agent knew that the yellow fever Avas prevailing, and knew of the danger and inconvenience of making his way through the State of Mississippi, through which defendant’s said1 road passed; that plaintiff had not with him at that time sufficient funds with which to purchase a ticket, or pay the railroad fare from Byhalia to Birmingham, and defendant’s agent who wras in! charge of said train knew this fact, AAhen he put plaintiff off of said train.

It is sometimes difficult to determine what, in law, is and wliat is noil proximate cause of injury. In Armstrong v. Montgomery St. Ry. Co., 123 Ala. 223, the rule was stated to be, “That a person guilty of negligence, should be held - responsible for all the consequences which a prudenlt and! experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind.” — L. & N. R. R. Co. v. Quick, 125 Ala. 553; Western R. Co. v. Mutch, 97 Ala. 194. Here, the wrong committed by the agent at Waco, and the alleged damage, are known by common experience to be naturally and usually in sequence, and we aire impressed, that the court committed no error in overruling the motion to strike the parts of the complaint objected to.

2. There are a great many errors assigned,.but appellant's counsel very correctly state in brief, they each substantially raise one or the other of two propositions, that the appellant is not liable to appellee for the mistake of the St. Louis & Southwestern Railway Company's aigeulti at Waco, Texas, or, if it should be held that appellant is liable for the mistake of such agent, appellee’s recovery in this action must be limited to the cost of transportation between' Byhalia and Birmingham.

The first inquiry is, was the ticket agent at Waco, Texas, the agent of the do'rndant in selling the plaintiff his ticket from Memphis to Birmingham, as is alleged he was. It appears that the two roads, — -the one from Waco to Memphis, and the other from that poimt to Birmingham, — were connecting lines and that the plaintiff purL chasecl a coupon through ticket from Waco to Birmingham. In answer to interrogatories propounded by plaintiff to defendant, the company answered, that the conductor on defendant's road1, did receive from plaintiff on the 14th September, 1897, a ticket or coupon from Memphis to Byhalia, said ticket or coupon purporting to have been issued by the St. Louis & Southwestern Railway Company; that it was impossible for it to state •whether defendant had, prior to that time, placed on sale at Waco, tickets over its railroad from Memphis to Birmingham; 'that defendant itself, did not place such tickets on sale at Waco, and had no officer or agent at that, point; that a railroad company frequently issues and places on sale, tickets reading from points on its line to points on the lines of other roads, and often, with coupons reading over several lines of roads between initial point and destination; that defendant could not say that it knew tliaiti tickets like the one received by said conductor, were on sale at Waco; that it, however, did know, that the St. Louis & Southwestern road sometimes issued and placed on sale, tickets with coupons attached, reading to points on the line of defendant, and that that road collected the value of the entire ticket, remitting to defendant the amount due it, and such tickets had been issued and placed onl sale by said St. Louis & Southwestern Company, prior to September 14, 1897.

The. general rule prevailing in this country, as is well understood is, where there are connecting road's as here, that ini the absence of a special contract, or some relation between them, each is liable only for a loss or injury on his particular line or route. — M. & W. P. R. Co. v. Moore, 51 Ala. 394; M. & E. R. Co. v. Culver, 75 Ala. 587; Jones v. C. S. & M. R. Co., 89 Ala. 376; Ga. Pacific R. Co. v. Hughart, 90 Ala. 36.

In the Southern Express Co. v. Hess, 53 Ala. 19, it appeared that the Adams Express Company and the Southern, connected at, a point from which the one secured goods destined for points on the line of the other, and it was held, that this fact, constituted the one company thei agent of the other, a.s to such freight, and its consignor and consignee and if the company finally delivering the goods does not deliver them in the condition in Avhich they Avere received by its agent, — the company avIio issued the bill of lading, — it must account for the injury. The same rule is in reason applicable in the sale of tickets to travellers over connecting lines. Hutchinson states the rule in such cases to the same effect, that “When the passenger has received from the carrier a number of coupon tickets, one for his passage o<Arer the route of the first, and others as passports over the lines of succeeding carriers, * * * such tickets are held not to import a contract on the part of the first carrier, from whom they are received, 'to be responsible for the carriage of passengers beyond its own line. In such cases, the first carrier1 is considered rather in the light of an agent for the succeeding carriers, than as undertaking for the faithful discharge of their duty, and the coupons, as in 'the nature of separate tickets on behalf of the successive carriers, and binding upon them in the same manner as if issued by themselves.” He cites numerous authorities to. sustain the test. — Hutch, on 'Carriers, § 578.

