Bussey v. Railway , 75 S.C. 116 ( 1906 )

September 6, 1906. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through intentional wrong on the part of the defendant. The allegations of the complaint material to the questions involved, are substantially as follows:

"(1) That on the 12th of June, 1905, the plaintiff applied to defendant's agent at Fountain Inn, S.C. for transportation to Louisville, Ky., and return, paid the agent the fare demanded for the ticket, and the agent delivered to her a round trip ticket for one first class passage and return, from Fountain Inn to Louisville, Ky., via Spartanburg, S.C.

"(2) That on the said day, plaintiff boarded one of defendant's trains, and was carried to Louisville; after arriving there, she applied to Jas. Richardson, special agent of the defendant, as directed by it, for an extension of her ticket, until the 10th of July, 1905, which request was granted.

"(3) That she complied with all the requirements and conditions of the defendant, with reference to said transportation, and the defendant unlawfully, carelessly, recklessly, wilfully and wantonly failed and refused to furnish to her transportation to Fountain Inn from Louisville, and on the 10th of July, 1905, she was ejected from the train upon which she was traveling, and which was a train on the same road over which she traveled in going to Louisville, which ejection was due to the unlawful, wilful, wanton and reckless conduct of the defendant.

"(4) That plaintiff was ejected at Danville, Ky.: she was an utter stranger in the town, did not have but two dollars on her person, nor was there any one to whom she could appeal for relief; in her humiliated and deplorable condition, she telephoned to a relative at a distance, who advanced money enough to pay her hotel bill, and to buy another ticket home, where she arrived on the 13th of July, 1905."

The defendant denied the material allegations of the complaint, and alleged:

"That the contract between plaintiff and defendant was, that the defendant, in selling said reduced rate return ticket, for passage over other lines than its own, acted only as agent, and is not responsible beyond its own line, said ticket having the following conditions attached to the same, which was duly accepted and agreed to by the plaintiff herein, to wit: `10. Responsibility. In selling this reduced rate ticket for passage over other lines, and in checking baggage on it, this company acts only as agent, and is not responsible beyond its own line.' That Danville, Ky., is not upon the line of road belonging to this defendant, nor operated by it."

The jury rendered a verdict in favor of the plaintiff for $2,500, and the defendant appealed upon exceptions, which will be set out in the report of the case. Before proceeding to consider the exceptions, it will be necessary to determine what issues are raised by the pleadings.

The complaint alleges that the plaintiff applied to the defendant's agent for transportation to Louisville, Ky, and return, and paid to the agent the fare demanded for said ticket. The third paragraph of the complaint not only alleges that the defendant wilfully and recklessly failed and refused to furnish transportation, and that the plaintiff was ejected from the train, but also that said ejection was due to the unlawful, wilful, wanton and reckless conduct of the defendant. Unless the last mentioned words refer to conduct other than failure to transport, then they are without force and effect, as that allegation had already been made. Pleadings under the Code are to be liberally construed, with a view to substantial justice between the parties, and, if possible, effect should be given to all the language of the complaint, instead of a party only. We are constrained, therefore, to rule that the word "conduct" did not have reference solely to the failure to furnish transportation.

The complaint makes no reference whatever to the fact that the defendant was only acting as agent, in selling the ticket over connecting lines; but the defendant relies upon this fact in its answer. The plaintiff had the right to offer testimony for the purpose of showing that the ticket was vitally defective over connecting lines, as this fact would render ineffectual the defense set up in answer. It was only incumbent upon the plaintiff, in the first instance, to introduce testimony tending to sustain the allegations of the complaint, in order to make out a primafacie case.

Before proceeding to consider the specific assignments of error, we deem it advisable to state our construction of the contract. The ticket was composed of two parts, which, evidently, were not intended to be attached together for general use, as they contained inconsistent provisions. The heading or red part of the ticket states the following conditions: "Good subject to conditions printed below for one first class passage to Louisville, Ky., and return, via route designated in coupons attached." "This ticket if presented by any other than the person named hereon, shall be forfeited, and any agent or conductor of any line over which it reads, shall have the right to take up and cancel the entire ticket." "The holder of this ticket agrees, that the liability of the lines, over which this ticket reads, shall be," c. "This ticket is subject to the rules and regulations of each line, over which it reads." "No agent nor employee of any line has power to alter, modify or waive any of the conditions named in this contract." "In selling this reduced rate ticket for passage over other lines, and in checking baggage on it, this company acts only as agent, and is not responsible beyond its own line." (All the italics ours.)

