Pierce v. Northern Pacific Railway Co. , 127 Or. 461 ( 1928 )

In Banc. This appeal is from a judgment for $2,500 in favor of plaintiff against defendant for damages claimed to have resulted from a failure on the part of defendant to deliver to her at Elmira, New York, Pullman accommodations from Buffalo, New York, to Stevenson, Washington.

One R.W. States, of Stevenson, Washington, applied to defendant at its office in Portland, Oregon, for transportation from Elmira and Pullman berth from Buffalo, New York, to Stevenson, Washington, for plaintiff, who is his mother. Plaintiff was at that time seventy-six years of age. Her complaint charges that defendant agreed with her son for her benefit to deliver to her at Elmira, New York, said transportation and sleeping accommodations. Said States paid to defendant $159.54 for said ticket and for berth from Buffalo to Stevenson. Plaintiff was obliged to change cars at Buffalo. The ride from Elmira to Buffalo consumes two or three hours and the sleeper ticket was to cover the Pullman fare from Buffalo to Stevenson. Defendant transmitted the money to the agent of the Delaware, Lackawanna and Western Railroad Company, whose agent delivered to plaintiff transportation from Elmira to Stevenson and $29.26 in cash with which to pay for sleeping accommodations from Buffalo. Said agent did not explain the transaction to plaintiff. A daughter accompanied plaintiff to the station at Elmira and transmitted the $29.26 delivered for sleeping accommodations to said States at Stevenson, Washington. It is very evident from this act that neither plaintiff nor her daughter understood the reason for delivering the money instead of a ticket for a Pullman. Upon receipt of the money an agent of defendant delivered to said States the following receipt:

"No. 9242. Portland, Oct. 15, '23.

"Received from R.W. States — Stevenson, Wn. One HundredTwenty-nine 28 Dollars ($129.28) for one (1) ____ Ticket and $29.26 Berth Cash, to be furnished Mrs. Mahala Pierce at ____ From Elmira, N.Y. ____ To Stevenson, Wn. ____ Via D L W-N Y C S. L-Q-NP-S P S.

"Sleeper Buffalo to Stevenson.

"It is expressly understood that in the delivering of tickets, or tickets and cash, the Northern Pacific Railway does so only as an accommodation to the depositor without compensation, and is not liable, beyond return of the amount deposited, for damage from delay or failure to deliver.

"A.D. CHARLTON, "By HGS., Ticket Agent."

It is contended on the part of defendant that it is not liable because of the provisions in the receipt. On the part of plaintiff it is contended that said receipt does not express the contract between States and defendant; that said contract was oral and that said receipt was accepted by said States as evidence of money paid to defendant, and the purpose for which it was paid. Defendant moved for nonsuit and requested certain instructions. It also took exception to an instruction given. Defendant predicates error on the court's ruling on the motion, giving said instruction and refusal to give requested instructions.

The instruction given by the court to which defendant objected is as follows:

"A receipt for money by the defendant has been offered in evidence in this case by the defendant; the defendant claiming that this receipt embodies all of the terms of the contract entered into in this matter. The plaintiff contends that this writing is merely a receipt for the money paid to the defendant by Mr. States, and that it is not the complete contract, but that the written portions of the receipt express certain portions of the contract; the remaining contract being shown by the testimony of Mr. States. Whether or not this receipt does embody all the terms of the contract is a question of fact for you to determine. If you find that the receipt does embody all the terms of the contract, then you are not to consider any of the testimony of Mr. States insofar as the testimony varies or attempts to vary the terms of the receipt. On the other hand, if you find that the written receipt referred to does not embody all of the terms of the contract entered into between the parties, then you may consider the testimony of Mr. States for the purpose of varying or adding to the terms and conditions stated in the receipt. The printed portion of the document purporting to limit the liability of the defendant would not be binding on the plaintiff unless such printed portion was known to and assented to by Mr. States."

REHEARING DENIED. There was evidence introduced tending to support the contention of plaintiff to the effect that the contract between her as made for her by her son and the defendant is not embodied in the receipt. The evidence of Mr. States to that effect is positive and is corroborated to a large degree by the letter of defendant to Mr. States, reading as follows:

"Referring to your call at this office on October 15th and arrangement made for delivery of ticket and berth to Mrs. Mahala Pierce at Elmira, New York:

"I am advised that delivery of ticket and berth has been made to Mrs. Pierce and that she left Elmira yesterday the 22nd on D.L. W. Train No. 15.

