Point Named in Ticket.-Where a passenger's ticket reads to a certain point, he is only entitled to ride upon a train going to and stopping at that point. Beauchamp v. International, etc., R. Čo., 9 Am. & Eng. R. R. Cas. 307.

LUNDY

v.

CENTRAL PACIFIC RAILROAD COMPANY.

(Advance Case, California, December 8, 1884.)

A railroad ticket entitling the purchaser to a continued passage between two given points, if used within a certain time, is good for such continued passage if the same be commenced within the time limited.

Contract for carriage of a passenger construed, and held to be a contract made by another carrier for and by authority of the defendant carrier, and action, therefore, properly brought against defendant for breach thereof.

APPEAL from a judgment of the Superior Court for the city and county of San Francisco, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

W. H. Fifield, for the appellant.

Wilson & Wilson, for the respondent.

THORNTON, J.-The court below, in granting the nonsuit in this case, misconceived the meaning of the contract for passage between the plaintiff and defendant. In our view, it was only required of the plaintiff that he present himself at the cars of the Union Pacific Railroad Company, or of the defendant, and take passage at any time within nine days from the 12th day of March, 1874. The plaintiff took passage on the 21st of the same month, and was illegally ejected from the cars of defendant by its servant, on the morning of the twenty-fifth following.

The admission of defendant showed clearly that the contract for carrying the plaintiff from Omaha to San Francisco, though made by the Union Pacific Railroad Company, was made by authority

of defendant.

We have no doubt that the action was properly brought against the defendant.

We see nothing in the evidence to uphold the ruling of the court below, non-suiting the plaintiff, and the judgment and order denying a new trial are, therefore, reversed and the cause remanded, that a new trial may be had in accordance with the views herein expressed.

Sharpstein, J., and Myrick, J., concurred.

Tickets with Time Limited.-For a full collection of the authorities upon this subject, see Pennington v. Phila. W. & B. R. Co., and note, infra.

Analogous Case.-The case of Auerbach v. New York Central R. R. Co., 6 Am. & Eng. R. R. Cas. 334, is to precisely the same effect as the principal case reported above.

PENNINGTON

v.

PHILADELPHIA, WILMINGTON & BALTIMORE R. R. Co.

(Advance Case, Maryland, July, 1884.)

The plaintiff bought an excursion ticket at a reduced rate, good for a limited time only. He attempted to return on the ticket after the time had expired, and was expelled from the train. Held, that the rights of the plaintiff were limited by the ticket, and that, after being expelled, he had no right to readmittance except upon paying the fare from the starting point.

The appellant purchased from a ticket agent of the appellee a ticket, of which the following is a copy: "Excursion ticketPhila., Wilm. & Balt. R. R. (One continuous passage), Perryman's to Baltimore. In consideration of the reduced rate at which the ticket is sold, it is agreed that it shall be used within three days, including the day of sale, for a continuous trip only, and by such trains as stop regularly at the station, and by its acceptance the purchaser becomes a party to and binds himself to a compliance with these conditions. Geo. A. Dadmund, General Ticket Agent." On the back of the above ticket is the following stamp, to wit: "Phila., Wilm. & Balto. R. R. December 13, 1882. Baltimore." He proceeded in appellee's cars to Perryman's, on December, 13, 1881, and while attempting to return on December 16th, the conductor refused to receive the ticket for his pas sage, and required him to leave the cars. The controversy depends upon the rights acquired by the purchase of the ticket. The plaintiff, at the trial below, offered to prove that before he purchased the ticket he was informed by the agent, upon inquiry from him, that it was good until used.

BRYAN, J.-We think that the plaintiff's rights in this regard are limited by the ticket. There is no evidence in the record that the ticket agent was authorized to make any contracts for the railroad company, or that he had any duties beyond the sale and delivery of the tickets. The ticket purchased by the appellant clearly informed him that he would have no right to use it after the fifteenth, and the agent had no authority to vary its terms.

