Citation Numbers: 121 Va. 469
Judges: Sims
Filed Date: 9/20/1917
Status: Precedential
Modified Date: 7/23/2022
after making the foregoing statement, delivered the opinion of the court:
The assignments of error in the petition in this case raise a single question for our determination, namely':
1. Was the time limit, “Good (for) continuous passage beginning date of sale only,” printed on the face of the regular first class ticket in the instant case, valid ?
In the instant case this distinction could not have had any practical effect on the result of the case if it had been an action for breach of contract, but it has a material bearing upon and brings into view more clearly, the principle involved, as we shall presently see.
It will be noted that in the case before us the plaintiff had no actual knowledge or notice of the time limit in question until after he bought and received the ticket.' It is contended for plaintiff that his rights in the premises are contractual — fixed by the contract of carriage between carrier and passenger; and that, therefore, the time limit, although printed on the face of the ticket, could not form a part of such a contract or bind the plaintiff, unless he had actual notice of it, and acquiesced therein, at the time the contract of carriage was made.
On the other hand it is contended for the defendant that the time limit in question was not a matter of contract between the passenger and carrier, but a regulation merely of the carrier for the conduct of its business, the validity of which is to be determined upon the sole inquiry of its reasonableness as such regulation, and not upon any inquiry as to its invalidity as a contract between a passenger and carrier.
Upon these different positions the authorities are in considerable seeming, and some real, conflict.
In general, it may be said that a time limit on a railroad ‘ ticket may be, at the same time, both a contract of carriage between a passenger and carrier, and a regulation of the
Primarily, the function of a ticket is to serve as evidence, as between the conductor of the carrier’s train and the passenger, of the latter’s right to transportation. When a ticket is serving such function, the time limit contained on it (whether on its face, or back or within its folds, is immaterial) is a regulation of the carrier for the conduct of its business, the validity of which is to be determined upon the sole inquiry of its reasonableness as such regulation, and not upon any inquiry as to its validity as a contract between a passenger and carrier. Elliott on Railroads, supra,, and authorities there cited, among the latter Peabody v. Oregon, etc., Co., 21 Ore. 121, 26 Pac. 1053, 12 L. R. A. 823, and note; Frederick v. Marauette, etc., R. Co., 37 Mich. 342, 26 Am. Rep. 531; Yorton v. Milwaukee, etc., R. Co., 54 Wis. 234, 11 N. W. 482, 41 Am. Rep. 23; Bradshaw v. So. Boston R. Co., 135 Mass. 407, 46 Am. Rep. 481, and note. See also to the same effect, Va. & S. S. R. Co. v. Hill, 105 Va. 729, 54 S. E. 872, 6 L. R. A. (N. S.) 899, and authorities cited on this subject; Elmore v. Sands, 54 N. Y. 512, 13 Am. Rep. 617. When the question of the validity of a stipulation appearing on a railroad ticket with respect to the passenger’s right of transportation arises, in an action against the carrier in tort for ejection of the passenger by the conductor of the carrier, on principle, and in accordance with the great weight of authority, the ticket is regarded as serving its primary function aforesaid, and the ticket is considered as the only evidence as between the conductor and passenger of the latter’s right of transportation. Va. & S. W. R. Co. V. Hill, supra; Elliott on Railroads, sec. 1594 and authorities cited, among them the opinion of Taft, J. in
We consider the foregoing considerations upon principle, and the authorities referred to, decisive of the instant case in favor of the defendant.
It is true, as above noted, that a railroad ticket being delivered to the passenger to be used for its primary function aforesaid, and being accepted and so used by him, may also afford evidence of the contract of carriage between the passengér and carrier to the extent that such contract is expressed by the ticket, if the passenger knowingly assents to the matters so expressed. The very fact that the passenger knows the primary function aforesaid of the ticket and that he takes it to be used by him to serve such function, and so uses it, in the minds of some courts implies an assent on the part of the passenger to-the stipulations on the ticket with respect to his rights of transportation (an implied meeting of the minds of the contracting parties being held to exist in such cases), and hence the ticket is held to evidence a contract between the passenger and carrier to the extent of such stipulations. Grogan v. C. & O. Ry. Co., 39 W. Va. 415, 19 S. E. 563; Freeman v. Atchison R. Co., 71 Kan. 237, 80 Pac. 592, 6 Ann. Cas. 118; and numerous like cases. Custom and usage may also have an important bearing on whether such stipulations on a ticket may, in particular cases, constitute a contract as aforesaid, as well
The case of Wilson v. C. & O. Ry. Co., 62 Va. (21 Gratt.) 654, is cited and urged upon our attention as controlling authority over the instant case. That case, however, involved the validity of a stipulation on the ticket limiting the common law duty and liability of the carrier with respect to the baggage of the passenger. This could be done only by express contract between the passenger and carrier. It could not be done by notice or any ex parte regulation of the carrier however reasonable. Hence, the existence' of a contract was necessary in that case to sustain the validity of the stipulation on the ticket, and this court properly held that the ex parte stipulation was no evidence of a contract in the absence of all evidence of any knowledge or assent to it by the passenger, at the time the ticket was purchased. The liability of a carrier of baggage is, at common law, that of an insurer. The liability of a carrier of passengers is not that of an insurer. The same rules as to liability do not
For the foregoing reasons we find that there was error in the judgment complained of and the case must be set aside and annulled; and since it is evident that a new trial would not avail the plaintiff anything, this court will enter such judgment as the court below should have entered in favor of the defendant.
Reversed.