"That was as you desired and she should arrive in Stevenson on October 26th at 4:47 A.M.

"I beg to again thank you for this ticket order.

"Yours very truly, "A.D. CHARLTON, "HGS., G.P.A."

It clearly appears, we think, from this letter and the testimony that defendant undertook to deliver a Pullman ticket to plaintiff. It is admitted that this was not done. In its brief it asserts reservation for Pullman accommodations was reserved from Buffalo to Stevenson. The evidence justified the jury in finding that the agent of defendant selected to perform its undertaking with plaintiff not only neglected to provide the ticket, but neglected to explain to plaintiff that she should purchase a Pullman ticket at Buffalo, which defendant contends was her duty to do. The fact that the price of Pullman service from Buffalo to Stevenson was returned to said States by plaintiff is persuasive evidence that defendant failed to perform its duty to her.

Defendant has cited a long list of authorities to support its contention that the receipt expresses the entire contract between the parties. We do not think these authorities go to that extent. Where the receipt embodies a contract between the parties, that contract cannot be varied by oral testimony any more than any other written contract can, but an ordinary receipt not signed by both parties is not always a contract: Hirsch v.Salem Mills Co., 40 Or. 601 (67 P. 949, 68 P. 733); Rader v. McElvane, 21 Or. 56 (27 P. 97); Bouchet v. Oregon MotorCar Co., 78 Or. 230 (152 P. 888); McCargar v. Wiley,112 Or. 215, 257 (229 P. 665); Hamilton v. B. O. TransferCo., 97 Or. 620 (192 P. 1058); 22 C.J. 1135, § 1520; 9 Ency. of Ev. 477, § c.

To the same purport are the following authorities cited by appellant: 13 C.J. 305; Taylor v. Weir, 162 Fed. 585; Mears v. New York, N.H. H.R. Co., 75 Conn. 171 (52 A. 610, 96 Am. St. Rep. 192, 56 L.R.A. 884); Grace v. Adams, 100 Mass. 505, 509 (97 Am. Dec. 117, 1 Am. Rep. 131).

Defendant could lawfully contract to perform this service for plaintiff, notwithstanding it was to be performed beyond its lines and by the employee of an independent railroad company. It is for the mutual benefit of the different railroad companies as well as the public for railroad companies to exchange such accommodations and service as were undertaken by defendant in the instant case.

In the transportation of freight under a federal statute, the initial carrier of connecting lines is responsible for the delivery of freight beyond its lines. In the service undertaken to be performed by defendant for plaintiff, no discrimination was shown. It was such service as railroads generally undertake as common carriers: Atlantic Co. v. Riverside Mills,219 U.S. 186 (55 L.Ed. 167, 31 Sup. Ct. Rep. 164, 31 L.R.A. (N.S.) 7, and extensive note beginning at page 1 of 31 L.R.A).

Most of the authorities cited by defendant relate to shipments of freight where a rate is given the shipper based upon the valuation of the goods shipped. These cases are well illustrated by Wells Fargo Co. v. Nieman-Marcus Co., 227 U.S. 469 (57 L.Ed. 601, 33 Sup. Ct. Rep. 267).

The motion for nonsuit presented by defendant was based upon its contention that the receipt expressed the entire contract between the parties and under it plaintiff cannot recover. From what we have written defendant's contention is unsound. The court did not err in denying the motion for a nonsuit. We believe the court correctly expressed the law in the instruction hereinbefore set out in full and upon which defendant bases its principal error. The instruction is more favorable to defendant than to plaintiff. The ground assigned by defendant for basing error on said instruction is:

"It authorized the jury to find that the written contract was not the entire contract and authorized the jury to find against defendant if they should believe that said written contract was not the entire contract, and excepted to said instruction for telling the jury that the printed portion of said contract would not be binding on plaintiff unless known and assented to by Mr. States."

We think that this instruction follows the opinion in Hirsch v. Salem Mills Co., above, where the court used this language:

"A receipt issued by a warehouseman and accepted by the owner of the commodity stored, as expressing the terms and conditions upon which it was delivered and received, is a contract, and, like all other written contracts, cannot be contradicted or varied by parol * *; but when the receipt is silent as to the terms of the contract, it may be shown by parol (State v.Stockman, 30 Or. 36 (46 P. 851); and when its language is ambiguous and uncertain, it must, like any other contract, be interpreted in the light of the surrounding circumstances, * *." Or. L., § 717.

