
    Illinois Central Railroad Company v. Winifred G. Harper.
    1. Railroads. Two routes. Passengers. Wrongful ejection. Evidence. Directions of ticliet agent. Assurances of 'preceding conductor. Explanation of passenger. Buies of company. Exemplary damages.
    
    If a railroad, company, baying two routes between tbe point where it receives a passenger and tbe place of ber destination, sells ber a ticket without designation thereon of tbe route upon which it is good:
    
      (а) It will be bound by tbe direction of its ticket agent to the purchaser as to tbe proper train for ber to take, and liable to tbe passenger for an ejection from such train after she has begun ber journey; and
    (б) Tbe direction of tbe ticket agent and tbe statements of a preceding conductor of tbe company, over whose run tbe passenger bad been carried before ber ejection, to tbe effect that she was on tbe right train, are competent evidence for tbe passenger; and
    (c) If tbe succeeding conductor, after bearing tbe statements of a woman passenger, detailing tbe directions she bad received from tbe ticket agent and the declarations of tbe preceding conductor, refuse to honor ber ticket and put ber off, unattended in the night time, although be acted politely in so doing, it will be a willful wrong and subject bis company to exemplary damages; and
    
      (d) A passenger is not bound by a rule of tbe company, of which she did not have knowledge, requiring passengers to travel by the more direct route.
    2. Same. Passenger in wrong car. Duty of conductor.
    
    Where a woman passenger, by the direction of the ticket agent, took the wrong car of a train, the conductor is not, upon correcting the mistake, under a duty to escort her to the right car, the train being vestibuled and she not so ill as to require assistance.
    3. Same. Pleadings. Counts in declaration.
    
    A judgment for exemplary damages in an action of tort, dearly based upon a count of plaintiff’s declaration which is insufficient to support any judgment will be reversed, although the declaration contains another count upon which, had it demanded such damages, the court would have maintained a larger verdict and judgment than the one rendered.
    From tbe circuit court of, second district, Talobusba county.
    HoN. Samuel 0. Coos, Judge.
    Mrs. Harper, appellee, was plaintiff, and tbe railroad company, appellant, in the court below. From a judgment in plaintiff’s favor, defendant appealed to tbe supreme court. Tbe opinion states tbe facts.
    
      Mayes & Longsircet and J. M. Dichinson, for appellant.
    Tbe evidence disclosed that the railroad company bad a rule and regulation that-passengers for local stations between Fulton and Grenada should go by the direct and shorter route.
    The question is a novel one, but we invite attention of tbe court to the following authorities which support the reasonableness of the regulation of the company:
    “It is a reasonable regulation for a railroad company operating a direct and a circuitous route between two points to require through passengers to go by the more direct route.” Church. r. Chicago, M. & 8. P. B. B. Co., 6 S. Dak, 235, 60 N. W., 854, 26 L. R. A., 616.
    “Where a carrier operates a direct and a circuitous route between two points, the failure of the carrier to notify a through passenger that he must go by the more direct route does not entitle the passenger to ride on the circuitous route.” Ibid.
    
    “The right of the company to make such a regulation can hardly be doubted in view of its reason and justice,” etc. Deit-rich v. Pa. B. B. Co., 10 Am. Rep., 711; Chicago & Alton B. B. v. Ban-dolph, 5 Am. Rep., 60.
    “When a passenger purchases a ticket, he only acquires the right to be carried according to the custom of the road. He does not acquire the right to insist that the company shall send him on a special train or out of the customary course of their road.” Bennett v. N. Y. Central & Hudson Biver B. B. Co., 35 Am. Rep.
    Anything that the agent at Princeton might have said is not material, so far as it would give plaintiff a right to disregard a well known regulation of the company, the conductor on the train from Princeton to Pulton had no authority to make any statement or representation to a passenger which would bind the company if the representation was to influence action as to some matter beyond the limit of his own run. Bailroad Co. v. Harris, 31 Miss., 214.
    If the agent at Princeton was mistaken, and if the conductor of the train from Princeton to Pulton was mistaken, still the evidence in this ease demonstrates, beyond question, that there was no willfulness or wantonness or reckless disregard of the rights of the passenger by any of these agents, that their faults;, if any there were, were negative, and the rights of the passenger grew out of the lack of proper knowledge on the part of the employes and not from any positive acts of wrong or malice or willful disregard of her rights. And yet, on this phase of the recoi’d, the court instructed the jury that if they believed that these actions were willful and wanton, the jury might award punitive and exemplary damages. K. C. M. & B. B. B. Co. v. Biley, 68 Miss., 765; 81 Miss., 214; 67 Miss., 24; Barker v. N. Y., etc., B. Co., 24 N. Y., 499; Bailroad Co. v. Statham, 42 Miss., 606; Cage v. Bailroad Co., 75 Miss., 17; Wilson v. Bail-
      
