Wentz v. Erie Railway Co. — 10 N.Y. Sup. Ct. 241

Majority

p. 241

GEORGE H. WENTZ, Plaintiff, v. THE ERIE RAILWAY COMPANY, Defendant.

Headnote

Passenger — Lay-oner ficJcet—right of railroad to limit time of use of-Baggage-master ■—powers of.

This action was brought to recover damages for the wrongful expulsion of the plaintiff from the cars of the defendant, upon his refusal to pay the fare demanded of him by the conductor. The plaintiff claimed that he was entitled to remain by virtue of a lay-over ticket, which provided that it should be used within five days from its date, which time had expired. Before entering the train the plaintiff had his baggage checked by the baggage master, who, at the same time, punctured his ticket. Held (1), that, as the time within which the ticket was to be used had expired, the plaintiff was rightly ejected upon his refusal to pay the fare; (2), that the acts of the baggage master did not constitute any waiver of the terms and conditions of the ticket.

Motion on the part of the defendant for a new trial, on exceptions ordered to be heard in the first instance at General Term.

The plaintiff was ejected from a' passenger train on the defendant’s road by the conductor for refusing to pay his fare. He put his right to remain on the train, on his possession and presentation to the conductor of a lay-over ticket, giving the holder the rights of a passenger, “ if used within five days from date,” which time had expired six days before the transaction complained of occurred. Immediately prior to his going upon the train, the plaintiff presented the ticket to the baggage master at the station, who checked his baggáge and punctured the ticket in the usual way. The judge at the circuit held, that, inasmuch as the baggage master had recognized the ticket as valid by checking the plaintiff’s baggage, on its production to him at the station, the plaintiff was therefore

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rightfully on the train ; and his expulsion by the conductor, on his refusal to pay fare, was wrongful, and entitled him to Recover ; and further, that the only question for the jury was the amount of damages to be awarded. The jury assessed the plaintiff’s damages at fifty-one dollars.

As an excuse for not using the ticket within the time limited for its use, the plaintiff attempted to show that the defendant’s trains did not run, by reason of a strike by their employes; but the evidence made the case, on this branch of it, against the plaintiff. Under the ruling of the court, however, this became unimportant.

Hart & McGuire, for the plaintiff.

JD. O. Robinson and E. F. Babcock, for the defendant.

The defendant had the right to limit the time within which the passenger ticket should be recognized by the conductor as valid. .This is now firmly and finally settled.^[1] The time limited by the. ticket held by the plaintiff, and on which he claimed the right of a passenger, had expired ; therefore, unless such limitation had been duly waived, or the time therein specified had been extended, the plaintiff was subject to the call of the conductor for his fare, and the latter had the right to eject him on his refusal to pay. But it is insisted that the limitation specified on the-face of the ticket was waived by the baggage master’s recognition of it; and that it remained in force at the time of the plaintiff’s expulsion from the train. The learned judge so held at the circuit. This ruling was, as I think, erroneous. The duties devolving upon the baggage master, pertained to baggage only; nor did it appear that he assumed to exercise any other. He did- simply what he was employed to do by the company, and was asked to do by the plaintiff: checked the baggage. With the regulation which required him to puncture the ticket, the plaintiff had no concern. That was a matter wholly between the" employer and the employe. The baggage master had no right to sell or dispense passes or tickets to passengers, or to change or waive the terms, conditions or limitations of such as were issued by those authorized to deliver them. He was a special

* Elmore v. Sands, 54 N. Y., 512 .

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agent. His duties pertained to matters of a special character: those connected with the baggage department.. He had no supervision over passengers. He could neither give nor refuse them any personal lights or privileges as passengers on the train. With the rules and regulations under which the trains were run, and by which passengers were bound while on the train (having no connection with the baggage), he had no concern. Nor were any rights, privileges, rules, or regulations pertaining to the person of passengers, ostensibly within the scope of his duties. There were other officers, whose employment and recognized agencies embraced the performance of duties belonging to those matters. The rule that the apparent authority conferred by a principal upon an agent, will be held to be the real authority as between the principal and those dealing with the agent in good faith, has no application here. The apparent authority of the baggage master extended only to due attention to the baggage of passengers ; nor did he assume to possess or exercise any other. He could not be presumed to have any other powers than those which the nature of the business in which he was engaged, required to be exercised; and those did not extend to the right of the person of passengers on the train. It. follows from these considerations of the case, that the learned judge was in error, in holding that the baggage master might, and in this case did, bind the defendant to a waiver of the limitation specified on the ticket for its use. The plaintiff showed no right to remain on the train without answering the call of the conductor for payment of his fare. On his refusal to pay fare, the conductor could lawfully expel him from the ears. This conclusion necessarily leads to the granting of the motion for a new trial.

The case need not be considered on the plaintiff’s excuse for not using the ticket within the time limited for its use. It is, however, difficult to see, how even a direct refusal by the defendant to carry the plaintiff on the ticket within the time specified thereon, would justify him in remaining on the train at a future time, without answering the conductor’s call for fare. But it is not proposed to discuss that subject here.

Present — Bookes, P. J., Laudos- and Countbyaias, JJ.

New trial granted, with costs to abide the event.