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is security, and send it to the general office with the ticket, with an explanation, and that, if it was all right, on reaching her destination, at Claremore, she could get her bag. age, and, if it was not all right, she could cail at the station in Claremore and pay the amount of fare and get her baggage; that be endeavored to persuade her to do this, and then left her, and went to the front of the train to finish taking up tickets, and sup posed she would reconsider and pay her fare, though she had positively refused to do so; that be was at the front end of the car when they reached Pacific, and did not see her eare the train, and did not know that she asd her sister had left the train until he sent into the sleeper after the train left Paefe; that he did not direct the porter to see that she got off at Pacific; and that the train porter did not assist her in getting off, and had nothing whatever to do with the Latter. As to this latter statement the conditor is corroborated by the Pullman condoctor, who testified that he told her that, if she intended to get off, this was Pacific, and, opon being informed by her that she intended to get off and take the next train, he and the Pullman porter assisted them off the train, the porter carrying the baggage, and be the little girl; that neither Conductor Gillis por the train porter were present at the time plaintiff left the train; that he refunded or transferred her Pullman ticket, so she would bave the full benefit of it on the next train. The conductor denied that he used any rude or insulting language to the plaintifr. Miss Davis testified that when the controversy was going on between her sister, the plaintiff, and the conductor, she went over to where her sister sat, and her sister said to her, "The conductor says my ticket is no good, and wants to make me pay fare,” and thereupon the conductor turned to witDess and began to explain about scalpers— box expert they had become in fixing up tickets and fooling the conductors—and she said to him, “That is a scalper's ticket?" *He said, 'Yes, madam;' and I says, 'So you say your agent did not sell this ticket to her at Joplin? and he said, 'No, sir; he did not;' ard I said, 'You are not a gentleman, to dispote a lady's word like that.'” She testified that his tone "was just very insulting,” and that in this way he accused her sister of telllag a falsehood. The evidence tended also to show that, under the rules of the company, it was the duty of the conductor to refuse to bonor the ticket, and compel the passenzer to either pay fare, or retire from the train at the next station, and that, if he had Tiolated this rule and accepted the ticket, he could have had to pay for it out of his own pocket. Under the instructions of the court, tbe jury returned the issues in favor of the Ilaintiff, allowing her $125 as damages. Vine of the jurors concurred in this verdict, and three were against it. Other facts may be noted in the course of the opinion.

1. Under the recent decisions of this court in banc, and of both divisions, bad this appeal been taken to or transferred to this court after the decisions in Russell v. Croy, 164 Mo. 69, 63 8. W. 849, and Gabbert, Adm'r, v. C., R. 1. & Pac. Ry. Co., 171 Mo. 84, 70 S. W. 891, in which it was held that the amendments to article 10 of the Constitution by adding thereto two sections, to be known as sections 22 and 23, and to section 28 of article 2, were duly and legally adopted, so far as the publication of the notices of the election and the submission of the same to the qualified voters was concerned, this appeal should be remanded to the St. Louis Court of Appeals, as the sole ground upon which it is transferred to this court is that the amendment to section 28 of article 2, permitting nine jurors in a civil case to make a verdict, was never legally adopted; but inasmuch as the appeal, when taken, fairly raised the constitutional question whether such amendments had in fact become a part of the Constitution, and was taken prior to the settlement of that question by this court in the cases above cited, we will retain the appeal as properly in this court; otherwise we would not. Lee v. Jones (Mo. Sup.) 79 S. W. 927; Carpenter v. Hamilton (Mo. Sup.) 84 S. W. 863.

2. On both sides it is conceded that this action is one sounding in tort, to wit, the wrongful ejection of plaintiff from defendant's train on the night of April 6, 1900, by one of the defendant's conductors in charge thereof. The allegation as to the contract of transportation, to wit, the ticket described in the petition, is matter of inducement, to show that plaintiff was rightfully on the train, and hence that her expulsion was unlawful. Book v. C., B. & Q. R. Co., 75 Mo. App. 604; Ry. Co. v. Reynolds, 55 Ohio St. 370, 45 N. E. 712, 60 Am. St. Rep. 706; Ry. Co. v. Roberts, 91 Ga. 513, 18 S. E. 315.

