Daigrepont v. Teche Greyhound Lines Inc.

The court erred in sustaining the general demurrer to the petition as amended.

DECIDED MARCH 8, 1941. REHEARING DENIED MARCH 26, 1941. The substance of the plaintiff's original petition appears in a report of the case upon exception to the overruling of the general demurrer thereto. TecheGreyhound Lines Inc. v. Daigrepont, 60 Ga. App. 389 (3 S.E.2d 857), affirmed on certiorari, 189 Ga. 601 (7 S.E.2d 174, 127 A.L.R. 217). Before the remittitur in the case reached the trial court the plaintiff filed an amendment to the petition, in an effort to prevent the dismissal thereof upon general demurrer. This amendment was allowed and ordered filed, subject to demurrer. The trial court sustained a general demurrer to the petition as amended, and the case is in this court upon exception to the judgment sustaining the demurrer to the amendment. By this amendment the plaintiff struck from the petition the allegations that her ticket was lost or stolen, and substituted in lieu thereof an allegation that somewhere between the bus and the ladies' restroom she lost her ticket and all of her money except fifty cents. It appears from the amendment that the defendant's agent in New Orleans, Louisiana sold to the plaintiff a bus ticket entitling her to transportation from that city to LaGrange, Georgia, which ticket was not issued to the bearer as railroad and bus tickets ordinarily are issued, but was a specific ticket issued and sold to the plaintiff and "especially designated plaintiff sole owner, and LaGrange, Georgia, as her destination, and was not assignable and not good in the hands of any one except plaintiff, and that the ticket plaintiff held was specifically limited to the particular bus upon which the plaintiff was riding from Mobile, Alabama, to LaGrange, Georgia, via Montgomery, Alabama." The plaintiff further alleged in the amendment that at Mobile her ticket had been punched and delivered back to her by the defendant's bus driver at that city to hold as evidence of her right to transportation, and that she held such ticket so punched and cancelled by this bus driver to be delivered to the bus driver at Montgomery as evidence of the purchase by her of a ticket and of her right to transportation to LaGrange. She alleged that this ticket, in its cancelled and punched condition as held by her, could not have been used by any other person. The plaintiff also alleged in this amendment that the portion of such ticket in her possession had been punched, that it was good from Mobile to LaGrange, and that the new bus driver, who boarded the bus in Montgomery and who was to drive the bus on which the plaintiff was riding from Montgomery to LaGrange, had examined this ticket, saw that it had been punched and knew that the plaintiff had a ticket entitling her to transportation on this bus from New Orleans to LaGrange. It further appeared therefrom that the ticket which the plaintiff "held was a restricted ticket, and no one could have used said ticket except plaintiff, and that these restricted conditions were known to defendant, its agents, employees, and bus drivers." It further appeared from the amendment that the new bus driver in Montgomery asked the plaintiff for her ticket and asked her where she was going, and that in the presence of the old bus driver who had driven the bus from Mobile she presented her ticket to the new bus driver and the old bus driver told the new bus driver that he had punched the ticket at Mobile at the time he checked her baggage and gave plaintiff her baggage checks, and that her ticket was good from Mobile, Alabama, to LaGrange, Georgia."

In affirming the decision of this court on the former appearance of this case the Supreme Court stated: "Accordingly, since it is not otherwise alleged, it is proper to assume that the ticket purchased by the plaintiff was issued to bearer; that its use was not limited to that particular bus; and that the portion of the ticket entitling her to transportation from Montgomery to LaGrange had not been punched, and was subject to use by any other person who might present the same. Under such circumstances it is clear that the plaintiff was not entitled to transportation. . . `The reason is obvious. Passage tickets, in the absence of restrictive conditions, are assignable, and good in the hands of any one. If the loss of a ticket were a sufficient excuse for nonpayment of fare, a carrier might be subjected to the burden of carrying two or more persons for a single fare.'" TecheGreyhound Lines Inc. v. Daigrepont, 189 Ga. 601, 603, supra. The court further held that the present case was not "analogous to `sleeping-car cases' where the ticket sold is limited to a particular train and a particular berth." In the amendment to the petition the plaintiff alleged that the ticket which was lost had not been issued to the bearer, but was a specific ticket issued to her and especially designating her as the owner, and LaGrange, Georgia, as her destination, and that such ticket was not assignable and not good in the hands of any one except the plaintiff. The amendment further alleged that the ticket was specifically limited to the particular bus upon which the plaintiff was riding, and that her ticket had been cancelled and punched and was good to LaGrange, and that the driver of the defendant's bus who had punched and cancelled such ticket informed the new bus driver in Montgomery of this fact.

In Buck v. Webb, 58 Hun (N. Y.), 185 (11 N. Y. Supp. 617, 33 N. Y. St. Rep. 824), the following facts appeared: the plaintiff purchased from the defendant's agent a ticket for a seat in the defendant's drawing-room car. Having lost it, he applied to the agent for another. This the agent refused, as the diagram showing the seats for which tickets had been issued was no longer in his possession, but he gave the plaintiff his personal card, on which he wrote and signed a statement that the plaintiff held such seat. The plaintiff presented the card, with the explanation, to the conductor of the car, but the conductor refused to permit the plaintiff to occupy the seat, although it was marked on the diagram as sold, and no other person had claimed it, and the conductor informed the plaintiff that he must pay for a seat or leave the car. Whereupon the plaintiff passed into a common car or day coach and continued there to the end of his journey. The court held that the exclusion of the plaintiff from the seat was unreasonable and that the defendant company was liable in damages sufficient to compensate the plaintiff for the injury. In 4 Michie on Carriers, 3213, § 3554, it is stated: "When a passenger buys a Pullman ticket, and before it is delivered to those in charge of the Pullman car looses [loses] it, he does not thereby loose [lose] his right to a seat or berth to which the purchase of the ticket entitled him. Where such passenger offers sufficient evidence to those in charge of the car of his right to a seat, they have no right to eject him for his refusal to pay again for a berth or seat." In Pullman Palace Car Co. v. Reed, 75 Ill. 125, 130 ( 20 Am. R. 232), the Supreme Court of that State held: "We think the better rule is to require that, where the proof is clear and satisfactory, as it was in the present case, the applicant for the berth has bought his ticket but has lost it, and it is limited to a particular berth and trip, and the circumstances are such that it is reasonably certain the company can not be defrauded by the ticket being in the hands of another, he should have the berth." In East Tennessee, Va. Ga. R. Co. v.King, 88 Ga. 443 (14 S.E. 708), it was held that a passenger on a railroad train is relieved from the obligation of exhibiting or surrendering his ticket where he has purchased a through ticket and surrendered it to the first conductor on his demand, if the second conductor is satisfied of this upon the evidence exhibited by the passenger.

Under the principles above stated it seems that the amendment to the plaintiff's petition takes her case without the general rule applied by this court when the case was here on the overruling of the demurrer to the original petition, and the general rule applied by the Supreme Court in the decision of the case on certiorari. The rule applied in those decisions and laid down by the Supreme Court of Georgia in Harp v. SouthernRy. Co., 119 Ga. 927 (47 S.E. 206, 100 Am. St. Rep. 212), is based upon the premise that the ticket was issued to the bearer and was assignable, and if lost by the passenger would subject the carrier to carrying two persons on one ticket by reason of the fact that the person finding the lost ticket could use it. The amendment in the present case takes it without this rule.

We are therefore of the opinion that the court erred in sustaining the general demurrer to the petition as amended.

Judgment reversed. Felton, J., concurs.