Central Railroad & Banking Co. v. Roberts , 91 Ga. 513 ( 1893 )

Bleckley, Chief Justice.

1. Marriage will relate the husband by affinity to the wife’s blood relations, but will not relate the husband’s brother to any of her relations. The husband of the juror’s step-daughter was not related to the juror, but only to the juror’s wife. The husband’s brother, the ■plaintiff, was further off still; he was not related even to the juror’s wife.

The groom and bride each comes within

The circle of the other’s kin;

But kin and kin are still no more

Belated than they were before.

2. The agent who sold the Sunday excursion ticket represented the company in making the sale, and the information which he gave as to whether the ticket would afford a right to return on a particular train could be relied on unless it was known to be incorrect, or unless some known rule or order of the company-made the agent incompetent to give such information or forbade the recognition of such a ticket by the conductor of the designated train, or of trains belonging to that class. The ticket being silent on its face as to trains, and one of the parts of the ticket being for a return passage, of course it would be proper for the company to authorize some one to answer questions when the ticket was sold, so that the buyer might know how to use it; and no other person would seem to be so proper for this purpose as the agent selling it.

3. If, when he bought the ticket, the passenger was not told that he could return on the fast train, and if he knew that train did not usually stop at the station, and with this knowledge bought the ticket, he certainly would have no absolute right to return on that train, provided there was some other on which he could return before his ticket expired. Although tickets sold may not expressly include or exclude any of the trains, yet if it be known to the buyer at the time of his purchase that such tickets are not recognized on a particular class of trains but only on trains of a different class, he should be understood as consenting to use his particular ticket as such' tickets were used by others and as the company expected tickets of that, class to be used. Such would be the fair meaning of the contract really made between the parties by the purchase and sale of the ticket.

4. There was no dispute that the passenger had a right both to go and return on his ticket. The whole pressure of the case was upon the question whether he had a right to return on the fast train, which did not usually stop at the station at which the ticket was sold, or whether his right was limited to return on some other train which did stop there. The ticket itself had no conditions on its face touching the matter. This being' so, it was obviously misleading or calculated to mislead j for the court to charge the jury that one who buys a return ticket has a right to return if he performs all j the conditions of the ticket, and that if the agent told the passenger that he could go and return on his ticket the passenger had a right to presume that he could do so, and if, in his effort to do so, he was put off’ at any other station, he would be entitled to damages. It is to be observed that this charge says in general terms that if the agent told the passenger that he could go and return on his ticket the passenger had a right to presume that he could do so. This is certainly true, and what immediately follows, that is, if in his effort to do so he was put off at any other station he would be entitled to damages, would also be true if the agent had told him not merely that he could return on his ticket but that he could return on it upon the fast train. The court did not make this a condition of his right to recover, but left it out entirely. As abstract law the charge was correct, but it was not applicable to the only real question in the case about which the parties disputed. There was a conflict of evidence as to whether the agent told the passenger he could return on the fast train. The charge as given would authorize the jury to find against the company without settling that conflict. This error vitiated the whole trial.

5. ' The contention that in order for the passenger to .recover for wrongful expulsion it was necessary that the conductor Sioidd have put his hands on him, is manifeetly unsound. A conductor may expel a passenger as effectually by ordering him off' as by pushing him off. He is a man in authority and may exert that authority by words as well as by using physical force.

6. In such an action as the present, where it is well founded, a recovery may be had for the injury as a tort, -as a breach of a public duty by a common carrier — a ••duty imposed by law, though involving in this breach a breach of contract also. The passenger could elect to isue only for the breach of contract, and, did he so elect, his recovery would be limited to nominal damages if he failed to prove any special damage. But this action being for a tort and no special damage being proved, proof of the tort and the circumstances attending it would entitle the plaintiff' to recover such amount as the enlightened conscience of an impartial jury would .sanction as fit for the plaintiff to have and the defend.ant to pay. There is no other measure of damages for .such a case. Judgment reversed.