A passenger has a right to be conveyed in the cars of railroad

companies without making any special contract for transportation. Upon payment of the usual fare, the company is bound to convey him, and is under all the obligations imposed by law on common carriers, so far as they relate to the transportation of him as a passenger. It is competent to vary these obligations by a special agreement on valuable consideration between the passenger and the company. But if the passenger choose to do so, he may stand on his legal rights, and elect to be carried to his destination without making any special contract. The mere purchase of a ticket does not constitute a contract. Before the ordinary liability of the railroad company can be varied, there must be a consent of the passenger founded on valuable consideration. The ticket, ordinarily, is only a token showing that the passenger has paid his fare. But where the ticket is sold at less than the usual rates, on the condition that it shall not be used after a limited time, if the passenger accepts and uses the ticket, he makes a contract with the company according to the terms stated, and the reduction in the fare is the consideration for his contract. It is true he pays his fare before he receives the ticket; but if he has been misled or misinformed by the seller of the ticket as to its terms, he has a right to return the ticket and receive back his money. The railroad company agrees to carry him at the reduced rate upon the conditions stated on the face of his ticket; if he agrees to those terms, the contract is consummated; but he cannot take advantage of the reduction of the rate and reject the terms on which alone the reduction was made. In this case, the plaintiff made the journey to Perryman's under the terms mentioned in the ticket. There was evidence that he did not read the ticket. He used it, and thereby availed himself of the advantage conferred by the diminished rates. He had an ample opportunity to read it if he had chosen to do so. He could not on any principle hold the railroad company to any terms except those stated. If there was a contract, these terms were embraced in it; if there was no contract, he had no right to the reduction in the fare. After availing himself of this reduction, it was too late for him to allege that he did not know on what terms the reduction was made, when he had an ample opportunity of learning them from the ticket in his possession. The plaintiff was required to leave the cars at Black River station, on his journey back to Baltimore from Perryman's. After he had left the cars, and while on the platform, he offered to pay the conductor his fare from that station to Baltimore, but the conductor refused to give him admission to the cars. The plaintiff had already accomplished a portion of the return journey to Baltimore without paying his fare. He clearly was not entitled to be conveyed from Perryman's to Baltimore without paying fare for the whole distance. If he had been carried from Black River station to Baltimore on payment of the fare only from that place,

he would have escaped payment of a portion of the fare, and so in fact he would have accomplished the return trip at a reduced rate. The company was under no obligation to carry him for less than the full rate for the whole distance, and so he was properly excluded from the cars.

Judgment affirmed.

Tickets Available for Limited Time.-When upon its face a ticket is issued available for a limited time only, a passenger cannot claim to ride by virtue of it after the expiration of the time limited. Wentz v. Erie R. Co., 3 Hun, 241; Barker v. Coffin, 31 Barb. 556; Nelson v. Long, 18 Cand. R. Co., 7 Hun, 140; Elmore v. Sands, 54 N. Y. 512; Hill v. Syracuse, B. & N. Y. R. R. Co., 63 N. Y. 101; Johnson v. Concord R. Corp., 46 N. H. 213; Keely v. Boston & Me. R. R. Co., 67 Me. 163; Boston & L. R. Co. v. Proctor, 1 Allen, 267; Briggs v. Grand Trunk R. Co., 24 Upp. Can., Q. B. 510; Pier v. Finch, 24 Barb. 2.4; McClure v. Phila., W. & B. R. Co., 34 Ind. 532; Auerbach v. New York Central R. Co., 3 Am. & Eng, R. R. Cas. 334.

Commutation, Mileage, Return and Excursion Tickets.-This principle applies to commutation tickets. Powell . Pittsburgh, C. & St. L. R. Co., 25 Ohio St. 70.

Mileage Tickets. Lillies v. St. Louis, K. C. & N. R. Co., 64 Mo. 454.

Return Tickets. Farwell v. Grand Trunk R. Co., 15 Upp. Can., C. P. 427. And excursion tickets. State v. Campbell, 37 N. J. L. 309; Howard v. Chicago, St. L. & N. O. R. Co. infra; McRae v. Wilmington & Weldon R. R. Co. infra.

Fact that Passenger has Before Ridden on such Tickets Does not Establish Usage to that Effect.-The fact that the passenger has on other occasions been permitted to ride on an expired ticket, or even upon the particular ticket in question, does not establish a custom of the company to that effect, and so entitle the passenger to transportation. Hill v. Syracuse, B. & N. Y. R. R. Co., 63 N. Y. 101; Stone v. Chicago & N. W. R. Co., 47 Iowa, 82; Sherman v. Chicago & N. W. R. Co., 40 Iowa, 45.

Checking of Baggage.-Nor does the checking of baggage upon such ticket. Wentz Erie R. Co., 3 Hun, (N. Y.) 241.

Acts of Conductors Without Knowledge or Assent of Officers.-Nor does the fact that the conductors of the company have in other instances accepted for passage tickets the limitation of which has expired, constitute evidence of such usage, when such conduct is not shown to have been known by the officers of the company. Johnson v. Concord R, Corp., 46 N. H. 213; Wakefield v. South Boston R. R. Co., 117 Mass. 544; Boice v. Hudson River R. Co., 61 Barb. 611; Dietrich v. Pennsylvania R. Co., 71 Pa. St. 432.

