321

§ 2624. Special Contracts for Carriage.-Special contracts for carriage may be made, subject to the qualification that they will not bind. the carrier on the one hand, unless made by an authorized agent; nor the passenger on the other hand, where they contain provisions exonerating the carrier from the performance of his public duties, which provisions are contrary to law and to public policy. For instance, an agreement made by a train conductor with a passenger, in known violation of the public arrangements of the company for operating its road, will not be binding upon the company, or afford an action for damages in case it is not carried out by the conductor.3: On the other hand, stipulations exonerating the carrier from the payment of damages accruing through the negligence of himself or his servants, are generally held to be void on grounds of public policy.322 Such a contract may afford ground for an action for damages against the carrier on the footing of a breach of contract, although he might not have been bound to make the contract in the first instance. Special contracts may be made between the carrier and passenger which will superadd to his general liability. Thus, although there is no obligation incumbent on the carrier to transport a person tendering the customary fare upon Sunday, yet an express contract may be made, by virtue of which the carrier will be bound to do so.323 Ordinarily, the carrier would be excused from attempting to land a passenger under circumstances of danger, but if this condition of things is known to the carrier's officer at the time the agreement to transport is made, a failure to do so will afford a cause of action.324 If a passenger has contracted for a particular seat, he can not be compelled to take another,325 and he may take his seat at any time during the journey, and the carrier's agent is not justified in filling his place with another passenger.326

§ 2625. Special Contracts Printed on Commutation Tickets.Passengers riding upon commutation tickets are bound strictly by the terms of the contract embodied in such tickets, and if the contract requires them to produce such tickets whenever requested, they must do so;327 and if by the terms of the contract, the ticket has expired, by

(Pa.) 11; Downs v. New York &c. R. Co., 36 Conn. 287; Ripley v. New Jersey &c. Transp. Co., 31 N. J. L. 388; Crawford v. Cincinnati &c. R. Co., 26 Ohio St. 580; Woodard v. Eastern Counties R. Co., 30 L. J. (M. C.) 196. But see Maples v. New York &c. R. Co., 38 Conn. 557. In Cooper v. London &c. R. Co., L. R. 4 Exch. Div. 88, the plaintiff bought from the defendant company a sea

limitation of time or otherwise, although the number of miles' travel guaranteed by its terms has not been exhausted, the company will not be obliged to afford further transportation upon it.328 A railroad company may by special contract restrict the holders of a certain class of tickets to a special train; but if the ticket is of such a character in its general appearance as to give the holder no notice of this fact, and he has no information of it, the company will not be justified in ejecting the holder of such a ticket from its regular trains.3

§ 2626. Assent of Passenger to Conditions in such Contracts— Theory under which Assent Presumed.-Upon this question there are two theories. One of them is to the substantial effect that where a passenger accepts a ticket containing special conditions or limita

tions, not in themselves unlawful, and has a reasonable opportunity to inform himself of such conditions and limitations, and uses the ticket, he will be conclusively presumed to have assented to them;330 and that this is so, although a blank space is provided on the ticket for the purchaser to sign it, and although his signature is not demanded by the agent selling the ticket. 331 Under this theory, it has been held that a passenger who purchases a ticket having conditions that it is good on date of issue only, and that no stop-over is allowed, plainly and distinctly printed upon its face, is chargeable with notice of such conditions, although he puts the ticket into his pocket without reading it after noticing that there is printing thereon.332 Under this theory it has been held that a ticket for a voyage, purporting to be a contract, containing printed and written folios which cover the greater part of two quarto pages, bearing the signature of the carrier's agent, with a blank space for that of the passenger, charges him with notice of the stipulations; and they are binding on him although he did not read them, or sign the contract, but used the ticket.333

§ 2627. Doctrine that Knowledge of Conditions must be Brought Home to him.-The other theory is that the mere fact that a passenger accepts a general ticket containing special limitations or conditions does not make those limitations or conditions binding upon. him, unless his attention is called to them when he purchases the ticket, or unless a knowledge of them is otherwise specially brought

820 Abram v. Gulf &c. R. Co., 83 Tex. 61; s. c. 11 Rail. & Corp. L. J. 158; 18 S. W. Rep. 321; Fonseca v. Cunard Steamship Co., 153 Mass. 553; s. c. 27 N. E. Rep. 665; Action v. Castle Mail Packets Co., 73 Law T. Rep. (Q. B.) 158; Callaway v. Millett, 15 Ind. App. 366; s. c. 24 Wash. L. Rep. 614; 43 Cent. L. J. 77; 29 Chic. Leg. News 43; 44 N. E. Rep. 198.

