Opinion
8821
April 23, 1914.
Before CHARLES CARROLL SIMMS, special Judge, Bamberg, November, 1913. Affirmed.
Actions by Fannie G. Driggs and another and by Hubert Driggs, by his guardian ad litem, against the Southern Railway Company — Carolina Division. Judgment for plaintiffs, and defendant appeals.
Messrs. B.L. Abney and Harley Best, for appellant, cite: Lawful tariffs govern irrespective of contract: 202 U.S. 242; 158 U.S. 98; 204 U.S. 426; 119 Ala. 537; 107 N.W. 56; 28 S.E. 601; 39 L.R.A. 275; 40 S.W. 899; 85 N.W. 1001; 43 S.W. 609; 21 S.W. 290; 37 So. 134; 45 So. 983; 94 P. 951; 95 P. 71; 46 So. 1014; 63 S.E. 528; 115 N.Y. Supp. 838; 127 N.W. 543; 94 N.E. 900; 114 P. 469; 133 S.W. 1129; 116 P. 93; 63 So. 882; 5 I.C.C. Reports 241; 99 Va. 394. Carrier not estopped to deny invalid contract: 127 N.W. 543; 94 N.E. 906. No action lies in tort for the misrepresentation or negligence of agent in making a misquotation of a tariff: 202 U.S. 242; 83 S.W. 800; 113 P. 433; 94 N.E. 906; Merwin Equity, sec. 505; Cooley on Torts 247; 91 U.S. 45; 33 Ill. 243. Mistake of law: 12 Pet. 32; 1 Pet. 1; 8 Wheat. 174; 25 Vt. 603; 3 N.Y. 19; 21 P. 534; 41 Ala. 50; 37 Ala. 77; 35 S.W. 643; 223 U.S. 599; Ib. 155; 33 Supp. Ct. 397; 226 U.S. 441; 212 U.S. 504.
Messrs. Mayfield Free and R.C. Hardwick, for respondent, cite: 88 S.C. 424; 69 S.C. 327; 88 S.C. 7; 87 S.C. 184.
April 23, 1914. The opinion of the Court was delivered by
Two cases for tort arising out of the same transaction and tried together, and a verdict in both for the plaintiff.
The plaintiffs bought two mileage books, form Z, at Denmark, one of the Southern and one of the Seaboard, intending to travel thereon from Denmark to Augusta over the Southern Railway: thence to Atlanta over the Georgia Railroad: thence to Chattanooga over the Southern Railway. From Chattanooga, they purposed to go by a short line to Durham on Lookout Mountain. They claim that at Denmark they asked the ticket vendor to tear mileage from that point to Chattanooga over the aforementioned lines, and to issue therefor a ticket. They claim the agent declined to do that, but tore the book to Augusta only, and issued a ticket thereto, and that he then told the plaintiffs that the agent at Augusta would tear the mileage and issue tickets therefor over the aforementioned lines to Atlanta and so on. The plaintiffs claim they bought the books upon that assurance by the ticket seller at Denmark, and that assurance only. At Augusta, all hands admit, the ticket seller declined to tear mileage out the book, and issue a ticket therefor from that point over the Georgia road to Atlanta, and upon the ground that, by the terms of the book and of the interstate passenger tariff No. 5167, the holder of a mileage book, form Z, was not entitled to passage thereon from Augusta to Atlanta. The plaintiffs, on the second day after their arrival in Augusta, had mileage torn from their books, and took tickets in exchange from Augusta over the Charleston Western Carolina to Spartanburg; thence over the Southern to Atlanta; thence over the Southern to Chattanooga. This route was some 140 miles further than that which the plaintiffs had planned to travel, and altogether different.
The gravamen of the plaintiffs' case is that the ticket seller at Denmark sold them books upon the representation that they might pursue a particular route, which turned out to be untrue, and to their hurt.
There is no testimony to show that the railroad agent at Augusta violated his duty to plaintiffs.