      road Go., 68 Miss., 9; McCullough v. Railroad Go., 33 S. W., 285; Raihuay v. Kendricks, 32 S. W. Rep., 42; Nunn v. Georgia R., 71 G-a., 710; Railroad Go. v. Kilgore, 32 Pa St., 294; Railroad Go. v. Stalham, 42 Miss., 607; Railroad Go. v. Kendrick, 40 Miss., 374; Hutchinson on Carriers, sees. 6, 14; Thompson, on' Carriers of Passengers, 226, 227; Woods, Master and Servant, secs. 263, 267, 268; Tillery v. Bond, 38 Ped. Rep.; Railroad Go. v. Carper, 112 Ind., 26; Burkett v. Lanata, 15 La. Ann., 330; Motile & Montgomery R. R. Go. y. Ashcraft, 48 Ala., 33; Louisville R. R. v. Minogue, 90 Ky., 369; Railroad Go. v. Scurr, 59 Miss., 456; Railroad Go. y. Purnell, 69 Miss., 652; Railroad Go. v. Higgins, 64 Miss., 80.
    
      Brewer & Greekmore', for appellee.
    It is contended by counsel for appellant that where a railroad company sells a ticket between two given points and they have two routes between the points, one a longer route than the other, that the passenger must of necessity take the shorter route or otherwise the defendant may lawfully put him off of the train in the night time, and we respectfully submit that to establish the precedent that they might put off a lady passenger m the night time over her protest and against her will because the route on Which she was traveling was a few miles longer than another route owned and controlled by the defendant between the same points, would be unreasonable, and especially would this be true where, as in this case, she took the route which she had been three times advised she could take by the defendant’s employes in charge of its passenger business, one of them giving her such advice being the passenger depot agent from whom she purchased the ticket. In support of this view we cite the following authority: Robvnson v. So. Pac. R. Co., 28 L. R. A., 773, 780. Church v. Chicago Railroad Go., 26 L. R. A., 616, relied upon by counsel for appellant, says that the passenger before taking the train should obtain the information as to which route to take from tbe agent from whom sbe purchased the ticket and should, ■act upon this information, and this our client did.
    Argued orally by
    
      Jas. 0. Longslreetfor appellant, and Earle Brewer, for appellee.
   Whitpiexd, C. J.,

delivered the opinion of the court.

