Chase v. Atchison, Topeka & Santa Fe Railway Co.

[553] The opinion of the court was delivered by William R. Smith, J.: The ruling of the court below in sustaining a demurrer to the evidence is defended by counsel for the railway company on the ground that the cause of action set out in the petition was not for the breach of a contract of carriage, but for a tort only. They rely on decisions of this and other courts which hold that a person traveling on a railway-train without a ticket entitling him to ride may be regarded by the conductor as a trespasser, and may be ejected, no unnecessary force being used, without any liability on the part of the railway company therefor. (See A. T. & S. F. Rld. Co. v. Long, 46 Kan. 260, 264, 26 Pac. 682; A. T. & S. F. Rld. Co. v. Gants, 38 id. 608, 17 Pac. 54, 5 Am. St. Rep. 800; Rolfs v. Railway Co., 66 id. 272, 71 Pac. 526, and cases cited.) There can be no doubt that the principle stated is settled by the great weight of authority. (Mosher v. St. Louis &c. Railroad Co., 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249; Taft, J., in Pouilin v. Canadian Pac. Ry. Co., 52 Fed. 197, 3 C. C. A. 23, 17 L. R. A. 800; Ell. Rail. §1594; Hutch. Carr. § 580j.) The application of this rule would defeat the plaintiff below, unless it can be said that the averments of the petition are sufficient to constitute a cause of action for breach of contract to carry her as a passenger. It must be remembered that the petition was not attacked by demurrer for misjoinder of causes of action, and that the defendant below did not move to strike from it irrelevant and redundant matter. If two causes of action were improperly joined, the fact that they were blended and commingled in one statement did not deprive defendant below of the right to [554] demur for misjoinder. (Benson v. Battey, ante, p. 288, 78 Pac. 844.) To reach a defect of this kind, appearing on the face of the petition, a demurrer was the proper method of attack. (Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52.) Defendant below, after answering, was content to proceed with the trial of the cause against the averments of a petition which, if objected to properly and in time, might have driven the plaintiff to elect whether she based her right of recovery on contract or tort. No defects were pointed out while plaintiff below was in a position to amend. Under these circumstances, if sufficient facts can be found to constitute any cause of action it is the duty of this court to sustain the petition. (Bright v. Ecker et al., 9 S. Dak. 192, 68 N. W. 326. See, also, Seaton v. Scovill, 18 Kan. 433, 21 Am. Rep. 212, note, 26 Am. Rep. 779; O’Connell v. Rosso, 56 Ark. 603, 20 S. W. 531; Connyers v. The Sioux City & Pac. Ry. Co., 78 Iowa, 410, 43 N. W. 267; Central Railroad Co. v. Pickett, 87 Ga. 734, 13 S. E. 750; Dailey v. Houston, 58 Mo. 361; Hewitt v. Brown, 21 Minn. 163.) Under the code a statement in a petition of the facts constituting a cause of action, set forth in ordinary and concise language, without repetition, is sufficient. (Civil Code, §87; Gen. Stat. 1901, §4521.) The allegations respecting the tortious acts of the conductor may be treated as surplusage. (Bernhard v. City of Wyandotte, 33 Kan. 465, 467, 6 Pac. 617. See, also, Campbell v. The Mo. Pac. R’y Co., 121 Mo. 340, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530; Oglesby v. Mo. Pac. R’y Co., 150 id. 137, 51 S. W. 758; Radcliffe v. The St. L. I. M. & S. Ry. Co., 90 id. 127, 2 S. W. 277.) The petition avers that plaintiff below paid her fare [555] to the Santa Fe company for her passage from Chicago to Pittsburg and return, and was given a ticket by the agent of defendant in error at Chicago which required its agent at Pittsburg, when it was presented, to give her a proper ticket to return. It alleged also : “That the said agent, at Pittsburg, examined both of said tickets and informed plaintiff that he could not find her ticket for the remaining part of the journey, and afterward informed her that he would' stamp the tickets, and this would be sufficient for her to make such passage and journey; that thereupon he stamped, as plaintiff believed, both of said tickets, and at plaintiff’s request checked her trunk as baggage from Pittsburg to Chicago over the train of defendant.” It is further alleged that she was entitled to be given a proper ticket for her journey, and that she depended wholly upon the advice and information received from the agents of the railway company. Coupled with the averment that plaintiff below was afterward expelled from the train which she had taken on the assurance of the agent that the tickets given to her by him were all-sufficient, there was clearly a breach of the contract to carry, for which the railway company was liable. (Hutch. Carr., 2d ed., §580A) Plaintiff below contracted for her passage from Pittsburg to Chicago, paid the rate charged therefor, and was entitled, on demand of the company’s agent at Pittsburg, to receive a proper ticket, evidencing her right to ride as a passenger on its train. Sufficient evidence was introduced to justify the jury in finding that defendant below had violated its contract to carry plaintiff as stipulated in her ticket. The ticket, a copy of which is set out in the answer of the railway company, provided that the purchaser within twenty-one days after the commencement of [556] her journey could, by presenting the exchange coupon attached to the going part of her ticket, secure a return portion by identifying herself as the original purchaser. The company was bound to furnish a return ticket on demand. Its refusal or neglect was a breach of the contract. The person in charge of the ticket office at Pitts-burg, on presentation of the order for a return ticket, attempted to perform the duty resting on the company toward plaintiff below, and on failure to find a return ticket of the form in common use stamped the order for return passage and checked the holder’s baggage, giving her to understand thereby that she was entitled to ride on the evidence of a right to do so which he furnished her. The judgment of the court below is reversed, and a new trial ordered. All the Justices concurring.