April 25, 1939. The opinion of the Court was delivered by This is the second appeal in this case. See McLeod v.Southern Ry. Co. et al., 188 S.C. 14, 198 S.E., 425.
On the first appeal this Court held that the complaint of the respondent (now the appellant) did not state a cause of action in that it showed on its face that the appellant (now the respondent) had complied fully with any contract which was made by it with respondent (now appellant), but leave was granted to respondent to amend his complaint, if he be so advised.
Paragraphs five and seven of appellant's original complaint were as follows: *Page 239
"That upon communicating with said number and person, the plaintiff was informed that the special car for the Kentucky Derby would leave on the Southern Railway train at 12:45 p. m. on Thursday, May 6th, and would arrive at Louisville on the following morning and would continue there until May 9th for the convenience of those who wished to see the races and that tickets for the races would be furnished."
"That plaintiff and his party, besides being given the railway tickets, were given on Saturday morning tickets marked `General Admission', and upon enquiring of Mr. Romulus Reese about these tickets was told that they were the only kind of tickets furnished, but that they admitted the holders to the grand stand. But when the plaintiff and his party endeavored to go to the races, they found that the tickets merely admitted them to the grounds and not to the grand stand and that no seats on the grand stand, clubhouse or elsewhere, to enable the plaintiff and his party to actually witness the races, were to be had and the plaintiff and his party were unable to see the races and returned without accomplishing the purpose of their trip."
The amended complaint (the complaint now before the Court) contains as added words to said paragraphs five and seven, respectively, the following:
"that it was represented to the plaintiff that the tickets which he purchased included:
"`Transportation to and from Louisville. Private berth entire trip. Lodging while in Louisville. Meals while in transit. Ticket to Kentucky Derby.'"
"that said tickets did not admit the holders to the grand stand or any place which would enable the plaintiff to seethe races and were not therefore tickets to the KentuckyDerby, although plaintiff arrived in ample time for the Derby." (Italics added.)
The delivery of a ticket to the races was at least an implied contract that the ticket would admit appellant to a *Page 240 place where the races could be seen, not necessarily a vantage point, but certainly to a point or place where the races could be seen by him. If the ticket or tickets sold and delivered to appellant did not admit him where he could see the races, and this is what his complaint states, then, in our opinion, a cause of action against respondent has been stated, and the demurrer should have been overruled.
Reversed and remanded.
MR. CHIEF JUSTICE STABLER and MR. JUSTICE FISHBURNE concur.
MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE M.M. MANN dissent.
MR. JUSTICE CARTER did not participate on account of illness.