Mrs. Harper lived at Henderson, Ky.; had been living there about 18 months. Prior to that time she had lived at Water Valley, Miss. On the 24th of July, 1901, desiring to mate a visit to Water Valley, she bought a ticket from Henderson, Ky., to Water Valley, Miss., from the ticket 'agent at Henderson. She had lived at Grenada, Miss., before she lived at Water Valley, and her husband and herself desired that she should go by way of Grenada, because she had acquaintances there. She says that she preferred that route, because she did not know where she would be delayed on the direct route by way of Jackson, Tenn., in the night time, and her husband and herself desired that she should go by way of Memphis, and stop over at Grenada. The agent told her that there was no difference in the price of tickets, and she took the Memphis route. The defendant company had two routes: One from Henderson, via Jackson, Tenn., to Water Valley, called the direct route; but the local train ran over this route. The other route was from Henderson, Ky., via Princeton, Ky., to Memphis, Tenn., and Grenada, Miss. Over this the fast train ran. When Mrs. Harper got to Princeton, Ky., she interviewed the ticket agent of the defendant company there, and he told her to take the Memphis train — positively told her not to take the other train. She accordingly took the Memphis train at Princeton. When the conductor of the train came around for tickets, she asked him if she was all right —if she could go by way of Memphis. He told her that certainly. she could go that way, and honored her ticket, and carried her to Brighton, Tenn., within one-half hour’s run of Memphis. She was much nearer Water Valley, at Brighton, going via Memphis, than sbe would have been returning from Brighton to Fulton, Ky., and tbence going to Water Valley. But at Brighton another conductor refused to pass her any further on that ticket; saying that the ticket was for the other route, and not good on that route, and that she would have to get off. It was then about half past eight at night. Mrs. Harper fully explained to him all that had passed between her and the two ticket agents and the conductor. On this point she says: “I told him the man had sold me a ticket for that route, and all of the railroad officials had instructed me to go on that way, and that I could not see why I could not; that I would get to Water Valley at 6:30 in the morning, and the other way would put me at Water Valley the day after; and that I had bought the ticket for that route. He put me off against my will; just willfully put me off. Of course, he did not take me bodily and put me off, but he told me I had to do it, and, of course, I did it. I went back to Fulton and spent the night.” She further testifies that he positively refused to accept any explanation from her. She got to Fulton on the back train about ten o’clock that night. She would have been in Memphis in another hour on the route she was on. She stayed in the hotel at Fulton until five o’clock the next morning. She knew no person at Brighton, Tenn., and stayed at the depot there about twenty minutes, until the train going to Fulton came along. This was an accommodation passenger train. At Fulton, Ky., the ticket agent, according to her testimony, which the jury -believed, pointed out to her the train which he said was going to Water Valley, and also the very coach on the train which she should take to go to Water Valley. After the train had started, the conductor of this train which she was on told her she was on the wrong train, but that he would put her on the right train directly. She says that by this time she was almost desperate, that she was really sick from anxiety and worry, .and that she notified the conductor that she was thus sick from anxiety and worry. She had really gotten on the car that went to Nashville, Tenn., from Martin, Tenn. The conductor failed to keep bis promise to put ber in tbe right coach, and she was about to be carried to Nashville, Tenn., from Martin; but she pulled the bell rope and stopped that train, and got off at Martin, and found herself about fifty yards from the train going to Water Valley, but it was just pulling out, and thus she got left, so far as that train was concerned. She went to a hotel so sick that she could not go to the dinner table, and dinner was served in her room. She stayed at Martin all day, sick, and had to go to bed. She then took, at last, the right train, and reached her destination, after all this worry, vexation, and delay — quite enough to make any woman traveling by herself thoroughly sick from anxiety and worry. She stated that the agent at Henderson told her expressly to go by Memphis, because she would make better connection that way, and that she went through Memphis, because she passed through Memphis in the night. She says that she had gone from Water Valley to Henderson by way of Memphis, buying her ticket at Water Valley via Grenada; that she had gone that way twice. She says that the conductor at Brighton was not insolent, but he was positive, and compelled her to get off. She further testifies that the circuitous route from Henderson to Water Valley was nevertheless the quickest route, by five hours, because over that route the fast train ran. She further says that the conductor on the train from Princeton told her that the Memphis route was the best route and that she remained on the train on his advice until they got to Brighton— nearly to Memphis. She says that both the conductor and the ticket agent at Brighton told her to take that route. The proof of actual damages in a small amount — some $17 — was made. The jury returned a verdict for the.plaintiff for $817.

