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Contract binding on defendant.

leave Dallas before midnight. The purpose of those going on the excursion was to attend the anniversary of emancipation; and appellee, on account of the delay at Greenville, may not have witnessed the ceremonies attending the celebration, and, further, did not arrive in time to partake of a free dinner which she might have received had she arrived at the time the excursion train would have gone through, as contemplated in the agreement with Sparks. Judgment, on this state of facts, was rendered in favor of appellee for $50.

It is urged that the court below erred in holding that, under the facts, the receivers were bound, under the act of their agent, to transport appellee to Dallas, and return, for the sum paid to that agent. Weare of opinion that there was no error in this respect, and that when appellee paid to the agent of the receivers, at their office, where he, in the usual place and course of business, sold tickets, the sum which he demanded for transportation to and from Dallas, a contract binding on appellants was made, and that for their violation of it appellee had cause of action. Appellee was ignorant of the agreement between appellants and Sparks; and the fact that the ticket given to her was signed, “J. Sparks, Manager," was not sufficient to charge her with notice of it. When the agent of a railway company, or of receivers in charge of a railway, receives the money of one desiring to become a passenger from one point to another, then a contract binding on the company or receiver exists; and it may well be doubted if knowledge of appellee that Sparks had contracted for the train on that day would affect the question ; for, if his right to the train was not fixed, such agent ought not, in the usual course of business, to receive the money of one desiring to become a passenger. If Sparks had complied with his contract, its breach by appellants would have given to one who had purchased tickets for that day a cause of action; and, if appellee had known of Sparks' contract, the acts of appellants' agent would be equivalent to a declaration that he had complied with it.

It is urged that the judgment is excessive, and we are of opinion that there are no facts stated in the court's conclusions of fact sufficient to sustain the judgment.

Damages Appellee is entitled to recover the sum paid by

excessive. her at Greenville, with interest thereon, as damages; and, as the purpose of her visit to Dallas was practically defeated by the delay at Greenville, to compensation for loss of time, which may embrace the entire period from time of her leaving Sulphur Springs till her return; but this is the extent of her right, under the facts shown. Because

the judgment is excesssive, it will be reversed, and, as there is nó finding of fact on which judgment can be here ren. dered, the cause will be remanded.

Liability of Railroad Company to Passengers Traveling on Excursion Train under the Management of a Third Party.See McRae v. Wilmington & W. R. Co. (N. Car.), 18 Am. & Eng. R. Cas. 316; Howard v. Chicago, St. L. & N. O. R. Co. (Miss.), 18 Am. & Eng. R. Cas. 313.

" Round Trip Ticket”- Return Coupon-Validity in Hands of Passenger from Original Holder. After a “round trip" or "excursion" railroau utaet has been used by the holder in going one way over the route, it is good in the hands of a purchaser from the original holder, for the return trip, there being no condition in the contract to the contrary. Hoilman 7. Northern Pacific R. Co., 45 Minn. 53.

KANSAS City, MEMPHIS & BIRMINGHAM R. Co.

V.

RILEY.

(Mississippi Supreme Court, June 1, 1891.) Passengers—Return Trip Ticket-Wrong Coupon-Mistake of Conductor. -By accident and mistake, the conductor of a railroad train returned to a passenger who presented a return trip ticket, the wrong part thereof. On the return trip the passenger presented that portion of the ticket which had been so returned, but the conductor refused to accept it. The passenger had not before noticed the mistake, but then explained to the conductor how it occurred. The conductor refused to carry the passenger without the payment of fare. This was refused and the passenger was expelled at a regular station. Held, that the company was liable, since, if it had a regulation authorizing its conductors to disregard such statements by passengers, it was unreasonable.

APPEAL from Lee's Circuit Court.
Wallace Pratt, Gen. Sol., and 7. W. Buchanan, for appellant.
Blair & Stribling, for appellee.

COOPER, J.-On or about the 3d of September, 1889, the plaintiff with her husband purchased from the agent of ap

pellant at Myrtle two tickets for transportation Caso stated.

over appellant's road to Blue Springs and return; Myrtle and Blue Springs being stations on appellant's road. These tickets were handed to the conductor on the train running from Myrtle to Blue Springs, and by accident and mistake he returned to the passengers the wrong part of the tickets, giving to them that portion which called for transportation from Myrtle to Blue Springs, which he should have kept, and retaining that portion calling for passage from Blue Springs to Myrtle, which he should have returned to the

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passenger. The plaintiff went from Blue Springs to Sherman, another station on appellant's road, and on the 6th of September, being desirous of returning to Myrtle, she purchased a ticket from Sherman to Blue Springs, and for the journey from that place to Myrtle tendered that portion of the roundtrip ticket from Myrtle to Blue Springs that had been returned to her by the conductor on the 3d, but this ticket the conductor refused to accept, because it entitled the bearer to transportation from Myrtle to Blue Springs, but not from Blue Springs to Myrtle. The plaintiff had not noticed the mistake that had been made by the other conductor, tut then explained to the conductor of the train upon which she was traveling how it had occurred, and insisted upon her right to be carried on the ticket. But this he declined, and informed the plaintiff that she must either pay train fare, buy a ticket at Blue Springs when the train should reach that point, or leave the train at that point. The plaintiff and conductor testified to about the same facts as to what transpired until the train reached Blue Springs, at which point the conductor stated that plaintiff and her husband left the train upon his refusal to carry them on the tickets they then bad, while the plaintiff testified that the conductor spoke to her in an angry manner, and took her by the arm to put her off the train. At all events, the plaintif left the train at Blue Springs with her husband, and there remained until the following day, and brings this suit for damages against the appellant. The jury awarded her damages in the sum of $300, and from a judgment for that sum the defendent appeals.

