POUII.IN V. 9ANADIAN PAC. BY. CO·
197
there was in that case no question of the rights of a bona fide holder for value. The same is true of the cases of McLellan v. Pile Works, 56 Mich. .582, 23 N. W. Rep. 321, where the court held that the plaintiff had notice of facts from which he ought to have inferred the real character of the paper. The case of Merchants' Nat. Bank v. Detroit Knitting & Corset Works, 68 Mich. 620, 36 N. W. Rep. 696, seems to be based wholly on McLellan v. File Works, and turned on the question of the general authority of the agent signing the acceptance. The statute and its effect are not considered at all. The judgment of the circuit court is reversed, with instructions to order a new trial.
·
POUlLIN
v.
CANADIAN PAC.
Ry.
Co.
(Circuit Court of Appeals, Sixth' Circuit.
October 11, 1892.)
No. 42.
In Error to the Circuit ,Court of the United States for the Eastern District of Michigan. Action on the case by John B. Poulin against the Canadian Pacific Railway Company to recover damages for ejection from a train. The declaration was demurred to on the' ground that it should have sounded in contract. Demurrer overruled. 47 Fed. Rep. 858. Jury instructed to find fot: defendant. Plaintiff brings error. Affirmed. Statement by TAFT, Circuit Judge: Plaintiff was a resident of the city of Toledo, Ohio, and the defendant was a railway corporationorgapized under the laws of the Dominion of Plaintiff Oanada. The facts shown by the evidence were as
1·98
,(i")
Rlll:POR'Tl'mi
voL:5a.:
llppliilihl(QJlt1ll.a:"ti6ket'agelnt of inff the city ticket office in DeDefroit'to Quebecai1dreturn. The ticket agent gave him two tickets, 'tI'llide up of two c6upons leaving the ticket rdffice,plaihtiff went to the station to ticket .agehbh'ad,;dil'lmted him,lirid while there gave one of ,the.tioketsI to,a friend for w4lbm' he, had purchased it. ,In doing so his atten.tioD!lwa& directed :tohis owm,ticket, which led him to think, as he says,,'that;":itwas not eXRctlyright," for he saw that though he had asked for a ticket from Detroit to Quebec, and from Quebec to Detroit, the<.agoot.had made up:of two coupons, each of which purported to entitle him to passage from Detroit to Quebec. He went to the ticket office in the station, and asked the person who was there to excbange the ticket for a-proper one. This person replied that the agent who bad authority to make the exchange was not in, but that he thought the be ,allright,and trnt conductors would understand the mist/ike. Plaintiff took'the train in a few minIlnd by. giving up. the coupon of his ticket obtained utes passage to Quebec, where he visited friends for several weeks. Returning, plaintiff offered the remaining coupon of his ticket to the conductor of the train between Quebec and Montreal, who said it was a mistake but tbat it was all right, and he punched it. ' the train from MOntreal to Toronto. however,another conductor decliried'totl1ketheticket(dn the gronnd that it WIl.S not good, and required plaintiff to pay his fare or leave the train. Plaintiff had not sufand was obliged to leave the train at a ficient money to pay his thence to Montreal, be applied to. the main officesJ of the defendant, where his ticket was exchanged for, a. he then resumed. bisjourney. He suffered because of the delay. It appeared that forbade. conductors to accept such a ticket for passage from Qoebec to Detroit. '1,'he' plaintiff declared. in trespass on the case <iii.the negligence of the ticket agent in selling him ticket. and damages for all its consequences to him. The evidence showing the facts as stated, the court directed the jury to return a verdict for the defendant, because the injury whi(jb plaintiff hads,liffered was the ¢onsequence of his contributory negligence. A writ of error was sued out to the judgment entered'on the verdict, and the assigned was' to the direction of the court. .'r(Jhri,d,ea T·. Wi/kim, for plaintiff. ' F. McMurchy, on brief,) for defendant. Before BROWN, Circuit J nstice, and oJ ACKSON and, TAFT, Circuit Judges.
..
TAFT, Circuit Judge. (ajrd'Btatingthe facts.) Counsel for the defendant contends that the practiCe in Michigan, where the common-hiwform ,of pVocedure :still· obtains, the judgment for defendant should:uot be disturbed; because the gist of plaintiff's action is breach of ,he' has' declared in tort. The objection was raised
POUILIN .iI·. qANADIANPAC·. BY. 00.
