Opinion
No. 33603.
March 27, 1939.
1. CARRIERS.
A conductor has no authority to agree to carry passenger to a particular place and allow him to leave the train at such a place, so as to bind the carrier to a destination not called for in the ticket, and carrier is not liable for violation of such agreement.
2. CARRIERS.
Ordinarily, a special agreement for transportation must be made with the ticket agent, since a conductor has no authority to contract for transportation.
3. CARRIERS.
A bus company is not liable, under practice of discharging and taking on passengers at points other than regular stops, for discharging passenger at wrong point, in absence of affirmative showing that driver thoroughly understood and knew where passenger desired to be discharged, and knowingly or negligently violated special agreement to discharge him there.
4. CARRIERS.
In action against bus company for discharging passenger at wrong point, evidence held to establish honest mistake or misunderstanding by driver, precluding recovery, concerning place where passenger wished to leave, which was outside town named in ticket as destination.
5. TRIAL.
In passenger's action against bus company for breach of special agreement, alleged in the declaration, whereby driver was to let passenger off at a point outside of town named in ticket as destination, passenger's testimony indicating that she expected to be let off in town should be excluded upon motion for variance with the declaration.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
Chandler, Shepherd, Owen Heiskell, of Memphis, Tenn., for appellant.
Appellant's request for a directed verdict at the conclusion of all of the evidence should have been granted for two reasons: (1) The appellant would not be liable for a special agreement between a passenger and the driver of the bus to be put off at some point other than the destination of the ticket; (2) the evidence wholly fails to sustain appellee's allegations to the effect that appellant's driver agreed to put appellee off at some point other than the destination of the ticket.
We submit that the authorities in this state are consistently to the effect that if the conductor of a train or the driver of a bus makes some special agreement or arrangement with a passenger, he is not acting in furtherance of his master's business, but is acting for the passenger.
Wilson v. N.O. N.E.R.R. Co., 68 Miss. 9; Gage v. I.C.R.R. Co., 75 Miss. 17; Sevier v. Vicksburg Meridian R.R. Co., 61 Miss. 8; Sellers v. Cleveland C.C. St. L. Ry. Co., 81 N.E. 1087; Matthews v. Charleston, etc., Ry. Co., 38 S.C. 429.
This court has on numerous occasions held that it was not within the scope of authority of a railway conductor to agree to put a passenger off at some point other than the destination of his ticket, but that such a special contract must be made with the ticket agent of the carrier.
Y. M.V.R.R. Co. v. O'Keefe, 125 Miss. 536, 88 So. 1; Wells v. Ala. Great Southern R.R. Co., 67 Miss. 24.
The evidence in this case shows that the bus was stopped at a rural store near Cruger, purely as an accommodation to the appellee and her brother, and to this extent the appellant had neglected its duty to its other passengers which was to carry them to their ticket destinations without undue delay. If there is any liability on the part of the appellant to the appellee for this act, it would mean that the driver of the bus on all such occasions must stop the bus, go out into the community and satisfy himself positively that the passenger is getting off the bus where he wants to.
Jackson Light Traction Co. v. Taylor, 72 So. 856.
The lower court erred in overruling appellant's objection to and in refusing to strike the testimony of appellee to the effect that she had no special agreement with the bus driver and thought that she was leaving the bus at the destination shown on her ticket, all of which was contrary to the allegations of her declaration.
Wells v. Alabama Great Southern R.R. Co., 67 Miss. 24; Chism Bros. v. Alcorn, 71 Miss. 507; Southern Ry. Co. v. Montgomery, 46 F.2d 990; 13 C.J.S. 1237.
The verdict and judgment is contrary to the overwhelming weight of the evidence.
Chalmers Potter, of Jackson, for appellee.
We most respectfully submit that if the contention of counsel is true, and that is that on a bus of the kind and character involved herein, a contract of carriage between the driver and a passenger is not good, then the declaration is good as a breach of the contract of carriage as evidenced by plaintiff's ticket. The declaration alleges that the plaintiff purchased a ticket from the defendant wherein the defendant contracted to safely transport her from Jackson to Cruger. That notwithstanding this contract that she was put off of the bus at the direction of the driver at a point four miles south of her proper destination. It was this view of the declaration that the court below took and the case was decided on this theory.
Y. M.V.R.R. v. Wade, 162 Miss. 699, 139 So. 403.
We most respectfully submit that in the first place the declaration states a good and valid cause of action because it alleges, first, that plaintiff purchased a ticket from Jackson to Cruger; second, that the defendant put the plaintiff off at a regular stop four miles south of Cruger. We most respectfully submit that this constitutes the statement of a good and valid cause of action against the defendant and if the contention of the defendant is correct and if the ruling of the court below was correct, that is, that the contract to carry beyond Cruger was not a good contract, then certainly these allegations in the declaration should be treated as a surplusage and the allegations that do state a good cause of action remain and the declaration is good. The question of whether the plaintiff voluntarily disembarked was submitted to the jury under proper instructions and the jury found against the defendant on this issue.
