Illinois Central Railroad v. Reid , 93 Miss. 458 ( 1908 )

Whitfield, C. J.,

delivered the opinion of tbe court.

Tbe only question in tbis case is as to the right of tbe appellee to recover punitive damages. . Tbe judgment in tbe court below was for $438.91, manifestly a judgment for punitive damages. Tbe case.in brief is tbis: E. W. Reid, desiring to go with bis wife and children from Magnolia, Miss., to tbe World’s Eair at St. Louis, Mo., in September, 1904, went to tbe ticket agent at Magnolia to purchase a ticket to St. Louis and return — a special excursion ticket calling for continuous passage. Tbe return portion of tbis ticket was to be signed by him before tbe agent of tbe railroad company in St. Louis, according to tbe custom in such cases. When be purchased the ticket from Groce, tbe ticket agent of tbe appellant at Magnolia, Groce asked him whether be wanted No 2 — that is tbe fast train going north — • to stop for him, and Reid told him be did, and Reid asked tbe ticket agent while purchasing the ticket, whether No. 3 would stop for him on bis return trip, and tbe agent said in substance that it would. Reid’s testimony, to be exact,' is as follows: “When I bought tbe ticket, be \i. e. Groce] asked me if I wanted No. 2 to stop, and I told him that I did; and after I signed the' ticket I said: ‘No. 3 will stop for me coming back will it?’ And be said, ‘Yes.’” Reid further testifies that- be always understood that No. 2, when going north, stopped for any passenger north of Grenada, Miss. Acting on tbe faith of tbis contract made with tbis ticket agent, Reid purchased a special excursion ticket and went with bis family to St. Louis. When be got ready to come back, be says that- be went to tbe ticket office at St. Louis, and signed bis ticket in the presence of the agent, and bought bis Pullman berths to Magnolia. He states that tbe ticket agent of tbe appellant company at this uptown office asked him for his railroad ticket when be bought his berths, and directed him to sign the return portion of the tickfet, which he did in the agent’s presence, and the agent witnessed it and stamped it — all as customary in such cases. He further says that he told this ticket agent of the train he wished to use this ticket' on, in order to get berths in the Pullman car on that train, he wished to use his ticket on No. 3, the fast train going south by Magnolia on the Illinois Central Railroad. He further testifies that in St. Louis he presented his tickets, railroad and Pullman, at the gate of the Union Depot, and the employee whose business it was to attend to that matter asked where the tickets took him to, and he told him Magnolia, Miss., and the employee opened the gate and he walked in, having shown the tickets to this gateman, and that this gateman let him enter and board No. 3. He further testifies that af.er he boarded the train the conductor took up' his railroad tickets and his ■sleeping car tickets, as is usually done in such cases, and that he then, with his family, continued without interruption on his journey until ho got near to McComb City, about seven miles north of Magnolia, his destination. •¡ • - ■ - ■ ■ ''

Up to this point it will be seen that every official of the ap-: pell ant charged with the duty of selling the ticket in the first place, and of accepting and stamping and witnessing the re-"tum portion of the ticket in the second place, and the gateman <on guard at the Union Depot in the third iilace, and ¿he conductor on train No. 3 in the fourth place, each and all acted in strict conformity with the special contract made between the appellee and the ticket agent who sold him the excursion ticket at Magnolia. The appellee acted manifestly on the faith of this -contract, and expected to be put off in accordance with it on liis return. He then proceeds to say that when he got near to McComb City on his return the conductor came through the car •and handed him something, and that he asked the conductor what it was, and the conductor said it was his ticket. He then says: “I asked him what I wanted with it, and he said, ‘You have got to get off at MeComb City.’ I told him I didn’t think I did; that my ticket read to Magnolia. He said, ‘I have heard that before,’ and pitched the ticket in my lap- and went on.” He further states that the manner of the conductor was exceedingly discourteous; that he tried to tell him four or five times, and that the conductor refused absolutely and peremptorily to hear any explanation whatever; and that all this was witnessed hy many other passengers. Further than this, it appears that 'Galvani, the trainmaster, was aboard the car, and Reid testified positively that he went to Galvani and appealed to him to get the train stopped, having been introduced to him by Thad Lampton; that he explained the facts and circumstances fully to Galvani, and told him that his ticket said take him to Magnolia, one continuous passage. He states that Galvani said that he (Galvina)' did not have any authority in that line, and that he then asked him as a favor to him and to the ladies that were with him to have the train stopped at Magnolia and let them off, and that Galvani said that he' did not have any authority in that line, and added, “anyway I [Galvani] would be afraid to do it on account of the trouble you are having down there.” This trouble, it very clearly appears, grew out of an -effort on the part of the citizens of Magnolia, prominent among whom were the Lamptons, to force the through trains to stop at Magnolia. Galvani positively denies that Reid was introduced to him, or that’ any such conversation occurred. Manifestly the jury believed Reid. Reid further testifies that about this time, in the summer of 1904, Davis went to St. Louis and came back on this No-. 3, and that Butler did the same thing and that Middleton did the same thing, and that No. 3 stopped for all these gentlemen. On cross-examination Reid was pressed -to say whether the conductor did not tell- him that he could not stop the train unless he got an order from a higher official to stop, to which he answered: “No sir; he didn’t say that. I don’t know that he got an order or that he had to get ;an order.”