In this case, the defendant’s own evidence1, with nothing in conflict with it, is sufficient to sustain1) the agency of the Waco ticket agent, on behalf of defendant, to sell the ticket to’ plaintiff. The fact that defendant had no general agent or office at that point, and itself, did not place tickets there for sale, is a matter of no consequence, if the other road with defendant’s approval acted in this behalf for it. It was shown, the defendant recognized anid ratified the agency in receiving the ticket from plaintiff in favor of his fare on its own line, from Memphis to Byhalia.

3. “The law, settled by the great weight of authority is, that the face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage between the passenger and! the company * * The passenger1 must submit to the inconvenience of either paying his fare or ejection, and rely upon his remedy in damages against the company for the negligent mistake of the ticket agent.” — 4 Elliott on Railroads, § 1594. The author adds: “It does not necessarily follow, however, that; the railroad company may not be liable where the passenger has, in fact, a right to his passage at the ticket rate, and he is afforded no opportunity to get a. ticket, or is misled, or given a wrong or defective ticket by the company’s agent, or the like.” Hutchinson taking the same view, holds, on the authority of cases he cites, that in the action for the recovery of damages sustained, the action] must be for1 a breach of the contract.— Hutchinson on Carriers, p. 674, § 580, n. Mr. Elliott, referring to the authorities which held that the passen-, ger’s remedy is an action for breach of the contract, — ■. Avithout denying- the right to sue in contract, — says: “It must be that soma of the cases to AAbich we have just referred are contrary to the Avedght of authority, in holding that the only remedy is an action for breach of the contract, and ini stating the measure of' damages, .but, whether the action be in contract or in tort, — for the breach of a contract or for the violation of a duty imposed by law,- — the gist of the action cannot Avell be the expulsion of the traveler where there is no unnecessary furce in accordance with the rules of the company, Avhea he has no ticket or evidence of his right to transportation valid on its face, or such as those rules reasonably require, and refuse to pay his fare. The Avrong lies back of that, and it is Avell settled, that a complaint proceeding* upon, one theory, Avill not authorize a recovery upon another and entirely’ distinct and independent theory.” Elliott on Railroads, § 1594.

Mr. Freeman in note to Commonwealth v. Power, 7 Met. 596, s. c. 41 Am. Dec. 465, 475, says: “If by mistake of one of the officers of the- company, he is not furnished with a proper ticket or check, evidencing his right to be carried to his destination, his right, nevertheless-remains, and if for want of the requisite evidence of that right, another servant of the company refuses to carry him without another payment of fare, tire contract is broken, and he has a complete right of action for all damages resulting from such breach * * * He (the traveler) should either1 pay the fare demanded or quit the train; and in either case we think he ought to- recover, as part, of his damages, reasonable compensation for the indignity put upon him, by the company through the default of its servant,” etc. — McGhee & Fink v. Reynolds, 117 Ala. 119.

4.- The count in this case is treated by defendant in the demurrer interposed, as one in. contract and not in tort. Generally, the damages to Avhich a passenger is entitled who has been injured by the negligence of the carrier, are measured by the rule of compensation; but, as Mr. Hutchinson observes, “the elements which enter into the question of compensation are so various, and in themselves, so uncertain, that it furnishes in most cases only a. rule for approximation of the actual damage, and must, after all,-he left to. the sound discretion of those whose province it is to decide the amount. Certain principles, however, have been settled as to what mav be properly included within the meaning of the terms compensation which will serve as guides in the calculation. One of these rules is that, the com-pensa.tion of the injured party will not be confined to his mere pecuniary loss, but may embrace recompense for the pain and suffering of both body and mind which have resulted from the injury.” — Western U. T. Co. v. Adair, 115 Ala. 441; L. & N. R. R. Co. v. Binion, 107 Ala. 645.

We hold,, therefore, that the measure of damages, is not limited, as contended by defendant, to- the cost, of transportation from Byhalia to Birmingham.

Tt may be- proper to add, that we have found it unnecessary to-decidle- in this case, whether the plaintiff is confined for such damages as he claims to a suit on the contract, such as is admitted this one is, and cannot, sue in tort, sinice it is nowhere disputed that an action in contract may he maintained.

The only demurrer to the third count, was that it joined with an action in tort as set up in other counts, the third being in contract. But- this objection cannot be considered, since all the other counts, in the progress of the trial, were either withdrawn by plaintiff, or the court charged there could be no recovery on them, as was stated in the first part of the opinion.

5. We have considered the only errors assigned, which have been insisted on in argument, except on the overruling of tin? motion for a new trial; and we have found nothing, which in our judgment, would justify us in Sidling- the judgment aside, on any of the grounds urged..

Affirmed.