199
on demurrer iIi the coun; below, and o'/,erruled. The reasons of the learned district judge· for this ruling are fully set forth in Pouilin v. Rail-way Co., 47 Fed: ,Rep. 8S8.Upon the correctness of the conclusion there .reached we do not express an opinion, because we think that, irrespective,of the form oLaction, the court was right in directing a- verdict for the defendant on the admitted facts of the case. The contract of carriage between the parties was made by the plaintiff with tbecity ticket agent of the defendant at Detroit. . The terms of that contract were that, inconsideration of the fare paid, the. defendant company would give to the plaintiff a token or ticket which, ,upon exhibition to defendant's conducturs, or other agents in charge of defendant's trains, would secure his safe carriage from Detroit to Quebec and back The city ticket ageut committed a breach of the contract by delivering a token or, ticket purporting to entitle the plaintiff to two passages from Detroit to Quebec. The plaintiff had his right of action for all ,the damages· which would naturally flow from such It breach, in:the:contemplation of the parties when the contract was made. It is possible that, if trespass also lies at tbeelection of the plaintiff, themeasureof.damages would be somewhat wider. The question is immaterial here. The plaintiff, before he went aboard the train from which he ejected, discovered that the agent had' made a mistake, and that he had, not delivered to him a ticket which on its face entitled him to return from Quebec to Detroit. The law settled by. the great weight of authority, and but recently declared in a case in this court, (Railway 00. v. Bennett, 50 Fed...Rep. 496, 1 C. C. A. 544,) is that the face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage betweentne.passenger and the company. The reason for this is found in the impossibility of operating railways on any other principle, with a due regard.to the convenience and safety of the· rest· of the traveling public, or the proper security of the company in collecting its fares. The conductor cannot decide from the statement of the passenger what his verbal contract with the ticket agenkwas, in the absence of the counter evidence of the agent. To do so .would take;more time than a conductor can spare in the proper and safe discharge ofhismullifold and important duties, and it would render the company constantly subject to fraud, and consequent loss. The passenger must submit to the inconvenience of either paying his fare or ejection, and rely upon his remedy in damages against the company for the negligent mistake of the ticket agent. There is some conflict among the authorities, but the great weight of them is in favor of the result here stated. BradBhaWN. Railroad, 135 Mass. 407; Townsend v. Railroad, 56 N. Y. 295; .Frederick v. Railroad Co., 37 Mich. 342; Shelton v.Railway, Co., 29 Qhio St. 214; Dietrich v. Railroad 00., 71 Pa.St. 432; Petrie v. Railroad Co., 42 N. J . Law ,449; Railroad 00. v. Griffin, 68 Ill. 499; Hall v. Ra.ilway Co., 15 Fed.. nap. 57; Penni:ngtan v. Railroad Co., 62 Md. 95; Johnaon v. Same, 63 Md. 106; Mechem's Hutch. Car; § 580i. In the opinion of the majority of the court, the plaintiff was bound to know thelaw, and, wheahe discovered that his ticket on its face did
200
, 'FEDERAL REPORTER.
vol 52.
not secure'him carriage from Quebeo to Detroit, he was bound to know that the conductor of the defendant w(luld be justified in refusing to recCould he then inognize it as evidence of his right to such , cur the risk of expulsion from,' the train by taking passage with this 'ticket, and l if expelled, charge his consequent injury and inconvenience t() the mistake of the ticket agent? A majority of theoourt is of opinion that he could not. It matters not whether his faction sounds in tort or"in contract, If in tort, then the rule is that he cannot recover any damages for an injury growing out of the negligentie of the defendant, which, by the use of due care, he might have avoided. If in contract, then it was' his duty to use due diligence to reduce the damages from thebreachjan<l failure to do so prevents recovery for any damages which might by due diligence or care have been avoided. Knowing, as the plaintiff did, that his ticket did not .purport to give him a right to be carried on defendant's train from Quebec to Detroit, and charged, as he WBs:, with the knowledge that this was conclusive evidence of his contrllottothecqnductor, his conduct in getting upon the train at Quebec with! the ticket, was negligence as a. matter of and it was unnecessary to submit the question to the jury. The" plaintiff admittedly sufreredno injury (lr inconvenience before he was put off, the train west of Montreal. " :Theinjury; delay, and other .inconvenience, suffered by him from the ejection, he might have avoided by exercising due care. Therefore, if his right of action sounds in tort, as he has laid it, he was entitled to recover no damages. If his right of action was the breach of the cOntract, as he might have declared it,his damages could only have been nominal. ', "'Much relianee is placed on the fact that plaintiff consulted a person in a ticket office in the station, who told him that the ticket would be all right. and that the conductor wouldaee the mistake. But this person expressly disclaimed any authority to rectify the mistake, by sayiing that who bad 'such authority was not there. It is said, however, thg:t;::without regard'to the person's actual authority, this ciroomstance:0ught 'to 'have been submitted to the jury, as bearing upon the question whether plaintiff acted with ordinary prudence, and counselcitj3s, as authority to the point, a railway crossing accident .case, where it was held proper to submit to the jury, as affecting the question of requi8iOOcaution on the part ·of the plaintiff in approaching the track, the circumstance that he was beckoned to come on by some one who was apparently the gate fiagman,although in fact he was not so. Evans v. Railroad Cb.\(Mich.) 50 N. W. Rep. 386. There is no analogy between the case cited and the orie at bar. The question of the due care of the plaintiff in the accident case depended, of course, upon the seeming situation as it would appear to any. ordinarily prudent man in his position, and, if the man who beckoned had the appearance of a flagman, the plaintiff's oonduct was· reasonably prudent in acting on that appearance, or I at least, the to:thepsetido-flagman was on6 for the jury to consider in deciding: the question' :of, plaintiff's care, or his want of it. But'in thiscaseplainti1lYJmewfroIl!l!his eX:pl1essstatement that the man
paUlLIN V. CANADIAN PAC. RY.