Dr. Felder testifies that on his return from the World’s Fair in 1904, on this same No. 3, it stopped for him to get off at-’Magnolia, and that this same trainmaster, Galvani, stopped it;, himself giving the order to the conductor. On cross-examination it was attempted to show by this witness that the reason that Galvain stopped the train was that Felder’s wife was suffering with a sick headache on that occasion, but Felder says this-was not true, and that no such representation was made to Galvani. Galvani contradicts all this, too; but the jury accepted the statement of Felder. O. E. Davis testifies that on his return from the World’s Fair in 1904, on the same kind of excursion ticket, the plaintiff had its train No. 3 stop for him at Magnolia. On cross-examination he says that the conductor did this on account of old acquaintanceship with the wife of the witness Davis, without any order of any kind. W. -T. Butler testifies that on his return from the World’s Fair in St. Louis in 1904, on exactly the same kind of excursion ticket the plaintiff had, this identical train No. 3 stopped for him at Magnolia, and that it was stopped without any request or order of any kind — ■ stopped upon his simply telling the conductor that he wanted to get off at Magnolia. J. I. Middleton testifies thht he returned from the World’s-Fair in the fall of 1904, and that the train was stopped for him to get off at Magnolia — this same No. 3— and that this was done twice in the fall of 1904. Willie Morse testifies that in the month of July, 1904, he got on this same train in St. Louis, (No. 3) ; and, when asked on cross-examination whether he did not know that this train No. 3 never stopped at Magnolia except on special orders, said that he did not know about that — that he knew it stopped sometimes. West-Elliott testifies, also, that he bought a ticket from New Orleans to Iiot Springs at Magnolia, and went to the World’s Fair in ■1904, and that he came back on this same No. 3, and it stopped for him to get off at Magnolia, and that this was done on orders from a local attorney from Magnolia.

In addition to all this testimony, absolutely overwhelming, on the proposition that this special train, No. 3, did stop at Magnolia, on various occasions in that identical year and summer, and let passengers from the World’s Fair, and other passengers, get off at Magnolia without any special order-, and abundantly-showing that Galvani had himself ordered this train stopped, in other cases than emergency cases, without any special order except his own order, the plaintiff introduced rale No. 403, of the appellant company, which is as follows: “Train Masters. 403. They will direct the movement of trains, make requisitions for coaches and regulate the runs of the crews.” This rule manifestly, authorized the train master to stop the train at Magnolia ; there being nothing in the record to show to -the contrary. The testimony of Galvani is in flat conflict with the testimony of other witnesses in the case with respect to what he did on various occasions, and with regard to his power to order the train stopped at Magnolia. The jury were eertainly warranted if they saw proper, in accepting the testimony of the other witnesses.