For the purpose of construing a contract our statute thus defines the duty of the court:

"In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all." Or. L., § 715.

Our statute also prescribes:

"When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter." Or. L., § 719.

We are further required by our statute:

"For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret." Or. L., § 717.

Another rule enacted by the legislature requires the contract when ambiguous or uncertain to be construed in favor of the party in whose favor the provision was made: Or. L., § 721. Applying these rules we must give preference to the word "berth" written over the printed word "cash." The contract was made for the benefit of plaintiff. While she did not sign the contract she is in a real sense a party thereto. She was old and inexperienced in traveling. Her son desired to have her come across the continent in comfort. Because of her lack of experience in traveling he requested the defendant to provide a berth for her on the Pullman. There was no reason at all for writing the word "berth" in the receipt unless it was the intention of the parties that a berth should be provided. If the contract could be fulfilled by delivering the cash, why insert the word "berth"? The court would exceed its authority under our statute if it ignored the word "berth" or tried to add to the contract in the receipt or take therefrom something that the parties put in there. The defendant prepared the receipt including the contract: Or. L., § 721. Defendant must have intended to procure a berth for plaintiff when it inserted the word "berth" in the contract. That is another reason for construing the contract to mean that the company undertook to furnish a berth, not simply the cash with which to purchase a berth.

The testimony is conflicting about the contract between States and defendant. States testified positively that he did not understand the receipt to constitute a contract. He did not sign it, nor was his attention directed to the printed matter in the receipt. He paid defendant the money and accepted the receipt solely as evidence of that payment. It would be giving to such a receipt, as appears in the instant case, too great importance in our judgment to hold that it expressed the entire contract between the parties in the light of the record.

The letter from defendant and quoted above is convincing evidence defendant understood it was to provide a ticket for a berth. That letter shows the sense in which defendant understood its obligation to plaintiff. Defendant undertook, according to the testimony which was believed by the jury and which we must accept as being true, to provide Pullman accommodations for plaintiff. The letter of defendant to Mr. States corroborates that testimony. It is not against law or public policy for defendant to have agreed to perform that service. It does not violate any of the regulations of interstate commerce because it does not constitute discrimination of any kind. It is a service generally and daily performed by railroad companies throughout the entire United States.

It is contended by defendant that since plaintiff did not complain but accepted such accommodations as were provided for her she is bound by her election and cannot recover: Hollen v. L. N.R. Co., 209 Ky. 287 (272 S.W. 740, 42 A.L.R. 155); 17 C.J. 926, 927, § 224.

It was the duty of defendant to extend to plaintiff proper care under the circumstances. She was an old lady within the knowledge of defendant when it undertook the service.

"The aged and crippled cannot be refused service, although to some degree special care must be taken. The right of passenger carriage is not confined to persons who are vigorous and sound, but is open to those ailing and infirm." 1 Wyman, Public Service Corp., § 635.

According to defendant's testimony and claim, it was intended that plaintiff should ride in a day coach from Elmira to Buffalo. She was not accompanied by any person and doubtless felt her inability to protect herself. In fact, the party upon whom defendant relied to perform its undertaking did not explain to her that she was to purchase a Pullman ticket at Buffalo. She had a right to believe that defendant would perform its duty which it had promised her son to do. As she herself testified she was tired and worn and did not know what to do. If she had been capable of looking after herself under the circumstances there would have been no necessity for her to have requested that service from defendant. Her son could have either transmitted the money or the ticket to her directly if the services of defendant had not been required to assist her in the estimation of her son.

Defendant complains that the verdict is so large that it is apparently the result of passion and prejudice. The testimony indicates without question that plaintiff was worn out when she arrived at Stevenson and was ill for quite a period of time. She was humiliated by passengers discovering her predicament and in their kindness assisted her by purchasing a sleeper for her the last night she was on the train. We believe the verdict to be large, but do not believe we are authorized under the provisions of our Constitution to interfere. The case was fairly presented to the jury and the jury is the sole judge of the facts: Const., Art. VII, § 3c.

We have examined the instructions requested by defendant and refused by the court. These instructions intended to shift to others the service undertaken by defendant. Defendant was not entitled to the instructions requested and refused.

The judgment is affirmed. AFFIRMED.

McBRIDE, BEAN and BROWN, JJ., concur.