231 Abram v. Gulf &c. R. Co., 83 Tex. 61; s. c. 11 Rail. & Corp. L. J. 158; 18 S. W. Rep. 321; Drummond v. Southern &c. Co., 7 Utah 118; s. c. 25 Pac. Rep. 733; Fonseca v. Cunard Steamship Co., 153 Mass. 553; s. c. 27 N. E. Rep. 665.

332 Coombs v. Reg., 4 Can. Exch. 321. Substantially to the same effect, see Hanlon v. Illinois &c. R. Co., 109 Iowa 136; s. c. 80 N. W. Rep. 223 [citing Dryer v. Security &c. Ins. Co., 94 Iowa 471; s. c. 62 N. W. Rep. 798; Schoep v. Bankers' &c. Ins. Co., 104 Iowa 354; s. c. 73

N. W. Rep. 825]. See, also, post, § 3334.

333 Fonseca v. Cunard Steamship Co., 153 Mass. 553; s. c. 27 N. E. Rep. 665; Southern R. Co. v. White, 108 Ga. 201; s. c. 33 S. E. Rep. 952. To the contrary, see The Majestic, 166 U. S. 375; s. c. 41 L. ed. 1039; 29 Chic. Leg. News 281; 17 Sup. Ct. Rep. 597. So, where the conditions subject to which the ticket was sold, were plainly printed on its back, and on the face of it were the words, in small capitals, "For conditions see other side," and one of these conditions was that if the ticket should be lost or mislaid it would not be replaced by the company, it was held that the 'purchaser was bound to know this condition, so that, having lost his ticket and refusing to pay fare, he was rightly ejected from the carrier's vehicle: Cresson v. Philadelphia &c. R. Co., 11 Phila. (Pa.) 597.

home to him.33 Under this theory, where a passage ticket contains limitations of the carrier's liability printed thereon, with a blank space thereunder for the passenger's signature, but the passenger is not requested to sign his name thereto, and does not sign it, and the conditions thereon are not made known to him, there is no contract and no restriction or limitation of the liability of the carrier.335 The doctrine has been carried to the extent of holding that the person purchasing a general ticket will not be bound by special limitations or conditions printed thereon, unless he has actual notice thereof and assents thereto.336 In other words, there must be a contract between the parties-a meeting of minds, and this contract must be based upon a consideration deemed valuable in law, or else the alternative must be presented to the passenger of purchasing a full and unlimited ticket. 337 Under this theory, a notice on the back of a steamship contract ticket, which was not referred to in terms or by reference on the back of the ticket, although there was conspicuously printed thereon the words "See back," was not a part of the contract, so as to make the conditions of the notice, whether in respect to the amount of liability for baggage or otherwise, binding on the passenger whose attention is not called to the notice.338

§ 2628. Waiver of Conditions in Passage Tickets.-The conditions in a passage ticket may of course be waived by any authorized

334 Kansas City &c. R. Co. v. Rodebaugh, 38 Kan. 45; s. c. 15 Pac. Rep. 899; Kent v. Baltimore &c. R. Co., 45 Ohio St. 284; s. c. 10 West. Rep. 459; 12 N. E. Rep. 798; The Majestic, 166 U. S. 375; s. c. 41 L. ed. 1039; 29 Chic. Leg. News 281; 17 Sup. Ct. Rep. 597; Louisville &c. R. Co. v. Turner, 100 Tenn. 213; s. c. 47 S. W. Rep. 223; Potter v. The Majestic, 20 U. S. App. 503; s. c. 60 Fed. Rep. 624; 9 C. C. A. 161; 23 L. R. A. 746, note; Cole v. Goodwin, 19 Wend. (N. Y.) 251; s. c. 32 Am. Dec. 505 and notes; Rawson v. Pennsylvania R. Co., 48 N. Y. 212; s. c. 8 Am. Rep. 545; Michigan &c. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. (U. S.) 330; s. c. 21 L. ed. 303. For a corresponding theory as to special contracts in telegraph message blanks, see Vol. II. § 2419.

