Crocker v. New London, Willimantic & Palmer Railroad

Sanford, J. The defendants were a railroad corporation, running regular trains of cars on their road between the cities of Norwich and New London, and transporting passengers in said cars, as a part of their business. They had established, and given public notice of “ a rule or regulation,” that the fare for passengers, in their cars from Norwich to New London, should be fifty cents, if it was paid and a ticket procured by the passenger before taking his ..seat in the cars, otherwise it should be fifty-five cents. The plaintiff took a seat in the car, without a ticket, and when called upon by the conductor of the train, offered to pay fifty cents for his passage to New London, but refused to pay any more. And upon the trial, he claimed to have proved that he went to the office of the company, where tickets were usually sold, at a reasonable time before the starting of the train, to procure a ticket, which he was ready to pay for; that he found the office closed, and that there was no person at the office of whom a ticket could be obtained, at that time, or afterward, until after the departure of the train, and that he informed the conductor of these facts at the time his fare was demanded. And the court charged the jury in substance, that, if the facts were as claimed by the plaintiff, he had a right to retain his seat; the conductor had no right forcibly to remove-him from the car, and the defendants were liable to the plaintiff for the personal injury to him, occasioned by such removal. The first enquiry arises upon this part of the charge. The defendants were common carriers of passengers, and as such, they were bound (except in certain peculiar cases, which need not here be specified) to carry all who applied for transportation, upon payment of their reasonable compensation; and they had the right to prescribe reasonable rules, and regulations, regarding the performance of their — 260 — obligations and the collection of their dues. Angelí on Carriers, § 524, (2,) 530. 4 Esp., 260. ' 7 Met.; 596. In this case, it was agreed on the trial, that the regulation of the company, regarding their fare as above-mentioned, was a reasonable and legal one. It was, probably, established for the protection of the company against the errors, and possible frauds, of the conductors of its trains, while, at the same time, it would facilitate the performance of the conductors’ duties. It was notified to the public, in order -that passengers might be induced, and prepared, to conform to it. As a rule for the government of the conductor, it was imperative. It made it his duty to account, at the treasury of the company, for the fare of every passenger, by the delivery there, of a ticket, or of fifty-five cents in money. It gave him no discretionary power. It is of no importance in this enquiry, whether the rule was wise or efficacious, for the purpose for which it was established, or not; it is enough, that it was reasonable and legal; one which the company had a right to make, and to enforce, and the only legitimate enquiry would seem to be, what was the' rule, and what its import and effect. The passenger’s right to his passage must depend, either upon the common law obligation of the carrier to carry all who apply, or upon some special contract of the carrier. The common law obligation attaches only upon the payment of, or readiness to pay, the carrier’s reasonable compensation, and compliance with the carrier’s reasonable regulations. It is said that the admitted reasonableness of the regulation mentioned, is applicable to that regulation only as a whole, and not to its distinct alternatives, independent of each other. I think, that by fair construction of the motion, it appears that fifty-five cents, payable to the conductor in the car, was a reasonable price for the passage. It is agreed, that that sum was refused by the plaintiff; the common law obligation to carry the plaintiff, then, had not attached upon — 261 — the defendants, and the plaintiff, under that obligation merely, had no right to retain his seat. But the plaintiff contends, that the defendants, having published this regulation, were bound to furnish tickets, and, for that purpose, to keep an office, and an agent in attendance at all reasonable times. It is obvious, that the law, independent of any special contract, imposed no such duties upon the defendants. Those duties, therefore, and their correlative rights and obligations, if they existed, originated in the rule, or regulation, and its promulgation, and were founded only upon the supposed special undertaking of the company expressed or implied, in that regulation. It becomes important, then, to ascertain the exact import of that regulation, and its effect in imposing upon the defendants a binding legal obligation. That the meaning and import of the regulation were what the plaintiff claims, may be conceded ; but did it, like a valid contract, impose upon the defendants a legal obligation, from which they could not recede at pleasure? Was the rule thus promulgated, and thus construed, a contract ? I think it was in the nature of a mercantile advertisement, rather than a contract; proffered on