W. B. Groce, the ticket agent, and a witness for the defendant, testifies that Beid asked him if No. 3 would stop for him on his return, and that he told Beid that he did not suppose that he (Beid) would experience any trouble in getting it to stop; that it had stopped for other people on similar occasions. This is the positive testimony of the l-ailroad ticket agent himself. Surely the jury were warranted in believing that this special contract was made, and that Beid boarded the train on the faith of this contract and this representation made by the ticket agent. Further than this Groce says, in answer to a question as to what he meant by other persons getting off on similar occasions', that he meant that the train generally stopped to let off Chicago and St. Louis passengers; that he did not know how often they had done this; that sometimes it would be once or twice a week; and this, too, was the positive testimony of a witness introduced by the railroad company, and that witness the ticket agent himself. IIow it is possible for the railroad company to contend, in the face of this testimony of its own ticket agent, that this special contract was not made, and that Reid did not board this train on the faith of this representation and special contract, it is certainly difficult to understand. Galvani in his testimony actually testifies that he did not remember anything about Reid’s-being introduced to him by Thad Lampton at all, nor about Reid’s having any conversation whatever with him in respect to stopping train No. 3. Thad Lampton, in rebuttal, testified that he not only introduced Reid to Galvani on this train, but that he explained to Galvani that he (Reid) was _ associated with them (the Lamptons) and had charge of their business in Magnolia, and that Ed. Harlan, an engineer of the railroad, living at McComb City, was with them when this occurred. Iiarlan was not introduced by the railroad company to contradict Lampton......

This is the case made by the testimony, except that there is a good deal of testimony, the object of which was to show that there was trouble and bad feeling between the Lámptons and the appellant company in respect to stopping this through train at Magnolia; that there had been litigation about this, and a contest before the state railroad commission, etc. We say nothing as to all this. It seems to us to be utterly immaterial, in any view, for the proper decision of this cause. The question here is, not-what state of feeling might exist between the Lamptons and the railroad company, but whether, in this particular case, the conduct of the conductor of this appellant company in this case, as made by ail the testimony which we have hereinbefore set out, was wilful and wanton. It must be too clear for any further comment that the jury were abundantly warranted in believing that the special contract was made between Groce and Reid; that the ticket agent did agree with Reid that No. 3 should stop for him on his return; that Reid acted on the faith of this special contract and the faith of this representation of this duly constituted ticket agent; and that every official of this appellant company connected with his transportation, whether in Magnolia or in St. Louis, one and all, conformed to this contract thus made until the conductor came along at MeOornb City. Now the precise point, therefore, on which the defendant must stand, if it can stand at all, is that this conductor, Grant Lord,, was not guilty of wilful or wanton conduct in the expulsion of the appellee and his wife and children from this train; and the basis of all this reasoning is precisely the reasoning that has boon three,times discarded and repudiated by this court, to-wit, that the conductor is not bound to listen to any explanation, and that he must go by the face of the ticket which is shown him, and that he is not required to listen to any statement setting forth special arrangements or special representations made by the duly authorized ticket agent at the time of the making of the special contract; and this is said to be because the conductor is bound by a rule of the company to act in this way, and to be governed, exclusively, by the face of a mere ticket, which may or may not be the wdiole contract.

