Georgia Railway & Electric Co. v. Baker

Cobb, P. J. (After stating the foregoing facts.) It is conceded that there is no law of this State, and no valid ordinance of the city of Atlanta, requiring street-railway companies to issue transfers to passengers, authorizing them to ride upon a car other than the one which they originally board. This fact being con — 565 — ■ceded, the argument is made that the right to ride upon the second car, resulting from the issuance of the transfer, is a mere gratuity. This is not true. The issuance of transfers is a voluntary act on the part of the company; using the word “voluntary” in its ordinary sense. The company is not bound to issue transfers. It is under no obligation to transport the passenger to any other point than one on the line of the car originally boarded. But when the ■company voluntarily and without any compulsion adopts the custom-of issuing transfers for the consideration paid the conductor ■of the first car, it binds itself by a contract to transport the passenger from the point where he enters the car -to a point on any line to which, under the custom of the company, it is usual to issue transfers. In the absence of' a -custom, the company simply sells to the passenger for the fare paid the right to ride between points on the first line. Under a custom of issuing transfers, the offer is made for a stated consideration to transfer the passenger from a point on one line to a point on any other -line embraced within the custom. When the passenger pays his fare to the conductor of the first car and requests a transfer, and a transfer is delivered, the ■offer arising under the custom is accepted, and the contract becomes complete, and the one fare is the consideration for the transportation of the entire journey. The company does not contract merely for the journey on the first line and donate a journey on the second line. Some companies will issue tickets entitling passengers to six rides for twenty-five cents, when the usual fare paid is five cents for each ride. No one would seriously contend that -only the first five rides, under such circumstances, were paid for, and the sixth was a mere donation. The company is in the business of selling rides. It may fix the amount which shall be paid for a ride upon - either one or more cars. When this amount is paid, the passenger is a purchaser of a ride between the points covered by the contract. This is true whether or not, as an original proposition, the passenger could demand a right to ride between these points for the amount paid. The position that the transferred passenger is receiving a mere gratuity when he rides upon the second car is untenable. 2. Whether the transfer slip used by a street-railway company is to be looked to as conclusive evidence of a right to ride on the •second car, and whether any mistake made in the issuance of the — 566 — transfer, resulting in its showing upon its face that the right to ride upon the second car does not exist, is a question about which the courts are not agreed. According to some of the decisions, the transfer received must be considered as conclusive evidence of the passenger’s right to ride, although it may not in its true sense express or evidence the contract into which the passenger enters. These decisions hold that if the transfer is inaccurate, the expulsion of the holder upon the refusal to pay additional fare is justified, although the mistake or defect is due to the negligence of the conductor who issued the transfer. On the other hand, there are numerous decisions which deny the transfer such conclusive force, and dignity, and rule that the passenger has a right to rely upon the acts and statement of the conductor issuing the transfer, and if he is expelled from the second car on account of a mistake or defect in the transfer, notwithstanding he has acted in good faith and offered a reasonable explanation, the carrier is liable in damages for such expulsion. See the cases cited in Hornesby v. Ga. Ry. & El. Co., 120 Ga. 913, and in the note to that case in 1 Am. & Eng. Annotated Cases, 392. In the Hornesby case it was held that when a street-railway company voluntarily offered to passengers the right to a transfer from one of its cars to another, to continue the journey without the payment of additional fare, it was reasonable to require, as a condition -precedent to the exercise-of this right, that the passenger should tender to the conductor of the second car a punched transfer ticket, which must be used within the time indicated by punch marks, provided a car upon which the passenger could be conveniently and comfortably transported passed the transfer point within .the time so limited. The question now before us was not directly involved, in that case. Attention was then, however, called to the conflict of authority abpve referred to, on the question now under consideration. We think that our rulings in reference to tickets issued by ordinary railway companies are more in line with those authorities that hold that the transfer slip is merely evidence of the contract, and that if any mistake is made in-issuing the transfer, so that