one side,to be closed by a mere acceptance on the other. Such advertisements, it is believed, are now considered, or treated, as proposed contracts, to the performance of which, the advertisers may be held by a mere acceptance, without further negotiation. For example, could a merchant advertising goods for sale, at a price specified, be subjected, in an action at law, if he should raise the price, or withdraw the goods altogether from the market? But suppose that published rule was a proffered contract, which might be closed by a mere acceptance; like all other proposals, until accepted, it might be withdrawn at pleasure. It has been already remarked, that the defendants’ obligation to furnish a ticket, and the right of the plaintiff to obtain one, on request, if such right and obligation existed, must have had their foundation entirely in the supposed special — 262 — undertaking which the published regulation of the defendants imported ; and, in this connection, it may be added, that, independent of any special contract, the whole duty of the defendants toward the plaintiff, was to carry him for a reasonable compensation in money. The defendants were ready to carry him, but he refused to pay them their reasonable compensation of fifty-five cents, and insisted upon holding them to their proposition to furnish a ticket, or its equivalent in a passage, at the price of a ticket. His right to retain his seat, therefore, depended not on the common law obligation of the carriers, but upon the assumed special undertaking of the defendants to furnish and carry for a. ticket. The breach of that assumed undertaking is the gist of the plaintiff’s complaint. His claim is, that having, on his part, done everything required by the defendants’ regulation, to entitle himself to a ticket, and having failed to obtain one, through the fault of the defendants, he has, as against them, acquired the same rights, as if his efforts to obtain such ticket had been successful. However true the legal principle involved in this claim may be, that principle has no application in the case before us. The published regulation being a mere proposal, until accepted, imposed upon the defendants no legal duty; the minds of the parties not having met, no contract between them had been made. Before the plaintiff’s appearance, the agent had closed the office, and retired, and so the proposal was withdrawn, and withdrawn before acceptance. An intention, or a readiness, to accept an offer, is a very different thing from an actual acceptance. True, according to the plaintiff’s claim, his failure, by a timely acceptance of the offer, to make a binding contract, was chargeable entirely to the defendants, but still there was no actual acceptance of the proposal, no uniting of the minds of the parties, and no contract made. Again. There can be no breach of a contract, until the contract itself has been first completed by the meeting of the — 263 — minds of the parties to it. Here, the assumed breach, on the part of the defendants, occurred when the agent withdrew, and closed the ticket office, but that was before the appearance of the plaintiff’ at the office, and, for aught that appears, before his mental determination to apply for a ticket, and, certainly, before any notice, express or implied, actual or constructive, of such determination, was given to the defendants or their agents. Closing the office was, for the time, at any rate, a most effective withdrawal of the proposal to furnish tickets, and, necessarily, communicated notice of such withdrawal to the plaintiff. The conclusions, upon this view of the question, are, 1. As common carriers merely, the defendants were under no legal obligation to furnish tickets, or to carry passengers for less than fifty-five cents in money, thfit being agreed to be a reasonable price. 2. The plaintiff’s claim to a passage, as if he had a ticket, rested entirely on the assumed engagement of the defendants to furnish tickets, and the plaintiff’s endeavor to procure one, defeated by the defendants themselves. 3. The published regulation of the defendants was not a contract, creating a legal debt or duty, but a mere proposal, which might be suspended, or withdrawn at pleasure. 4. It was suspended, if not withdrawn, by the closing of the office, and the retirement of the agent. 5. The proposition being suspended or withdrawn, the parties were in the same condition, as before it was made. The defendants, continuing common carriers, were bound to carry for their reasonable compensation, fifty-five cents, but not otherwise. By the very terms of the original regulation, upon one alternative of which the plaintiff relies, if a ticket was not paid for and procured by the passenger, before entering the car, his fare should be fifty-five cents. When the plaintiff entered the car, without his ticket, he knew the terms on which the defendants proposed to carry him ; he made no objection to those terms, until after the train had started, and so entering the car and proceeding on the way, he must be — 264 — taken to have acceded to the proposition, and agreed to pay the price which the rule required. Suppose that the defendants, instead of removing the plaintiff from the