We thought we had disposed of this With sufficient clearness and sufficient emphasis in Railroad Co. v. Harper, 83 Miss. 560, 35 South. 764. At page 570 of 83 Miss., page 767 of 35 South., we said: “It is idle to argue that the conductor, flatly refusing to listen to a perfectly reasonable explanation made by the woman, and putting her off, under the circumstances detailed in the evidence, at night, was not guilty of such intentional and oppressive wrong done as to warrant the imposition of punitive damages. It may as well be understood, once for all, that this court proposes to stand by the doctrine announced in the Drummond and Riley cases as the just and true doctrine.” We quoted in that case from the opinion of Mr. Justice Lamar in New York, etc., R. Co. v. Winters Administrator, 143 U. S., at page 69 etseq., 12 Sup. Ct. at page 359, 36 L. Ed. 71, the following passage, which we again repeat, in the earnest hope that we may not be called upon to state it a third time: “The grounds upon which it is insisted that the evidence referred to was inadmissible are that the ticket itself, and the rules and regulations of the road with respect to stop-over checks, constitute the contract between the passenger and the road, and the only evidence of such contract, and that no representations made by a ticket seller could be received to vary or change the terms of such contract. This contention cannot be sustained, and is opposed to the authorities upon the subject. While it .may be admitted, as a general rule, that the contract between the passenger and the railroad company is made up of the ticket which he purchases, and the rules and regulations of the road, yet it does not follow that parol evidence of what was said between the passenger and the ticket agent from whom he purchased his ticket, at the time of such purchase, is inadmissible, as going to make up the contract of carriage, and forming a part of it. In the first place, passengers on railroad trains are not presumed to know the rules and regulations which are made for the guidance of conductors and other employees of railroad companies as to the internal affairs of the pompany, nor are they required to know them. Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 631, 31 N. W. 544, 8 Am. St. Rep. 859. In this case there is no evidence, as already stated, that notice or knowledge of the existence of the rules of the defendant company, or what they were, with respect to stop-over privileges, was brought home to the plaintiff at the time he purchased his ticket, or at any time thereafter. There was nothing on the face of the ticket to show that a stop-over check was required of the passenger as a condition precedent to his resuming his journey from Olean to Salamanca after stopping off at the former place. It is shown by the evidence that Olean was a station at which stop-over privileges were allowed. Ilnder such circumstances, it was entirely proper for the passengers to make inquiries of the ticket agent, and to rely upon what the latter told him with respect to his stopping over at Olean. Hufford v. Grand Rapids & I. R. Co., supra; Palmer v. Charlotte, C. & A. R. Co., 3 S. C. 580, 16 Am. Rep. 750; Burnham v. Grand Trunk R. Co., 63 Me. 299, 18 Am. Rep. 220; Murdock v. Bosdon & A. R. Co., 137 Mass. 293, 50 Am. Rep. 307; Arnold v. Pennsylvania R. Co., 115 Pa. 136, 8 Atl. 213, 2 Am. St. Rep. 542.”

We expressly held, in the Harper case that, if the company had any such rule, as here contended for, that the conductor must be governed by the face of the mere ticket alone, which may be but a part of the contract, then such regulation, not known to the passenger, is unreasonable and void, and we reiteróte again that declaration. What was the doctrine of the Riley case, 68 Miss. 765, 9 South. 443, 13 L. R. A. 38, 24 Am. St. Rep. 309, and the Drummond case, 73 Miss. 819, 20 South. 7, just referred to? This, as set forth at page 770 of 68 Miss., page 444 of 9 South. (13 L. R. A. 38, 24 Am. St. Rep. 309): “The decisions are in direct and palpable conflict upon the liability of a common carrier for failure to transport a passenger under the circumstances named. In New York, Michigan, Illinois, Maryland, Ohio, Wisconsin, Connecticut, New Jersey, Massachusetts, and North Carolina it seems to have been decided that the ticket presented by the passenger is the only evidence of his right to travel upon the train which can be recognized by the conductor, and that if, by reason of the negligence of other servants of the carrier, a wrong ticket has been given to the passenger, or the right ticket has been given to him, but erroneously taken from him, the passenger’s right of action is for the wrong thus committed, and that he may not insist upon his right to travel on the wrong ticket or without it, when it has been taken up, and recover damages for the refusal of the carrier to permit him to do so, and that the carrier may lawfully eject him from its train, using no more force than is necessary for that purpose. On the other hand, it is held in Georgia and Indiana that the passenger is entitled to travel according to his real contract with the carrier, where the mistake in giving the proper ticket or in taking up a proper one held by the passenger is caused by the negligence of the servants of the carrier. Railroad Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464.” The court proceeded through Justice Cooper to comment and call attention to the fact that Michigan had practically overruled its former cases, and held with Georgia and Indiana, as shown by the case of Hufford v. Railroad Co., 64 Mich. 634, 31 N. W. 544, 8 Am. St. Rep. 859, in which case an instruction, was held to be erroneous which told the jury that if a ticket had been punched, indicating to the conductor by the punch mark that it had been used before, that would be evidence of infirmity in the ticket, and the plaintiff could not insist upon the ticket’s-being received. The Michigan supreme court said that instruction was erroneous, observing that: “When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he had paid to .the agent, who gave him the ticket, he presented and told him it was good, it was the dut} of the-conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in-words, figures, or other marks.” The court then referred to Hutchinson on Carriers, § 511, and the authorities cited in note 2, and in concluding the court said: “Where, as here, the ticket in the hands of the 'passenger supports and confirms the truth of his statement, and no possible injury can result to the-carrier by the conductor’s accepting and acting thereon, lie-must so act, or refuse, at the peril of inviting an action for damages against his principal if the statement be true. A passenger, holding and attempting to use such ticket under the circumstances disclosed in this record, and explaining to the conductor how the mistake occurred by which the ticket read in the-wrong direction, makes such a reasonable and probable showing as entitles him to be dealt with as a passenger, and therefore-any regulation of the carrier authorizing the conductor of its-trains to disregard such statement is unreasonable, and need not be submitted to by the passenger.” Note specially this last clause. In short, the Riley case aligned this court, practically, with the Indiana and Georgia courts.