The decisions are in direct and palpable conflict upon the liability of a common carrier for failure to transport a passenger under the circumstances named. In New York, Michigan, Illinois, Maryland, Ohio, Wisconsin, Connecticut, New Jersey, Massachusetts, and North Carolina, it seems to have been decided that the ticket presented by the passenger is the only evidence of his right to travel upon the train which can be recognized by the conductor; and that if, by reason of the negligence of other servants of the carrier, a wrong ticket has been given to the passenger, or the right ticket has been given to him, but erroneously taken from him, the passenger's right of action is for the wrong thus committed : and that he may not insist upon his right to travel on the wrong ticket, or without it, where it has been taken up, and recover damages for the refusal of the carrier to permit him to do so; and that the carrier may lawfully eject him from its train, using no more force than is necessary to that purpose. The authorities in support of this rule are found in the brief of counsel for appellant. On the other hand, it

Authorities reriewed.

is held in Georgia and Indiana that the passenger is entitled to travel according to his real contract with the carrier, where the mistake in giving the proper ticket, or in taking up a proper one held by the passenger, is caused by the negli gence of the servants of the carrier. In a more recent case in Michigan than those cited by appellant's counsel,-Hufford v. Grand Rapids & I. R. Co., (Mich.) 28 Am. & Eng. R. Cas. 129,--the plaintiff had applied and paid for a ticket from Manton to Traverse City. The agent gave him a ticket previously issued for a ride from Sturgis to Traverse City. There was evidence tending to show that the ticket had been canceled by conductor's marks for a ride between Sturgis and Walton, and the trial court instructed the jury that “if they believed the ticket was punched, indicating to the conductor by the punch mark that it had been used before between Grand Rapids and Walton, that would be evidence of an infirmity in the ticket, and the plaintiff would not be entitled to insist upon that ticket being received." This instruction was held to be erroneous; the court saying: “When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he had paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures, or other marks." The most remarkable thing about this decision is that it was made in the same case, upon the same facts, and between the same parties as that reported in 53 Mich. 118, in which, in an opinion delivered by Judge COOLEY, it was held that, as between the conductor and the passenger, " the ticket must be conclusive evidence of the extent of the passenger's right to travel.” There is a class of cases somewhat analogous to the present one, in which by a uniform course of decisions, so tar as we are informed, it is held that the conductor must accept the statements of the passenger. We refer to those cases in which different rates are charged for one who has procured a ticket and one who pays upon the train. It is held that as a condition precedent to the exercise of this right to charge higher train rates, and to expel one refusing to pay them, a reasonable opportunity should be given by the carrier to the passenger to procure the ticket required, and that one to whom no such opportunity has been afforded, and who for refusing to pay the higher rate is expelled from the train, may recover damages therefor. Hutch. Carr. & 571, and authorities in note 2; Forsee v. Alabama & G. S. R. Co., 63 Miss. 66.

Without determining more upon this disputed question

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than is necessary for the decision of the case before us, it is sufficient to say that where, as here, the ticket in the hands of the passenger supports and confirms the sources the truth of his statement, and no possible injury can result to the carrier by the conductor's accepting and acting thereon, he must so act, or resuse at the peril of inviting an action for damages against his principal if the statement be true. We do not decide that a person holding a ticket from Myrtle to Blue Springs has a right to ride from Blue Springs to Myrtle; but no real injury could result to the carrier in recognizing such right, for the distance is the same, and in the usual course of business as many trains pass in one direction as the other. What we do decide is that a passenger holding and attempting to use such ticket, under the circumstances disclosed in this record, and explaining to the conductor how the mistake occurred by which the ticket read in the wrong direction, makes such a reasonable and proper showing as entitles him to be dealt with as a passenger, and therefore that any regulation of the carrier authorizing the conductor of its trains to disregard such statement is unreasonable, and need not be submitted to by the passenger.

We find no error in the record for which the judgment should be reversed and it is affirmed.

Return Tickets - Detachment of Wrong Coupon by Conductor.-In a Maryland case the conductor detached and cancelled the wrong coupon of a passenger's round trip ticket. The conductor noticed his mistake, and returned such coupon to the passenger, having endorsed thereon the words "cancelled by mistake,” and told him that it would be all right and that he could ride upon it. On his return trip the passenger attempted to use this coupon, explaining to the conductor how the mistake occurred. But it was refused, and on the passenger declining to pay his fare, he was expelled from the train. The court held that he had a cause of action against the company. Philadelphia W. & B. Co. v. Rice, 64 Md. 63, 26 Am. & Eng. R. Cas. 264.

In Indiana it is held that a passenger is entitled to damages for refusing to pay fare on a train, demanded by a conductor to whom he has presented the wrong half of a round trip ticket, which had been erroneously returned to him by a brakeman who took up the tickets on his outward journey. Lake Erie & W. R. Co. v. Fix, 88 Ind. 381, 11 Am. & Eng. R.

In another case it appeared that, a passenger on a train to Mooresville from Indianapolis presented to the conductor the going instead of the returning coupon of a round trip ticket from M. to I., which he had purchased at M. three days before. The coupon was refused by the conductor who informed him that it was the wrong end. Upon the refusal of the passenger to pay his fare he was ejected from the train. The passenger in an action for damages testified that upon the conductor informing him that the coupon presented was the wrong end, and refusing to accept it, he explained that it was the first knowledge he had of the mistake, and that it was the mistake of the conductor on the trip to I., who had taken the wrong end. The defendant contended that no explanation was made.

Cas. 109.

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