335 Kansas City &c. R. Co. v. Rodebaugh, 38 Kan. 45; s. c. 15 Pac. Rep. 899.

338 Louisville &c. R. Co. v. Turner, 100 Tenn. 213; s. c. 47 S. W. Rep. 223; 43 L. R. A. 140.

337 Louisville &c. R. Co. v. Turner, supra.

338 The Majestic, 166 U. S. 375; s. c. 41 L. ed. 1039; 29 Chic. Leg. News 281; 17 Sup. Ct. Rep. 597. Where a ticket contained a limitation as to the time within which it might be used and a blank place for the signature of the purchaser, it was held to be, prima facie, an unlimited ticket, since the assent of the purchaser to its provision did not appear in the appropriate way. In such a case it was held to be the duty of the conductor of the company, the ticket being presented after the time limited by the punch marks, to disregard them, where the passenger claimed, in apparent good faith, to have purchased it as an unlimited ticket, and to have been without any previous knowledge that it was limited as to time; and accordingly the company was held liable in damages for the refusal of its conductor to honor the ticket, and for his subsequent ejection of the passenger: Walker v. Price, 9 Kan. App. 720; s. c. 59 Pac. Rep. 1102.

officer or agent of the carrier,339 and such waiver need not be in writing, even where it relates to the condition that the passenger must identify himself and have his ticket stamped by an agent at a particular place. 340 Such waiver may, it seems, be made by the conductor, whose duty it is to decide on the spot whether the holder of the ticket is or is not to ride thereon.31 A provision in the going coupon of a round-trip ticket that it shall be void if detached, is waived where it is detached by accident, or through no fault of the passenger, who presents both coupons to the conductor, on his going trip, with an explanation as to the severance, and the conductor accepts the ticket, taking one of the coupons.342 After the waiver of any condition in the ticket, by reason of which the carrier might have refused to carry the passenger, the passenger will be entitled to his full rights as a passenger. Thus, where a passenger in good faith presents to the conductor a non-transferable ticket, without any attempt to conceal his identity, and his right to a carriage thereon is recognized by the conductor, he will be entitled to a safe carriage and to a place to alight.343 The condition in a round-trip excursion ticket that it can be used only by the original purchaser, is not waived by reason of the fact that when presented by a person who has bought the return portion of it from a ticket broker, the first conductor accepts it, where the second conductor to whom it is presented discovers the fraud, and, the holder refusing to pay fare, ejects him. An express agreement between the carrier and the passenger embodied in a mileage ticket, that the holder will not be allowed to ride on freight trains, will not be released by a subsequent advertisement of the railway company, announcing that passengers "with tickets" may ride on freight trains.345 The following

344

339 Randall v. New Orleans &c. R. Co., 45 La. An. 778; s. c. 13 South. Rep. 166; Taylor v. Seaboard &c. R. Co., 99 N. C. 185; s. c. 6 Am. St. Rep. 509; 5 S. E. Rep. 750; Pennsylvania Co. v. Bray, 125 Ind. 229; s. c. 25 N. E. Rep. 439; Robostelli v. New York &c. R. Co., 33 Fed. Rep. 796.

240 Taylor v. Seaboard &c. R. Co., 99 N. C. 185; s. c. 6 Am. St. Rep. 509; 5 S. E. Rep. 750. Contra, Mosher v. St. Louis &c. R. Co., 127 U. S. 390; s. c. 32 L. ed. 349.

341 The conductor's objection to a ticket tendered by a passenger that it was a scalper's ticket, was some evidence tending to show that the company waived the other objections to it: Iseman v. South Carolina &c. R. Co., 52 S. C. 556; s. c. 11 Am. & Eng. Rail. Cas. (N. S.) 219;

30 S. E. Rep. 488. It has been held that where a person purchases a ticket for one continuous trip and by mistake takes the wrong train, and the conductor suffers him to proceed thereon, but afterwards he gets off at an intermediate station and waits for his proper train, his expulsion from the latter train will be wrongful, and he will be entitled to recover damages because of it: Kellett v. Chicago &c. R. Co., 22 Mo. App. 356; s. c. 4 West. Rep. 828.

242 Pennsylvania Co. v. Bray, 125 Ind. 229; s. c. 25 N. E. Rep. 439.

343 Robostelli v. New York &c. R. Co., 33 Fed. Rep. 796.

344 Dangerfield v. Atchison &c. R. Co. (Kan.), 61 Pac. Rep. 405.

345 Dunlap v. Northern &c. R. Co., 35 Minn. 203.