The only cases relied on by the learned counsel for the appellant are Railroad Co. v. Moore, 79 Miss. 766, 31 South. 436; and Vicksburg R., etc., Co. v. Marlelt, 78 Miss. 872, 29 South. 62. A close examination of these cases will show that they have no sort of application to the case in hand. In the Marletl case it appears from the opinion that no explanation was made or offered to be made to Conductor Dyer, who put Marlett off, of the fact that the previous conductor had failed to punch the ticket as the rulo required. In the Moore case the ticket had expired, as shown on its face, and in addition to this the ticket was unstamped. In other words, all the circumstances tended to contradict the proffered explanation of Moore as to how the-mistake was made by the ticket agent at Oxford. In other words, the circumstances, instead of supporting the explanation, contradicted the explanation. That was the turning point of that case, and that fact was fully appreciated by the eminent counsel for the appellant in that case, who say in their brief, at page 770 of 79 Miss., page 436 of 31 South., as follows: “In the case at har there is not one circumstance which tends in any way to corroborate the statement of the plaintiff. In fact, everything contradicted his statement. The ticket on its face had expired, and in addition to that it was unstamped — nothing to show that it came from the railroad office in a lawful way, or when. There was no exhibition of a cheek, as in the Holmes case, 75 Miss. 371, 23 South. 187, and no exhibition of the stamp coupons, as in the Riley case.” Obviously, neither of these cases sheds any light on the point involved in this case. As stated at the outset, this case is controlled perfectly by the Harper case, the Riley case, and the Drummond case. In the Drummond case, 73 Miss. 818, 819, 20 South, 7, it is expressly stated by the court that “appellee- made no explanation to the conductor of the circumstances connected with the purchase of the ticket or of the manner in which he received from the ticket, agent the ticket he had not applied for. He only says he protested against his being required to occupy a seat in the second-class coach.” In other words, the Drummond case, in this respect, is exactly like the Ma/rlett case. But the court further held in the Drummond case, at page 819 of 73 Miss., page 7 of 20 South., that the passenger’s ticket is not, in all cases, conclusive evidence of his contract with the carrier, yet that it is sufficient evidence to justify a conductor in acting upon it, as showing the actual contract, in the absence of any reasonable ■statements made to him by the passenger that through fraud, mistake, or inadvertence it (the ticket) does not show the real •contract. In other words, the court held, squarely and properly, that it is always competent to show, by reasonable explanations made to the conductor, that the ticket, through fraud, mistake, or inadvertence, does not set out the real contract.

We think the jury were well warranted in believing from the testimony in this case that Galvani had full power to stop this train without any higher authority, both from the testimony of the witnesses and from the rule No. 103; that this conductor should have listened to the explanation offered to be made by Reid, and having'heard it, should have stopped the train for the appellee according to the special contract. Instead of doing this, he pitches the ticket back in the lap' of the appellee, tells him, “I have heard that before,” the insultingly sinister implication involved in which is too obvious for comment, and wilfully and wantonly and peremptorily refused to hear any explanation whatever. This is the wilfulness, this is the wantonness — the refusal to hear any explanation whatever — which authorized the court to give the instruction regarding punitive damages.

We think the action of the court below was entirely correct in giving the instruction, and the judgment is affirmed.