Johnson v. Michigan United Railways Co.

Grant, O. J.

(after stating the facts). It was incumbent upon the plaintiff to prove that he had a valid mileage ticket, good for transportation according to its terms over the defendant’s road. The ticket on its face was not issued by the defendant or by its assignor, the Michigan Traction Company. There is no direct evidence of the legal existence of a road known as the “Jackson & Battle Creek Traction Company,” or that the defendant acquired the franchises and property of such a company. The ticket itself and its use over defendant’s road are the sole facts from which it can be inferred that such a company was once in existence. The deed from the Michigan Traction Company to defendant refers to franchises, rights, etc., purchased from its predecessors, but does not state who they were. If this were the only evidence tending to show the validity of the ticket, plaintiff would fail. His own evidence, however, is that he had traveled over the defendant’s road frequently between May 2d and October 20th, and that the validity of his ticket was never questioned. The dispute, in consequence of which plaintiff was ejected from the car, did not arise over the ticket, but solely over the number of coupons which should be detached to cover his proposed journey. Shortly after the trouble one J. M. Bramlette, evidently an officer of the company, wrote a letter to plaintiff regretting the occurrence, and asking for an interview with him. The letter had no reference to plaintiff’s contract of transportation.

The record is unnecessarily meager. We, however, may assume that in the course of its business the coupons taken up by the conductors were turned in to the office of the company, and that its collectors of fares accounted for money and tickets received. Is this evidence that the defendant had assumed the contract which the plaintiff had with the Jackson & Battle Creek Traction Company, and that it was valid? Where a conductor permits a passenger to ride upon an expired ticket, or upon tickets good only upon certain trains, common carriers are not estopped by these acts, though often repeated, to thereafter deny the passenger’s right of transportation contrary to the terms of his contract. Sherman v. Railway Co., 40 Iowa, 45; New York, etc., R. Co. v. Feely, 168 Mass. 205; 28 Am. & Eng. Enc. Law (2d Ed.), p. 197. Those and similar cases do not, however, apply to this case. It was there held that the acts of the conductor only waived the obligation of the contract as to the specific occasions. They did not change the terms of the contract or extend it. Those cases involved a violation of the plain terms of the contract. In this case the evidence tends to show an assumption of the contract made with some other company and a recognition of the liability of the defendant thereunder. We think the evidence sufficient to sustain the verdict, especially as the defendant offered no explanation of its apparent assumption of the contract and the facts were peculiarly within its knowledge. The evidence above referred to was received under the defendant’s objection and exception. It was all legitimate for the consideration of the jury in determining whether the defendant had assumed the plaintiff’s contract. They might fairly assume that the defendant would not for months carry out a contract for which it was not responsible.

We find no error in the record and the judgment is affirmed.

Blair, Montgomery, Carpenter, and McAlvay, JJ., concurred.