The only coupons attached are in the blue part of the ticket and are as follows:

"Charleston and Western Carolina Ry." "Round trip party ticket — Going coupon." "Good for 1st class passage 1 persons as punched in margin of return coupon, from Fountain Inn, S.C. to Louisville, Ky., via Spartanburg."

The return coupon is similar, except the starting point and destination are reversed.

The worls via route designated in coupons attached clearly show that the heading or red part of the ticket was intended to be attached to the coupons, designating the route over the connecting lines, and that the ticket was defective in form. (E.N. Aiken, traveling passenger agent of the Q. C. Road, a witness for the defendant, testified that it is universal rule to exchange coupon tickets with any road, that is financially sound; and that the plaintiff was ejected because her ticket was irregular.)

The other words italicized also show that coupons designating the route over connecting lines were contemplated so as to make the ticket complete.

The words, "no agent nor employee of any line has power to alter, modify, or waive any of the conditions named in this contract," are important, as they manifest an intention on the part of the defendant to reserve the right to designate the route over the connecting lines, in the ticket itself, and to prevent a connecting line from recognizing the ticket unless it was mentioned in a coupon attached, and then setting up the claim that the ticket was sold over its line, and that the defendant acted as its agent in such sale. A conductor, therefore, on a connecting line, did not have the right to interpolate into the ticket provisions that would make it apply to his line, and he was not bound to receive it in its vitally defective form. The words, "in selling this reduced rate ticket for passage over other lines, this company acts only as agent, and is not responsible beyond its own line," must be construed in connection with the other provisions of the ticket, when it will be seen that "other lines" mean other lines mentioned in coupons attached. When the defendant sold the ticket, there was an implied agreement that it had made arrangements with connecting lines to accept the ticket in the form in which it was sold. In other words, it warranted the ticket to be good in form, for one first class passage from Fountain Inn to Louisville, Ky., and return, not only over its own but connecting lines.

The appellant's attorneys seem to recognize this principle, for in their argument they say: "She might have complained, if, on the going trip, she had been unable to ascertain the route she was to take, and no one of the defendant's connections had been willing to recognize her ticket, as a legal contract on its behalf."

They, however, contend that there was no failure in this respect; that as her ticket was recognized from Fountain Inn to Louisville, there was no ground for such complaint; and that the Q. C. Road, having once recognized her ticket, it was legally bound to recognize it on her return trip. This view cannot be sustained, for the reason that the failure of one conductor to discharge his duty to eject a person attempting to ride upon a fatally defective ticket, would not bind the company, to the extent of preventing another of its conductors on a different train and at another time, from refusing to recognize the said ticket.

We now proceed to consider the exceptions in their regular order. First exception. All the particulars in which error is assigned, except the eighth, must be overruled, for the reason, either that the grounds of objection to the introduction of the testimony were not specified, or testimony to the same effect was afterwards introduced without objection, or the testimony was irrelevant.

The introduction of irrelevant testimony must be left, in large measure, to the discretion of the presiding Judge, and his rulings are not appealable, unless there was an abuse of discretion, which does not appear in this case. The eighth specification of error mentioned in said exception cannot be sustained, because the witness afterwards answered the question in the affirmative.

Second exception. The very irregular form of the ticket, especially under the circumstances of this case, and the conduct of the validating agent, after being notified that the plaintiff had been warned that her ticket was defective, tended to show recklessness and a disregard of the plaintiff's rights.

Third exception. This exception has been disposed of by what has been already said.

Fourth exception. The question presented by this exception has been disposed of.

Fifth exception. The language of the presiding Judge, mentioned in this exception, forms only a part of his charge on the subject, and was explained and qualified by the words immediately following said language, in which he referred to the 10th clause of the ticket set out in the answer. But without the qualification, the charge was in conformity with our construction of the contract.

Sixth exception. While this charge was erroneous, it was not prejudicial, under our construction of the contract.

Seventh exception. This exception is disposed of by what was said in determining what issues were raised by the pleadings. Eighth exception. This exception seems to have been abandoned, as it is not discussed by the appellant's attorneys in their argument. It forms only part of the sentence, which is as follows: "Wantonness is a conscious failure to observe due care, a conscious invasion of the rights of another, an intentional doing of an unlawful act, knowing such act to have been unlawful." It is not necessary to cite authorities to show that the exception, even if it has not been abandoned, cannot be sustained.

Ninth, tenth, eleventh and twelfth exceptions. These exceptions must be overruled for the reason that we have already shown there was testimony tending to prove recklessness, which is the equivalent of wilfulness or intentional wrong. Pickett v. Ry., 69 S.C. 445,48 S.E., 466.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.