The chief contention on the part of the appellant is that it was incompetent to admit the declarations of the two ticket agents at Henderson and Princeton, and of the conductor on the train from Princeton, Ky., to Brighton, Tenn. This contention is unsound. The ticket, on its face, contained no information as to which route should be taken, nor did it advise appellee of the rule of the company relied on here — that passengers on their trains must go by direct route. Mr. Justice Lamar, speaking for the United States Supreme Court, in N. Y., L. E. & W. R. Co. v. Winter’s Administrator, 143 U. S., at pages 69, 70, 12 Sup. Ct, at page 359, 36 L. Ed., at pages 78, 79, says: “The grounds upon which it is insisted that the evidence referred to was inadmissible are that the ticket itself, and the rules and regulations of the road with respect to stop-over checks, constitute the contract between the passenger and the road, and the only evidence of such contract, and that no representations made by a ticket seller could be received to vary or change the terms of such contract. This contention cannot be sustained, and is opposed to the authorities upon the subject. While it may be admitted, as a general rule, that the contract between the passenger and the railroad company is made up of the ticket which he purchases, and the rules and regulations of the road, yet it does not follow that parol evidence of what was said between the passenger and the ticket agent from whom he purchased his ticket, at the time of such purchase, is inadmissible, as going to make up the contract of carriage, and forming a part of it. In the first place, passengers on railroad trains are not presumed to know the rules and regulations which are made for the guidance of conductors and other employes of railroad companies as to the internal affairs of the company, nor are they required to know them. Hufford v. Grand Rapids & I. R. Co., 64 Mich., 631 [31 N. W., 544, 8 Am. St. Rep., 859]. In this case there is no evidence, as already stated, that notice or knowledge of the existence of the rules of the defendant company, or what they were, with, respect to stop-over privileges, was brought 'home to the plaintiff at the time he purchased his ticket, or at any time thereafter. There was nothing on the face of the ticket to show that a stop-over check was required of the passenger as a condition precedent to his resuming his journey from Olean to Salamanaca after stopping off at the former place. It is shown by the evidence that Olean was a station at which stop-over privileges, were allowed. Under snob circumstances, it was entirely proper for tbe passenger to make inquiries of tbe ticket agent, and to rely upon wb'at tbe latter told bim with respect to bis stopping over at Olean. Hufford v. Grand Rapids & J. R. Co., supra; Palmer v. Charlotte, C. & A. R. Co., 3 S. C., 580 [16 Am. Rep., 750] ; Burnham v. Grand Trunk R. Co., 63 Me., 299 [18 Am. Rep., 220] ; Murdock v. Boston & A. R. Co., 137 Mass., 293 [50 Am. Rep., 307] ; Arnold v. Pennsylvania R. Co., 115 Pa., 136 [8 Atl. 213, 2 Am. St. Rep., 542].”