it does not express the true contract, the conductor of the .second car, on presentation of the-transfer, and a reasonable explanation of the mistake that appears c-n the slip, would at his peril decline to transport the passenger, if as a matter of fact a proper transfer was called for and the pas — 567 — senger was in no fault in reference to the matteer. And we think this is the true rule. As was aptly said by Caldwell, J., in O’Rourke v. Citizens’ Street-Railway Co., 103 Tenn. 132 (52 S. W. 872), “It is the contract, and not the ticket, that gives the right to transportation. The ticket is but an evidence of the contract, made out and furnished by the carrier; and 'if it fail to disclose the true contract, the fault is with the carrier, and it is responsible for the natural consequences of the variance. The passenger is not required in law, nor allowed in fact, to print or write or stamp the ticket. .The carrier alone has that right, and the passenger is authorized to believe and presume that it will be properly exercised, and that the ticket, when delivered, is a faithful expression of the contract as made.” In the case just quoted from, there was printed on the transfer a statement requiring the passenger to examine the date, time, and direction, and see that the transfer was correct. There was also a statement that the passenger accepting the transfer agreed “to read and be bound by all the conditions on the back” of the same, “subject to the rules of the company.” These conditions, so far as they required the passenger to read the transfer and examine the date, etc., were held to be unreasonable, for two reasons. In the first place, the time usually occupied in making a trip on a street-car was not such as to permit a compliance with the regulation; and in the second place, if there was time for the purpose, the transfer was more or less complicated in its nature, and an inexperienced though intelligent passenger, who happened to be unacquainted with the system of punch marks, names of streets, etc., of the particular company, would be unable to ascertain whether it was correctly issued or not. In that case the transfer was of such a character that even an intelligent officer of the company, who testified as a witness, was unable to explain the system to the satisfaction of the trial judge. As was said by Caldwell, J., in the opinion: “It can not be fair or just or reasonable to require passengers, in the hurry of rapid street-car travel, to decipher at their peril a check whose meaning so intelligent a judge can not ascertain by careful and deliberate inspection.” In Laird v. Pittsburg Traction Co., 166 Pa. St. 4, a similar condition on a transfer check was under consideration; and it was said: “If that is intended to be regarded as a reasonable regulation, the check should be given to the passenger before he leaves the car, a suffi — 568 — cient length of time to afford him at least an opportunity of reading it and, if wrong, having it corrected.” The contract between the carrier and the passenger is made by the .offer held out by the company, although voluntary on its part, to transport the passenger on two lines. The transfer slip is mere evidence of the right to ride upon two lines; and if there has been in fact a contract between the passenger and the agent of the company in charge of the first car, the right to ride upon the second car is complete, although the evidence of the right is defective. We are aware that this rule may lay. the carrier open to imposition in some cases. But, on the other hand, a contra^ rule would impose upon the traveling public, and especially those members of it who are inexperienced and uninformed, a serious burden, and one which it is not reasonable or proper that they should be compelled to carry. It is true that the carrier is under no obligation to make the contract; but when it voluntarily enters into one, it is none the less a contract, and, on account of the public character of the business in which it is engaged, the courts have authority to determine whether the rules and regulations adopted by it in reference to the conduct of its business as a carrier of passengers are reasonable and proper. If what is contained in the statements on the transfer slip were embodied in an express contract based upon a sufficient consideration, it may be that the courts would not interfere. . 