co.
201
in the station office was not the station ticket agent of the defendant, und had no authority to act in regard to the mistake of the city ticket agent. This is not a case, it will be observed, where the terms of the ticket, in order to be understood, had to be read in the light of rules of the company not known to the passenger. Here was' no representation by the ticket agent selling the ticket as to the effect of ambiguous language or signs on its face, on which the passenger might rely, as in the case of Murdock v. Railroad Co., 137 Mass. 293. The language of the ticket was plain, and there was no attempt to vary its meaning by any verbal statement by the ticket agent selling it. If there bad been, a case would be presented which might call for the application of different principhis. Under such circumstances, the passenger would probably have the right to rely on the reprE'sentation by the agent that the ticket was all right, as being, in effect, a statement that the rules of the company permitted conductors to receive a ticket, good on its face for passage from one point to another, as good for passage either way between the points. But here the agent's act in selling the ticket was, as plaintiff himself adInits, a palpable mistake, which plaintiff, when he discovered it, had no right to rely upon as a deliberate representation that the ticket was ,good-for passage from Quebec to Detroit. The proper course for the plaintiff to have pursued would have been to visit tbe city ticket office at Detroit, and have the mistake rectified, or be might before his return have obtained a proper ticket in exchange at the ticket office at Quebec, where he spent several weeks; in either case, holding the company responsible for any damages arising from his delay or inconvenience. The contention of counsel for plaintiff is that, if he had taken this course, the company could have ma.de a complete defense on the ground that plaintiff' had been advised by the man in the station ticket office that the ticket was all right, and that the delay was unnecessary. We cannot agree to this. The legal effect of the mistake in the· ticket would have been full justification for the delay and the opinion of a person with no authority to act in the premises would have been a poor shield for tbe railway company in such an action. The case of Eddy v. Wallace, 49 Fed. Rep. 801, 803, 1 C. C. A. 435, relied on by counsel in tbis connection, was where a passenger jumped off a train on the advice of the brakeman, and was injured. It was left to the jury to say whether, in doing so, be acted with proper care. The fact that the brakeman advised bim to do so was Ii circumstance tending to show that. in jumping, he acted with prudence. Tbe difference between that case and this is that there it was within the brakeman's lawful authority to advise passengers when to alight, while here the advice acted on came from one not only without actual authority, but also without assumed authority. The question is not involved in this case of the rights of a passenger who; relying entirely on tbe ticket agent, does not examine his ticket; and finds the mistake. for the first time when the ticket is presented to the' cona case might present different considerations. ductor. I
lfEDERAl; REJ.>ORTER,
vol. 52.
.:. tha t ohe of defendant's oonductors allowed the ticket -to be ·lllledjqr·:passage.;fmm Quebec. to Montreal does not aid plaintiff. 1'he conductor simply did not follow the rules of the company, and thus saved t,he' plaintiff the greater inconvenience of having to .leave the train before reaching Montreal. Even ,if thecohd'uctor did thereby mislead the plaintiff as to what' subsequent conductors would do with the ticket, itwasrtottoth.e plaintifFs disadvantage. As the conduct of the plaintiff in attempting to ride on a ticket which he knew did not purport to ·givehim a right to do so; was, in our view, neglip;ence, as matter of law, the 18.ctthat a conductor was negligent could not affect the proper standard of due on the partofthe passenger. Dietrich v. Railroad Co., 71 .Pa. St. 4;32. It'follow8 that thel'ewas no error in, th'e charge of the {lOurt verdict fdr,the defendant, :and that the judgment thereon must be affirmed:.