Tbis is decisive of two propositions: First, that these declarations were competent; and, second, tbat tbis appellee was not bound by tbis alleged rule, of wbicb sbe bad no knowledge. It will be noted tbat tbis bolding of tbe United States Supreme Court is squarely to the effect tbat tbe appellee would not have been bound by tbe rule unless information of it bad been communicated to ber, in any event. It is not necessary, however, in this case, on its facts, to hold that tbe appellee should rely on this statement of the principle in its strictness, though we think tbe principle is just as stated by the United States Supreme Court. For here it is manifest that she did make inquiry of the ticket agent and of tbe conductor as to what route she should take, and tbe authorities cited by learned counsel for the appellant go no farther than to bold tbat, where there is a rule such as here involved, it is the duty of tbe intending passenger to find out what route be should take, by inquiry, and that it is not tbe duty of the railroad company to bring home notice of this rule to such intending passenger, otherwise than in answer to inquiry. In the case of Church v. Chicago, etc., R. Co. (S. D.), 26 L. R. A., 616 — which, it should be noted, was decided without any counsel appearing for the appellee, the passenger — the court reviews several authorities upon this particular question, as to which the editor, in the footnote, says: “Very few precedents exist.” One of these authorities, relied on by appellant (Chicago & A. R. Co. v. Randolph, 5 Am. Rep., 60), distinctly says: “Tbe required information can always be bad from tbe agent where tbe ticket is purchased, and it is but reasonable to require passengers to obtain the information, and to act upon it.” In Cheney v. Boston, etc., R. Co. (Mass.), 45 Am. Dec., 190, speaking upon this point, the court says: “The plaintiff might have inquired and informed himself of that.” This is precisely what this plaintiff did, and “'the direful spring of the woes unnumbered” which this plaintiff suffered was precisely the misinformation given her by the ticket' agent. If it were a sound legal proposition that the company is not bound unless the plaintiff informs himself of the rule, still that condition was fully complied with in this case. Before passing from the Church, Case, supra, we desire to say that the only erroneous information given in that case was given by a mere gatekeeper at the Milwaukee depot, whose sole duty, as pointed out at page 619, 26 L. R. A., was “to assist passengers in getting on the right trains.” • As stated: “He did not give her any misinformation. Tie simply did not advise her of the changes to be made at a junction five hundred miles distant.” Mrs. Harper was not dealing with a gatekeeper. She dealt with the ticket agent, who was authorized to give the very information she sought.' Other authorities showing the competency of the declarations of the ticket agent and conductor, if any are needed, may be found in the learned note to Robinson v. So. Pac. R. Co., 28 L. R. A., 775. It is also relied on and insisted by counsel for appellant that, as between the conductor and the passenger, it was not the duty of the conductor to listen to the explanation made by Mrs. Harper. K. C., M. & B. R. Co. v. Riley, 68 Miss., 765, 9 South., 443, 13 L. R. A., 38, 24 Am. St. Rep., 309, and Railroad Co. v. Drummond, 73 Miss., 813, 20 South., 7, are decisive of the unsoundness of this view. In the Drummond case the passenger simply protested: he did not make any explanation; and it was on this ground that the decision proceeded. It was not only the duty of the conductor to listen to this most reasonable explanation, but, having heard it, as he did, it was wrong — a willful wrong warranting the imposition of exemplary damages — to put this lady off the train under the circumstances. It is none the less a willful wrong because be acted in a gentlemanly manner, and was guilty of no insolent conduct. Sbe was subjected to tbe most grievous wrong, and sbe was intentionally subjected to it, after full disclosure of wbat bad occurred between ber and tbe ticket agent of tbe company. Plaintiff was clearly entitled to recover, under tbe first count in tbe declaration, not only tbe actual damages sbe sustained, but exemplary damages, and a verdict for a larger sum than here recovered would not have been disturbed by us. It is idle to argue tbat tbe conductor, flatly refusing to listen to tbe perfectly reasonable explanation made by tbis woman, and putting ber off, under tbe circumstances detailed in tbe evidence,'at nigbt, was not guilty of such intentional and oppressive wrongdoing as to warrant tbe imposition of punitive damages. It may as well be understood, once for all, tbat tbis court proposes to stand by tbe doctrine announced in tbe Drum-mond and Biley cases, as tbe just and true doctrine. But tbe difficulty in tbis case is tbat tbe plaintiff only asked for actual damages under tbe first count, wben sbe was entitled to punitive damages, and yet asked and obtained an instruction for punitive damages under tbe second count, under wbiob it is clear tbat sbe was entitled to no damages at all. Under tbe well-settled decisions of tbis court, it was not tbe duty of tbe conductor to place Mrs. Harper in' tbe right car, and tbe mistake of tbe ticket agent at Fulton was corrected by tbe proper information given by tbe conductor. Mrs. Harper bad nothing to do except to get up from ber seat and walk forward through tbe vestibule train to tbe Water Valley car. She was not sick to such a degree as to require tbe assistance of tbe conductor. It follows tbat tbe fifth and seventh instructions for tbe plaintiff, to tbe effect tbat she was entitled to exemplary damages, are erroneous. In tbis curious attitude of the ease, reversal must necessarily follow, for we must indulge tbe presumption tbat tbe jury did their duty, and obeyed tbe instructions of tbe court, which did not allow them to find anything but actual damages under tbe first count, but which, did allow them to find exemplary damages under tbe second count. The verdict cannot, under the instructions, be referred to the first count, since the actual damages were only about $17. It is obvious that it must be referred to the second count, under which no recovery at all could have been allowed. "What we have said indicates the proper disposition of the case on a second trial, it being only necessary to add that the modification of the second instruction given for the defendant was necessary to a correct statement of the law.

Reversed and remanded.  