car, upon his refusal to pay the fifty-five cents, had carried him through, and then sued him for their compensation. Could the facts, disclosed in this motion, have been set up in bar of the suit ? I think not. Upon the whole, I think that the plaintiff refusing to pay the fifty-five cents, the conductor had a right to remove him from the car, using no unnecessary force for that purpose, and that for such removal, the defendants ought not to be subjected in this action, and, consequently, that the charge, on this point, was wrong. Upon the second point, the legal principles, enunciated in the charge, are in my judgment correct. If the plaintiff was wrongfully put out of the car, he had a right to re-enter, and if in his endeavor to do so, he received an injury, in the manner stated in the motion, he was entitled to recover for such injury, unless there was, on his part, a want of reasonable care and prudence which produced, or essentially contributed to produce, said injury. But if the plaintiff’s removal from the car was rightful, or if, in his attempting to re-enter, there was on his part a want of reasonable care, or prudence, which’ produced, or contributed essentially to produce, said injury, then he was not entitled to recover for it. The plaintiff claimed that, for the purpose of removing him from the car, and keeping him off, the conductor called to his assistance a servant of the defendants; that thereupon a struggle ensued between the plaintiff, on the one side, and the conductor and his assistant on the other, and that before the termination of the struggle, and immediately upon the plaintiff’s coming from the car to the ground, the servant intentionally kicked him in the face. The defendants claimed that such kick, if given, was without the knowledge, and without any particular, or express, direction of the conductor, or any other officer, or agent of — 265 — the company. And they prayed the court to charge the jury that, without such knowledge, or direction, they could not be held liable. The court charged the jury that, upon the facts, as claimed by the plaintiff, the defendants were liable for the kick, and omitted to charge, as requested by the defendants. The jury should have been instructed in substance, that, if the kick was given by the servant, for the purpose of keeping the plaintiff off from the car, and was, under the circumstances, but the exercise of necessary and proper force for that' purpose, the defendants were responsible for it, provided the plaintiff had been wrongfully put out, and had a right to re-enter; but, if he had no right to re-enter, then the kick was justifiable. But, if such kick was not necessary, and proper, for the purpose of keeping the plaintiff off, and was by the servant intentionally given, without the knowledge or direction of the conductor, or any other officer or agent of the company, the defendants were not liable for it. The liability of the master for acts of his servant seems to depend upon the question, whether the servant, at the time, and in the particular in question, was acting under, and in execution of, authority from the master. Salk., 282. 20 Conn. R., 284. In this case, the servant was called to assist the conductor, and may be considered as having a general order, or command, to keep the plaintiff off; but that order authorized the employment of none but usual, and legal, means for the purpose, and the intentional employment of such an unusual, unnecessary, and unjustifiable measure, as a kick in the face, could not have been contemplated by the conductor, and, in the absence of proof, the law will not deem it authorized by him. ■ In Noyes’ Max., ch. 44, it is said, “ If I command my servant to distrain, and he ride on the distress, my servant shall be punished, not I.” This authority is cited with approbation by Lord Ellenbor — 266 — ough, Ch. J., in McManus v. Cricket, 1 East, 106, and seems to stand upon the principle that an order to do a lawful act, which may be, and ordinarily is, done in a lawful manner, confers authority to do the act in that manner only, for that manner only, is presumed to be in the contemplation of the parties. If, therefore, the servant does it otherwise, he exceeds his authority, and he alone is liable for it. 2 Kent’s Com., 284. 35 E. C. L. R, 448. 17 Mass. R, 508. But whether the defendants would be liable, or not, in a proper form of action, it is quite clear they are not liable in trespass. In order to render the master liable for the servant’s act, in trespass, it must be shown that the act was done in the execution of the master’s order, or with his assent,' or approbation. And where it is shown that the act was done without his knowledge, or direction, his silence can not operate against him. 20 Conn. R, 284. 2 Met., 606. But this question has been so recently under examination in this court, in the case of The Thames Steamboat Company v. The Housatonic Railroad Company, ante p. 40, decided at the last term, and has been so thoroughly discussed by the judge, who gave the opinion of the court in that case, that the further consideration of it seems now unnecessary. I advise that a new trial be granted. In this opinion, Waite, Ch. J., concurred.