In the second place the special contract of carriage under the evidence in this case was good and the court below committed error in holding the defendant was in no event required to carry the plaintiff beyond Cruger. The evidence of the bus driver shows that the bus line in question did not operate as a railroad or even as a street car company, but that it was the known custom of the defendant to pick up passengers and to put them out anywhere along the road that the passengers desired to get on or off.
The judgment is not contrary to overwhelming weight of evidence.
The appellant operates a bus line, and is a common carrier of passengers for hire between Jackson, Mississippi, and Memphis, Tennessee, and particularly through the Town of Cruger in this State, some distance north of Jackson. Appellee, who was accompanied by her brother, Gladney Grey, purchased a ticket from the agent at Jackson to the Town of Cruger for the purpose of going on the bus to that point on a visit to her brother, Ed Grey, who was then critically ill. They had not been to Cruger on any previous occasion, and neither of them knew just where Ed Grey lived, except that the letter which they received informing them of his illness stated, as they remembered its contents, that Ed's home was about one mile north of Cruger. After boarding the bus at Jackson appellee's brother, Gladney Grey, claims to have had a conversation with the bus driver along the route in which he asked him whether he could put them off "one mile north of Cruger, between Cruger and Sidon, at an old store," and informed the bus driver of the purpose of their journey. Thereupon, he was told by the bus driver that he did not know Ed Grey. Then, in an effort to help the bus driver fix the place in mind, Gladney Grey says that he told him that his brother Ed had "five little children, like stair steps," etc. The result was that the bus driver, through some misunderstanding, stopped the bus at an old store, where several small children were often seen by him, but some three or four miles south instead of one mile north of Cruger; and there he let these two passengers off.
Since it is admitted that the bus driver told the witness Gladney Grey in the first instance that he did not know Ed Grey, we think that it necessarily follows that the witness understood thereby that the bus driver did not know where Ed Grey lived, and that he was merely undertaking to locate the place from such description as the witness was able to furnish him, and who had mentioned the old store and the fact that there were five little children about the place. The place at which bus stopped and let these two passengers off corresponded with the description, except that the witness claims to have specified one mile north of Cruger, whereas the bus driver claims to have understood that he was undertaking to describe such a place out from or near Cruger.
It has been repeatedly held in regard to railroads that a conductor is without authority to agree with an individual passenger to carry him to a particular place and allow him to leave the train at such a place, and thus bind the company as to a destination other than called for in the ticket, and that if a conductor makes a promise, or enters into an agreement with a passenger which he is not authorized to make, no liability could attach to the railroad company for the violation of any part of such agreement. Ordinarily, a special agreement for transportation is required to be made with the ticket agent, since a conductor has no authority to contract for transportation. Wilson v. New Orleans N.E.R. Co., 68 Miss. 9, 8 So. 330; Gage v. Illinois C.R. Co., 75 Miss. 17, 21 So. 657; Sevier v. Vicksburg Meridian R. Co., 61 Miss. 8, 48 Am. Rep. 74; Sellers v. Cleveland C.C. St. L.R. Co., 40 Ind. App. 319, 81 N.E. 1087; Pittsburgh C. St. L. Ry. Co. v. Nuzum, 50 Ind. 141, 19 Am. Rep. 703; and Yazoo M.V.R. Co. v. O'Keefe, 125 Miss. 536, 88 So. 1.
However, there may be some force in the argument here made by the appellee to the effect that where bus drivers follow a uniform practice over a long period of time of discharging and taking on passengers at cross-roads or any other point along the route other than regular stops, and such practice is known to the bus company, the authority of the bus driver to make such an agreement with a passenger cannot be denied, but it is unnecessary that we here decide that question for the reason that in any event there could be no liability on the part of the bus company unless it should affirmatively appear that the bus driver thoroughly understood and knew what place the passenger desired to be discharged, and should then knowingly or negligently violate such special agreement let him off at that place. In the case at bar, it is perfectly clear that there was an honest mistake or misunderstanding on the part of the bus driver as to where the appellee desired to leave the bus in question. We are therefore of the opinion that under the particular state of facts testified to the appellee could not recover on an alleged breach of the special agreement declared on in this case.
Neither can the judgment here appealed from be permitted to stand on the testimony of the appellee herself, which is in direct conflict with the alleged special agreement sued on. She testified, contrary to the testimony given by her brother, that she bought her ticket from Jackson to Cruger, boarded the bus and did not say a word to the bus driver anywhere on the route. Moreover, she claimed that her brother told her that neither did he say anything to him; and that she thought that she was being let off the bus at Cruger, the point of destination called for by her ticket. This testimony was in direct conflict with the special agreement alleged in the declaration to have been made by her with the bus driver, and should have been excluded upon the motion of the appellant in that behalf, as being entirely at variance with the facts alleged in the declaration. Wells v. Alabama G.S.R. Co., 67 Miss. 24, 6 So. 737; Chism v. Alcorn, 71 Miss. 506, 507, 15 So. 73; 13 C.J.S., Carriers, section 665, pages 1237, 1238. She failed to amend her declaration when her attention was called to the fact that her testimony constituted an abandonment of the alleged cause of action sued on.
Reversed and judgment here for the appellant.