At the root of the case lies the question whether the ticket which plaintiff offered to the conductor entitled her to passage on the train, or by its terms had expired, and therefore the conductor was justified in demanding fare to Monett, and, upon plaintiff's refusal to pay fare, to require her to leave the train. The question is by no means a new one. It may, we think, be safely stated that the general rule is that when a passenger purchases a ticket for transportation from one point to another over the road of a common carrier, and pays full or regular ordinary fare, the ticket is not intended as a contract itself, but as a mere token or evidence of a contract which the law creates, and which lies behind the ticket. In such case the law makes the contract and reg. ulates the reciprocal rights and duties of both carrier and passenger, and the ticket is a mere token that such contract exists, and under it the passenger is entitled to be carried to and from the points named, without

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regard to time limit printed upon it. Rail- said ticket at the business and ticket office road v. Turner, 100 Tenn. 214, 47 S. W. and depot of the Hot Springs Railroad, in the 223, 43 L. R. A. 140; Potter v. The Majestic, city of Hot Springs, during business hours, 60 Fed. 624, 9 C. C. A. 161, 23 L. R. A. 746, and a reasonable time before the departure note; Watson v. L. & N. R. Co. (Tenn.), 56 of its train for St. Louis, for the purpose of 3. W. 1024, 49 L. R. A. 454.

identifying himself as the original purchaser On the other hand it has been held by of said ticket, and of having the same offia number of the highest courts in the United cially signed, dated, and stamped by said States, including the Supreme Court of the agent, but the Hot Springs Railroad ComUnited States, that when, as in this case, pany failed to have said agent there at any the ticket on its face purports to be a special time between the time when the plaintiff so contract of carriage, and is based upon a presented himself and his ticket and the time valuable consideration (that is to say, sold of departure of the traiņ, whereby, as it was at a reduced rate), then the ticket itself alleged, the Iron Mountain Company and its constitutes a contract of carriage between agent and the agent of the Hot Springs the parties, and the provision limiting the Railroad at Hot Springs, without any just time within which it shall be good, and cause or excuse, failed to identify plaintiff as providing that it shall be stamped as the original purchaser, or to officially sign, of the date when the return passage is date, and stamp said ticket; and the plaincommenced, by the ticket agent at that tiff thereupon boarded the train of the Hot place, and that the holder of the ticket Springs Railroad, and was carried thereby must identify himself or herself to such to Malvern, where on the same day he boardagent as the original purchaser thereof, and ed a regular passenger train of the Iron sign the same in his presence, and the sign- Mountain Company for St. Louis, and, upon ing and attestation must be dated and indi- the conductor demanding his fare, presented cated by punch marks on the ticket, and his ticket, and informed the conductor of that such ticket should only be good for a the failure of the agent at Hot Springs to continuous return passage commenced on that date, is a reasonable regulation, and self, and offered to sign his name and otherbinding upon the holder of such a ticket. wise identify himself to the conductor, and Thus in Mosher v. St. Louis, etc., R. Co., 127 demanded to be carried to St. Louis by virU. S. 390, 8 Sup. Ct. 1324, 32 L. Ed, 249, it tue of his said ticket, but the conductor re appeared that the St. Louis, Iron Mountain fused and put him off the train—it was & Southern Railway Company owned held that the ticket was a valid contract, railroad from St. Louis to Malvern, Ark., and binding upon the holder thereof, and, and the Hot Springs Railroad Company by its express terms, the plaintiff had no owned and operated a railroad from Mal- right to a return passage under the ticket vern to Hot Springs, Ark., and the Iron unless it bore the stamp of the agent at Hot Mountain Company sold a ticket at a re- Springs, and that such a stamp was made duced rate of fare for a passage from St. by the contract a condition precedent to the Louis to Hot Springs and return, and the right of a return passage, and no agent or ticket contained stipulations by which the employé of the defendant was authorized purchaser agreed that in selling the ticket to waive that condition. It was held that, the St. Louis, Iron Mountain & Southern by the first condition of the contract, the Railway Company acted only as agent, and defendant was not responsible beyond its was not responsible beyond its own line, and own line, and was not responsible to plainthat the ticket was good for going passage tiff for failing to have an agent at Hot only five days from the date of sale stamped Springs; that, by the contract, the agent on the back and written below, and would who was to identify plaintiff and stamp his not be good for return passage unless the ticket was the agent of the Hot Springs holder identified himself as the original pur- Railroad Company, and it was the duty of chaser to the satisfaction of the authorized that company to identify plaintiff, and not agent of the Hot Springs Railroad at Hot the defendant; that the conductor of the Springs, Ark., within 85 days from date of defendant's train had no authority to dissale, and, when officially signed and dated pense with the want of such stamp, or to in ink and duly stamped by said agent, the inquire into the previous circumstances. ticket should then be good only five days The rule announced in that case was refrom said date; and it was expressly agreed asserted in Boylan v. Hot Springs Railroad that the purchaser would, whenever called Co., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. upon, identify himself to any conductor or 200; and it was further held that the puragent of the lines over which the ticket read, chaser of a ticket from a railroad company, and that no agent or employé of any of the at a reduced rate of fare, for passage to a lines named in the ticket had any power to certain station and back, containing a conalter, modify, or waive any of the conditions tract, signed by him, that the ticket should named on the ticket; and it appeared that not be good for return passage unless the plaintiff went to Hot Springs, and, with- stamped by the agent of the company at in the time limited by the ticket, desiring to that station, and that no agent of the comreturn to St. Louis, presented himself and pany was authorized to alter or modify any