(dissenting.)J; fully coucuJ.!·in the opinion ofthe court, that" as between the plaintiff and the conductor, the ticket m.nst be deemed i conclusive evidence of the contract with the company, and thereforethaitthecol'lductorwas justified in ejecting the plaintiff fflomtbe car.' .I amalso.of the opinion that defendant's agent was guilty of negligence in delivering an improper ticket, and under the Michigan practicel am inclin,d. to think an action upon the case was the proper remedy. : ': . . ,In: determining the .question whether the plaintiff was guilty of con·tributory negligence, it is:pertinent to consider that. he was a teacher of musiojhad.not traveled,muchjthathe purchased his ticket at an u'!'ti?wn. office of. the company, some considerable distance from the station, andthenwentto.the station to take a particular train, and on arriving there ,noticed the .mistake in the ticket. The train was advertised to leave' wi:t4in a ,half or three quarters of an hour, and, having no time to go back to the office .whel'e:be purchased the ticket,:heiasked a man in charge of the ticket office at the station: td exchange the ticket, and was told that the agent was not there, and he could 1'\ot exchange it, but he was would understand the mistake. The very factthM the .company did not have an agent at the station with mistake of this kind is somewhat singular, and prQbably induced the plaintiffto rely upon the statement of the person be found theft"that it was all'right. It .appearsto me immaterial, as ,bearing upon the negligence of the plaintiff, whetherthis1l1an was actually ,an agent. of the; company: or not, though the fact that he was the only pei'Son in the ticket office.just before the departtlre ora train would naturally lead to· the inference that he was the ticket agent.' In judging of the reasonablmeSs of a mauls conduct, the informatiOn upon which he is always pertinent. :In the view I have taken: ,of the case, if he ballrasked liny experienced' railroad man, whether connected with the company or not, the information hE' received would, have' been equally available to him. It is a matter of common knowledge that conductors do sometimes,either tbrb\lgh.inadvertence:or through an imperfect ob-
UNITED STATES V. CHIN QUONG LOOK.
203
SElrvanceof.their own rules by the complmy,accept tickets which have expired,ortake up tickets which are being used in the wrong direction, as wasaotually done by the conductor from Quebec to Montreal intbis case. Such conduct might easily induce· a person of ordinary intelligencElto suppose that the company' waived astrict compliance with the . termsofthe ticket in this particular. The question of negligenCe .depends, too, not wholly upon what was done in a particular case, but somewhat upon tbe age, capacity. and experience of tbe party doing the act. Had. tbe plaintiff been an experienced railroad man, a jury would probably find little difficulty in bolding that he must have known his ticket would not have been accepted; and that he soould have returned to the office of the company, and had tbe mistake corrected. On the other: hand, had he been an ignorant man, wholly unacquainted with traveling and the usages of railroads, a jury would be quite likely to find that he was not guilty of negligence in acting upon the advice of a mnn in charge of the office of the company at the station, and I should have been disposed to uphold a verdict in his favor. The question for the court in every such case is whether tbe· evidence of contributory negligence ie so clear that intelligent men should not differ in their conclusions. This being the test, it seems to me the question in this case should have been submitted to the jury. The opinion of the court seems to· hold that the plaintiff was bound to know, as A matter of law, that his ticket would not have been accepted. This is practically holding that if the agent who sold the ticket,himself bad'told the plaintiff that his tickettthough defective,would be accepted, the plaintiff would still be guilty of contributory negligence in acting upon his advice. It seems tome that this is carrying the maxim concerning ignorance of the law to au unwarranted extent:
UNITED STATES 11. CHIN QUONG
Loox.
(Dt8tr!ct Court, D. Washington, N.·D. August 50, 18112.) CHINESE EXCLUSION ACTS-MERCANTILE DOMICILE.
A Chinaman who formerly resided in the United States, and acquired an Interest in a firm long established and doing business here, although he returned to China, and remained over six years, retaining. his interest in the firm, and receiving his share of the profits, has a "commercial domicile" in the United ,States, and cannot be sent back to China under the exclusion act. Lau Ow Bew v. U. S., 12 Sup. Ct. Rep. 517, 144 U. S. 47, followed. .
At Law. Proceeding to enforce Chinese exclusion act. Appeal from judgment of United States commissioner convicting the defendant of ,being unlawfully in the United States. Reversed, and defendant discharged. p.e. ,SuUimn, Asst. U. S. Atty. W. H· .White and F. Hartley Jones, for defendant.