3. It is said that there is a condition on the transfer that if there is any controversy in reference to the same, the holder will pay fare, and call at-the company’s office for correction. There was a similar condition on the transfer involved in the ease decided by ‘the Supreme Court of Tennessee, above referred to. In reference to this stipulation, the court said: “This condition is unreasonable, in that it makes the conductor, for the time, the sole judge of the sufficiency of the ticket, and requires the passenger to pay additional fare though his ticket may be refused without sufficient cause; and further, in that it .requires the wronged passenger, who so pays, to apply for refund at the office of the company, which must be remote from the houses and business places of most passengers, and then limits the amount to be received by such person to that wrongfully exacted. It puts all of the burden of the ‘controversy’ upon the wronged passenger, and none upon the wrong — 569 — doing company, and thereby makes the just suffer for the unjust.” We thoroughly concur in this view. Counsel in their argument say that the decision of the Supreme Court of Tennessee which we have followed was based upon a statute of that State requiring a street-railway company to issue transfers. There is no reference to a statute in the opinion of the court. In addition to this, none of the reasoning of the learned judge who delivered the opinion is based upon any statute, and the questions seem to have been solved merely by the application of general rules of law. 4. The averments of the petition, that the conductor of the second car refused to recognize the transfer and demanded -payment of a second fare, and threatened to eject the plaintiff, in an insulting manner, were not sustained by the proof. The evidence, however, does show that he refused to accept the transfer, and that he demanded a second fare, and that he told the plaintiff that if she did not pay the second fare he would be compelled to eject her from the car. But the plaintiff testified that he acted in a gentlemanly manner, and that there was nothing insulting, either in his words or in his conduct, other than such an insult as may arise from a simple threat to eject. It is a case, therefore, where the conductor has simply complied with what he understood to be the rules and regulations of the company by which he was employed. In complying with these rules, although he might have had the manner of a perfect gentleman, and used language which would be proper in the most polite society, still, if the plaintiff had a right to ride upon the car, and w&s threatened with expulsion, no matter in what words, it was a breach of the duty which the company owed her as a passenger, and gave her a right of action against the company. A jury would have been compélled to find that the explanation made by the plaintiff of the mistake in the transfer was reasonable, and although the conductor was placed in an embarrassing position, under the law he was compelled to choose between two alternatives; and if he made a mistake and used a threat to expel a passenger who had a right to ride on the car, the company would be liable, without reference to the manner in which he made the -threat and his good faith in the matter. 5. There are some decisions which hold that the damages recoverable for an expulsion resulting from the wrongful refusal to accept a transfer, the mistake being due to the conductor of the — 570 — initial car, are compensatory only. Pine v. St. Paul City Ry. Co., 50 Minn. 144; Eddy v. Syracuse Rap. Trans. Co., 50 N. Y. App. 109. In Ohio it was held by a circuit court that the passenger’s recovery was limited to the additional fare paid, when there were no aggravating circumstances. Carr v. Toledo Trac. Co., 9 Ohio Cir. Ct. Rep. 281. But we think the decision by the Supreme Court of Pennsylvania in the case of Laird v. Pittsburg Trac. Co., 166 Pa. St. 4, takes the better view of the matter. It was there held that in such a case the damages are not limited merely to the amount sufficient to compensate the plaintiff for the trouble and delay caused by the conduct of the company and the expense necessary to complete his journey, but he is entitled to substantial damages, as for an inexcusable trespass. In that case there was a request to instruct the jury that the damages to be recovered were simply those resulting from the trouble and inconvenience caused by the expulsion from the car. In commenting on the propriety of this instruction, Sterrett, C. J., well says: “To sanction such a measure of damages, as 'is suggested in this point, would tend to encourage rather than prevent the commission of indignities to which no well behaved passenger in a public conveyance should be subjected.” 6. The charge of the court was in effect an instruction that the plaintiff was entitled to recover. There would have been no error in instructing the jury in terms to this effect. Under the undisputed facts, a recovery was demanded, and the only question to be determined was the amount of the verdict. In the instructions on the subject of damages the court charged: “The worldly circumstances of the parties and all the attendant facts are to be weighed.” This charge was assigned as error, for the reason that there’ was no evidence to authorize it. There was no evidence as to the worldly circumstances of the parties. While the verdict is not large, and possibly a larger verdict, as a recovery of general damages, would be permitted to stand, still the question of what should be assessed as general damages was a matter for determination by the jury, and we can not undertake to say that the jury was not misled by the erroneous charge into giving a larger amount than they in their judgment would have thought sufficient, in the absence of such an instruction. Judgment reversed. All the Justices concur, except Fish, O. J., absent.