condition of the contract, was bound by these conditions, whether he knew them or sot, and neither the action of the baggage Daster in punching the ticket and checking the plaintiff's baggage, nor that of the gateman in admitting him to the train, could bind the defendant to carry him, or estop it to deny his right to be carried. To the same effect, see Watson v. L. & N. R. Co. (Tenn.) 36 S. W. 1024, 49 L. R. A. 454; Edwards v. & Co., 81 Mich. 364, 45 N. W. 827, 21 Am. St Rep. 527; Bowers v. Pennsylvania Co. (Ps.) 27 Atl. 893; 4 Elliott on Railroads, s 1543, p. 2484; Pennington v. P., W. & B. R. Co., 62 d. 93; West Md. R. Co. v. Stocksdale, 83 m. 245, 34 Atl. 880, and cases cited; Moses v. R. R., 73 Ga. 356. In the last-cited case the circumstance noted by the plaintiff on this appeal, to wit, that the St. Louis, Sasbrille & Chattanooga Railroad Company accepted plaintiff's ticket on her return, and waited the limitations as to time in the con: tract, was commented on by Chief Justice Jackson, who said: "The ticket passed him over two roads, but each had a right to stand on the contract. If one passed him, the other was not bound thereby to pass him also, in the teeth of the contract he had made." See, also, Dangerfield v. Railway Company (Kan. Sup.) 61 Pac. 405; Comer v. Foley (Ga.) 25 S. E. 671; Abram v. Rail. way Company, 83 Tex. 61, 18 S. W. 321; Rahilly v. Railway Company, 66 Minn. 153, 68 N. W. 853.

It is asserted, however, by the plaintiff in this case that this line of authority is bot the law in this state, and we are cited to YcGinnis v. R. R., 21 MO. App. 399, and to Cherry v. Railway Company, 52 Mo. App. 129, as sustaining this contention. It is evident, however, from the reading of those cases, that neither of them reached the point DOW under discussion. In the Cherry Case the passenger had purchased a first-class passenger ticket, which read, "Good to stop over at all points.” It was held that this Justified the passenger in stopping off at a station short of his destination, and subsequently, within the life of the ticket, taking another train to his destination, and though on his presentation to the conductor of his ticket, with notice of his intention to stop over, the conductor took up the going coupon, and gave no check or token in lieu thereof, the passenger's rights were not affected, and the same conductor, with a knowledge of all the facts, was not justified in ejecting him from the train on his subsequent resumption of his journey. With that case we are entirely satisfied. The passenger had compied with every condition on his part, and had violated no rule of the company, and the sa me conductor who had wrongfully taken up the going coupon without preserving to the passenger any evidence of his right to resume his journey after the stop-over, with a full knowledge of all the facts and a persocal acquaintance with the passenger,

wrongfully ejected him. In the McGinnis Case the passenger held a return ticket, but the date of it was blurred, and the conduct. or was of the opinion that there had been an alteration in the date, and for that reason refused to honor the return coupon; but the ground of recovery was that it turned out that the blurring of the ticket was caused by the defendant's own agent in dating it when he sold it, and the rude and offensive and insulting manner of the conductor in ejecting the plaintiff. That case likewise does not reach the point before us. In Hot Springs Railroad Company v. Deloney, 65 Ark. 177, 45 S. W. 351, 67 Am. St. Rep. 913, the authorities are collected with much industry, and the conclusion reached that the efforts of the court to reconcile the conflicting views as to the right of the conductor, in collecting tickets and fares, to rely entirely upon the face and appearance of a ticket presented to him, in determining his duty as to the acceptance of the same, had not met with any degree of success. In that case it was held that notwithstanding the conductor had only carried out the company's rules and regulations, and that they were reasonable, and he therefore was blameless personally, inasmuch as the company which was sued, through its ticket agent, acting for it, had been guilty of doing that which produced the injury to the plaintiff, it was liable for such neglect, and could not shield itself behind the faithfulness of its servant, the conductor. We think that decision was unquestionably correct, and was but the application of the common-law of principal and agent. In that case the company was rightfully held responsible for the natural and reasonable consequences of the neglect of its own agent. But that case does not reach the question before us—whether the defendant company in this case is responsible for the neglect of the plaintiff to read the contract on her ticket, and in not complying therewith, and the mistake or negligence of the agent of the connecting line at Chickamauga, Ga. It is plain that no such question was involved in the Deloney Case, supra.

We have laboriously gone through the long line of cases cited to us by respondent, and find that in most of them the action was directly against the company whose agent had been guilty of the neglect or negligence which produced the inconvenience and injury to the passenger, or they were cases in which the ticket was apparently regular on its face, and the passenger misled thereby, and various other circumstances in which it was held that the defendant company was liable for the wrongful and negligent acts of its own servants; and, in our opinion, without attempting a review of all those cases or reconciling them, we think they are clearly distinguishable from the facts upon which the case is bottomed, and, in our opinion, the correct doctrine is stated in

Mosher v. Railway, 127 U, S. 390, 8 Sup. Ct. ductor offered the plaintiff any personal vio1324, 32 L. Ed. 249, and Boylan V. Railroad, lence, or that any other servant of the com132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290. pany did. On the contrary, it appears that We think the provisions of the ticket in this the Pullman conductor and his porter rencase were reasonable regulations, and that dered her every assistance that was possible the agent at Ohickamauga had no authority when she left the train. If plaintiff's evito bind the defendant company by waiving dence is to be accepted, her leaving the train any of the contract provisions which inured in obedience to the command of the conductor to the benefit of all the roads which were to the porter to see that she got off at Pacific parties to that contract, and the fact that must be regarded as an ejection from the the other roads waived the conditions in no train, and she very properly avoided the bumanner affected the defendant's rights. By miliation of being forcibly removed from the the terms of the contract, plaintiff was only train. If, however, plaintiff left the train of entitled to a continuous return passage with. her own free will and accord, and against the in the limits of the ticket, commencing on advice of the conductor, and refused to rethe date that she was identified and the main on the train and permit the conductor ticket stamped and punched at Chickamauga to hold her baggage check as security for her for the return passage, and that consequently passage, if the general officers of the comwhen it was presented to the conductor of pany should agree with the conductor that defendant's road on the 6th of April, 1900, her ticket bad expired, or, if they should deit had expired, according to the limitations cide the ticket was good, then she need not plainly printed thereon, and did not entitle pay any other fare, then there was no ejecplaintiff to a passage from St. Louis to Mo- tion from the train within the meaning of the nett, and that the conductor was justified in law, and plaintiff has no cause of action refusing to accept the ticket for passage

whatever against the company. That plainbetween those points. And it is no justifica- tiff suffered no appreciable damages in the tion of plaintiff's insistence that she had not way of delay in reaching her home, or of any read the contract which she had signed. The discomfort by changing from one train to stipulations of the contract were plainly another, is perfectly apparent. printed on the face of the ticket, in a way

From the statement of facts in this case it not calculated to escape observation, and must be apparent that the liability of the de the plaintiff's own evidence shows that she fendant in this case hinges upon the considknew she was receiving a special rate, and

eration whether the agent at Chickamauga went to Joplin for the express purpose of

of the connecting lines was the agent of the getting a ticket for a reduced fare; and, under defendant in this case, by reason of the conthe circumstances, it was her duty to read it tract of carriage over the several lines menwhen she received it, and, in the absence of tioned in the ticket, and what force is to be proof of fraud, imposition or deceit, the law accorded to the clause stipulating that the presumes she had knowledge of its contents, defendant in this case acted simply as agent, and must be held to have assented to the and was not responsible beyond its own line. terms thereof. Snider v. Adams Ex. Co., 63 If the defendant is to be held as agent for all Mo., loc. cit. 383; Watson v. L. & N. R. Co. the other roads over which this ticket reads, (Tenn.) 56 S. W. 1024, 49 L. R. A. 454. Hence then there is much reason and authority for the instruction given for the plaintiff as to holding it liable for the misleading representhe right of the plaintiff to rely upon the tation of the agent at Chickamauga waiving statement made by the agent of the Chat- the agreement that the ticket should be tanooga, Rome & Southern Railroad that she stamped and the passenger identified on the could be identified and have said ticket day of the commencement of the return passtamped on the 22d of March, 1900, and it sage. If, on the other hand, the ticket and would be good for her return passage at a contract therein, properly construed, is the later date, was erroneous.

separate contract of each of the companies But notwithstanding plaintiff had no right over which it reads, and the defendant, in to passage over the defendant's road by vir- issuing the ticket, is to be held only as an tue of said ticket after the same had expired agent of the others, and not responsible for by virtue of its limitations, and the failure of their defaults, then we can discover no legal plaintiff to comply with the provisions of her reason why the defendant should be held recontract with defendant, and while we think sponsible for the misrepresentation of the that when plaintiff was notified of the inva- agent of the connecting line at Chickamauga. lidity of the ticket and refused to pay the Judge Elliott, in his work on Railroads, vol. fare to Monett, the conductor had the right 4, $ 1596, says: "There is some conflict to remove her from the train, he had no right among the authorities upon the subject of to use unnecessary and insulting language to through tickets over several different roads, her, and thereby hurt her feelings and hu- but the rule which is supported both by the miliate her; and, if he did so, she was enti- better reason and by the weight of authority tled to recover compensatory damages for is that, even when the ticket does not exsuch injured feelings and humiliation, but pressly provide that the first company is actnothing in the way of punitory or exemplarying for the other companies merely as their damages. There is no pretense that the con- agent in selling it, the rights of the passenger

concur.

and the duties and responsibilities of the dif- trial by the court requiring the jurors to sign ferent companies are substantially the same the verdict as required by the act of 1901, p.

190. ofice of each company separately, unless The judgment is reversed, and the cause there is something in the contract making the remanded, to be proceeded with in accordfirst company responsible beyond its own ance with the views herein expressed. All Ere" And this statement of the law is supported by the decision of the Supreme Court of the United States in Mosher v. Railroad Cocs any, 127 U. S. 390, 8 Sup. Ct. 1324, 32 L Ed. 249, already noted; and Mr. Hutch- STATE ex rel. GARNER V. MISSOURI & K. inson, in his work on Carriers, 152, in

TELEPHONE CO. dorses this statement of the rule; and to

(Supreme Court of Missouri. June 1, 1905.) the same effect is Railway Co. v. Looney, 85

1. MUNICIPAL CORPORATIONS CHARTERTeI 158, 19 S. W. 1039, 16 L. R. A. 471, 34

TELEPHONE COMPANIES REGULATION OF Am. St. Rep. 787; Harris v. Howe, 74 Tex. TOLLS--DELEGATION OF AUTHORITY. 534, 12 S. W. 224, 5 L. R. A. 777, 15 Am. St. Const. Mo. art. 9, § 16, provides that any Rep. 982; Central Trust Co. v. East Tenn., city having a population of more than 100,000

may frame a charter for its own government, etc., Co. (C. C.) 65 Fed. 332. The only case

"consistent with and subject to the Constitudirectly in point opposing this statement of tion and laws of this state," etc.

The solax is that of Head v. Railway Company, 79 called "Enabling Act" of 1887, providing the Ga 338 7 S. E. 217, 11 Am. St. Rep. 434. In

means for cities to avail themselves of that that case, it is true, the learned and distin

constitutional privilege, provides (Acts 1887, p.

51, § 50; Rev. St. 1899, 8 6408) that such city gished jurist Chief Justice Bleckley, upon a shall have exclusive control over its public highsimilar ticket, held that the agent at New Or- ways, streets, etc. Section 51 (Rev. St. 1899, leass, the point of the destination, was the rep

§ 6409) declares that it shall be lawful for any

such city in such charter, or by amendment resentatire of the selling company, but he en

thereof, to provide for regulating and controlters into no discussion whatever of the prin. ling the exercise by any person or corporation dpile upon which he bases this conclusion; of any public franchise or privilege in any of and profound as is our respect and admira

the streets or public places of such city, wheth

er such franchises or privileges have been tion for that gifted jurist, we think bis con

granted by said city, or by or under the state elcsion is opposed by the great weight of or any other authority. Under such act and autbority and the elementary principles of

constitutional provision, Kansas City in 1889 the law of principal and agency. Moreover,

adopted its charter, literally embodying therein

said two sections. Article 3, § 1, of the charte tbink that the Supreme Court of Georgia ter provides that the city shall have power by eorld have reached the conclusion which it ordinance to regulate the prices to be charged did by applying the doctrine of numerous

by telephone companies, and to compel them cases on this subject, and holding that it was

and all persons and corporations using, con

trolling, or managing electric wires for any pur. clearly the mistake of the selling agent at pose to put and keep their wires under ground, Tallapoosa, in placing the stamp on the and to regulate the manner of doing the same. wrong margin, and in having the passenger

The "general welfare” clause of the charter

authorizes the city to pass any ordinance that sign at the wrong place, and the action in

"may be expedient in maintaining the peace, bat case was properly against the selling order, good government, health and welfare of company for its own default and the damages

the city

or that may be necessary and resulting therefrom.

proper for carrying into effect the provisions

of this charter.' Held that, while the enactOur conclusion is that the agent at Chick

ment by the city of an ordinance fixing the adauga was not the agent of the defendant maximum rate to be charged by telephone comin this case, and that the defendant cannot panies for telephone service in the city was exde beld responsible for his neglect or miscon

pressly authorized by the charter, the state had

not delegated to the city the power to exerstruction of the contract, and that the con- cise such authority in framing its charter, and doctor of the defendant was bound, under the the ordinance was void. rules and regulations of the defendant, to de- 2. SAME. elide to recognize said ticket after it had ex- The regulation of prices to be charged by a Dired according to the contract embodied in

corporation intrusted with a franchise of a pubit. And as already said, we can see no pos

lic utility character is within the sovereign

power of the state granting the franchise or sible ground upon which plaintiff can recover suffering it to be exercised within its borders, of this defendant, save and except that the which power may be conferred on a municipal conductor, in the performance of a perfectly

corporation; but it is not a power appertain

ing to the government of the city, and does not egal right, performed it in a rude or insult- follow as an incident to a grant of power to 09 Ipanner, as to which the evidence is in frame a charter for a city government. trong conflict, and in such case is a question 3. SAME-GRANT OF RIGHTS IN STREET-Pow. of fact for the jury.

ER OF LEGISLATURE. As the judgment of the circuit court must The General Assembly, except as limited

in the Constitution, has jurisdiction to grant te reversed for the reasons above given, it

franchises to be exercised in the streets of the berones unnecessary to decide whether the cities and other public highways in the state. perdiet, in the form in which it was rendered, [Ed. Note.-For cases in point, see vol. 30, would constitute reversible error, as that ob- Cent. Dig. Municipal Corporations, $ 175.) jection can be readily obviated on another Brace, C. J., dissenting.

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