There are five exceptions, of which one charges the admission of incompetent testimony, two charge the wrongful refusal to direct a verdict for defendant, and three impute errors in the charge. But all the exceptions hinge on one matter, and it is this: The defendant insists (1) that the ticket seller at Denmark did not make any false representation to the plaintiffs, and (2) if the ticket seller did make such false representation to the plaintiffs, yet the tickets and the passenger tariffs relevant thereto fixed the right of the plaintiffs, and was the evidence in the plaintiffs' hands that they were not entitled to the privilege they demanded, to wit: An exchange ticket at Augusta from Augusta to Atlanta over the Georgia Railroad.
The first matter makes an issue of fact, and was for the jury; the second matter makes an issue of law, and was for the Court.
Nothing else appearing, it is true that a passenger cannot demand a privilege from the carrier contrary to the contract plainly expressed in the ticket or stipulated in the tariffs; and the authorities cited by appellants go only to that extent. But that is not the issue here; the issue here is whether or not the ticket seller may with impunity sell the passenger a mileage book, like the one here, and make to the passenger statements about the route allowed by the book contrary to the route expressed in the book, it may be.
If the expression in the book and tariffs of the route allowable by the book was reasonably plain, there might be some reason for the defendant's contention, though the contention would not then be tenable. But that is not so, and the matter is not even made plain by the defendant's witnesses. The book does provide, "not good locally between stations on Georgia R.R." The Georgia Railroad, running part from Augusta to Atlanta, is a connecting line of the Southern Railway and en route from Charleston via Denmark to Atlanta. Tes. Beach, p. 50, fol. 197. Nobody would presume a run from Augusta to Atlanta would be a "local" run, and prohibited by the words of the book. If the passenger had looked to the book, therefore, for guidance, he would not have found it, but would have been misled. But, had the book been less free from ambiguity, yet when the ticket agent sold them to the plaintiffs, and assured the plaintiffs that they might pursue a certain route thereon, which turned out to be untrue, to the plaintiff's hurt, then the master of the ticket agent is liable in tort to the book-holder who suffers thereby.
The argument in the recent case of Smith v. Railroad, 88 S.C. 425, 70 S.E. 1057, 34 L.R.A. (N.S.) 708, is full to that point.
The exceptions are overruled, and the judgment is affirmed.
MR. CHIEF JUSTICE GARY, and MESSRS. ASSOCIATE JUSTICES WATTS and FRASER concur.
The case of Smith v. Railroad Co., 88 S.C. 425, 70 S.E. 1057, 34 L.R.A. (N.S.) 708, was relied upon in the Circuit Court and in this Court to sustain plaintiff's case. But it seems to have been overlooked that no question of interstate commerce was raised or decided in that case. If it had been alleged and proved in that case, as it was in this, that the mileage ticket in question was sold in accordance with the tariff filed with the interstate commerce commission, and published, as required by the act to regulate commerce, a very different phase would have been presented.
As I understand, it was conceded in the Court below that the ticket was not good over the Georgia Railroad — that is, from Augusta to Atlanta. The Circuit Judge so held and so charged the jury, and, therefore, it is the law of the case. But plaintiff's recovery is sustained on the ground of the misrepresentation of the defendant's agent at Denmark, who sold the ticket, and told plaintiff that it was good over that road, and could be used by her for passage from Augusta to Atlanta. Assuming that the misrepresentation was made, it was as to a matter of law, to wit, the tariff on file with the commission, and the rights of plaintiff thereunder, which the plaintiff was conclusively presumed to know. Therefore, no misrepresentation as to such matter, even if made wilfully, would give rise to a cause of action. The Supreme Court of the United States, whose decisions upon the question are controlling, has expressly so held in numerous cases, some of which are cited in the opinion of this Court in Aldrich v. Railroad Co., 95 S.C. 427, 79 S.E. 316.
I think, therefore, the judgment should be reversed, and the complaint dismissed.
NOTE: This case has been carried on writ of error to the United States Supreme Court.