Verbal Declarations of Ticket Agents.-A mere verbal declaration by an agent of the company that a party is entitled to ride upon a ticket the limitation of which has expired, does not entitle him to passage. Boice v. Hudson River R. Co., 61 Barb. 611; McClure v. Phila., W. & B. R. Co., 34 Md. 532; Hall v. Memphis, etc., R. R. Co., 9 Am. & Eng. R. R. Cas. 348. But see Nelson v. Long Island R. Co., 7 Hun, (N. Y.) 140.

Party Being Expelled for Non-Payment of Fare Cannot by Tendering Fare Acquire Right to Passage.-A passenger who is not furnished with a proper ticket and who refuses to pay his fare may be expelled. The conductor may stop the train at any point for that purpose, and if, during or after expulsion, the passenger tenders the fare from that point to his destination, he is not entitled to passage. Stone v. Chicago & N. W. R. Co., 47 Iowa, 82; Davis v. Kansas City, St, J. & C. B. R. Co., 53 Mo. 317.

Nor can he, it seems, when the train has been stopped to expel him, acquire a right to passage by tendering the whole fare from the point at where he originally started. His rights are fixed as soon as the train is stopped. Any other doctrine would put it in the power of a passenger to cause the

train to be stopped to satisfy his whim or caprice. People v. Gillson, 3 Park Cr. Cas. 234; State v. Campbell, 32 N. J. L. 309; O'Brien v. Boston & Worcester R. Corp. 15 Gray, 20; Hibbard v. New York & Erie R. Co., 15 N. Y. 545: Fulton v. Grand Trunk R. Co., 17 Upp. Can. Q. B. 428; Hoffbauer v. D. & N. W. R. Co., 52 Iowa, 342; Nelson v. Long Island R. Co., 7 Hun, (N. Y.) 140; Skillman v. Cincinnati, S. & C. R. R. Co., 13 Am. & Eng. R. R. Cas. 31; Louisville, N. & Gt. S. R. R. Co. v. Harris, 9 Lea. (Tenn.) 180; s. c. 16 Am. & Eng. R. R. Cas. 374.

But this somewhat harsh rule is in recent cases confined strictly to instances where it is evidently proper to enforce it. Where, therefore, the train is stopped at a regular station in accordance with the schedule, and the party is there ejected, he has a clear right to insist upon being carried to his destination if he tenders full fare. O'Brien v. New York Central & H. R. R. Co., 80 N. Y. 236; s. c. 1 Am. & Eng. R. R. Cas. 259.

And where the refusal to pay is not factious or captious on the part of the passenger, but merely arising out of mistake, it is not too late to tender the full fare after the conductor has actually begun the expulsion. Guy v. New York, O. & W. R. Co., 30 Hun, (N. Y.) 399; Garrett v. Louisville & N. R. R. Co., 13 Am. & Eng. R. R. Cas. 416; Louisville, N. & Gt. S. R. Co. v. Harris, 9 Lea. (Tenn.) 180; s. c. 16 Am. & Eng. R. R. Cas. 374; Hayes v. New York Central R. Co. supra; and see Curl v. Chicago, R. I. & P. Ř. Co., 11 Am. & Eng. R. R. Cas. 85; s. c. 16 Am. & Eng. R. R. Cas. 379.

HOWARD

V.

CHICAGO, ST. LOUIS AND NEW ORLEANS RAILROAD COMPANY.

(61 Mississippi Reports, 194.)

A railroad excursion ticket which contains a special contract is conclusive, and advertisements of the tour are inadmissible in evidence to vary its terms.

If such ticket provides that it is exchangeable for another good for the day and train designated in the latter, the holder of the exchange ticket cannot travel on a later train and day.

APPEAL from the Circuit Court of Yalobusha county.

Posters and handbills, advertising "a strictly first-class excursion," over the appellee's railroad to New Orleans on October 25, 1881, stated that passengers could "remain five days in the city,' and added: "Tickets good to return any day and on any regular train for five days," and also these statements: "Tickets on sale by our agents at all prominent stations," and "Fare for the round trip from Water Valley, $6.00." These notices concluded: "For further information, apply to our agents, or address A. B. Pitts, E. W. Burrage, Managers, Gallman, Miss." In the railroad station house at Water Valley, one of the large advertisements was posted. The appellant, relying upon the placard, bought from a storekeeper at Water Valley, Mississippi, a ticket like the following: