Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-08-08
RAILROAD RIGHTS.
rupoxrANr OPINION orrHE SUPREME
couRrox ooxNurATIoH.
TICKETS
The Holder Of sueh Special Ticket M"
Conform to the Conditions Se-
eiEea UpOa It's Face

I.',s. rsnn,l.,oy At NC July session
=, 10 snp,eme Coart OF Appeals Of
y,,sni,. held a wytbe,ille, will be
,ena with interest by the general pub
lie;
Noyfcik ard Eesfrn Railroad Com
pahy -. Vysor.
qhis is writof error 81 Judgment
Of he Circuit Court Of Wythe county,
,.setred on the 26ih day Of Septem-
h.r. 1888, in q suit therein depending,
IN which II. O. wysor is plaintiff and
the Nci folk and Western Railroad Com
psny Is defendant.
The suit is q co,nmon-law action OF
tregpsss on the case for damages for the
rIceed violation by the defendant COM
p.ny Of It's special contrsct with the
plaintiff. embodied in the terms and
conditions of what is called "com-
mutation ticket" and entitled on its
face "No. lGl. Norfolk and Western
Rsirosd COMPANY. $500 Mile Ticket.
Form G. Good over the Norfolk
and Western Railroad and all Di-
visions and Shensndoah-Vallcy Rail-
road" There is general de-
murrer 10 the declaration, which
was ovsrrulcd by the Court. The de-
cl.raiion sets out . special contract,
made By the plaintiff with the defend
Ant FOR the transportation OF the
plaintiff over the roads Of the defend
ant At rate greatly less than the regu-
lar passenger fare. To show his rights
as passenger, and the defendants du-
ties 10 him as such. the plaintiff sets
cut in his declaration the special con-
tIsct Of carriage as contained IN his
said commutaticn-ticket. This said
copirect contains and expresses certain
conditions and stipulations, with the
reservation Of distinct rights 10 the CON-
rsry. which the plaintiff accepted by q
viiiipg signed by him "in considera-
ION az the reduced rates at which the
teket was sold to him." These said
conditions and stipulstious, thus dis
freely set out in the contract itself,
are folly and particularly explained in
The Instruction, TO conductors
which are tt,nied in the ticket, and to
which the sDtion Of the plaintiff was
specially called before he signed aud
accented the contract OF which they
are Part and parcel, and which when
read sdmit Of no doubt or question as
n What was the intent Of the parties
wfsn the contract was entered into as
10 ihs node in which i. was to be per-
fern Cd.
rs entitle the plaintiff to recover in
tlis action for sn alleged violation OF
this contract be must aver in bis decla-
Ia'iin. Gnd prove, ;hat he had faithfully
rerio,mtd his pert OF the contract, or
Va wiling and ready TO perform 1t,
hul Vas prevent by the failure or in
ability If the r. liroad company TO per-
finn It on thei' part.
he declaration nowhere alleges,
iveIs. or pJeteDds that the plaintiff had
complied with the terms Of the contract
trG reformed what was required of
BIN but the averments Of his declars-
ton show that be had wilfully and de-
hbeIately violated both the letter and
Fr;rit Of the contract, and had assumed
such an attitude towards the defendant
railroad company and its servants as to
prevent entirely the performance of the
contract between him and the company
~ il was intended sDd agreed. The
contract is entire, aud it must be
construed as whole. To strike
out tie conditions and stipulations
which constitute the consideration or
irdueement 10 the company to enter
into the special contract TO carry the
Plaintiff alta reduced rste-only little
more than one half Of their regular
fare-xould be to destroy the contract
AID deprive il OF its character as q spe-
ciel contract differing from that i'm
Piled in the regul.r tickets sold By tie
compsnv. md which the law makes in
favor Of every passenger who gets upon
tie train and pays his full passenger
fire.
For the foregoing reasons the demur-
Ier 20 the declaration should have been
sustained.
But The declaration is demurrable on
the ground Of miSjoinder Of actions.
Tie first and second counts are sx
contraetu, the third and last count is
tr delieto-for violent, wilful, aud
malicious assault and battery.
"Actious IN tort cannot be Joined
with causes arising out Of contract."--
". Minors Inst, Part l., page 366.
The consequences Of misJoinder OF
counts or causes Of action are more
material than in case Of single count
berg defective for, in the case of mis-
juinoer. however perfect the counts may
respectively be in themselves, the decla-
rallon will 10 bad on general demurrer,
buI not under our statute Of .JeO fails,
Code 1873, chapter III, section - on
motion in arrest of Judgment or writ of
error. unless a demurrer had been put IN
n a orerTuled." q. Chitty's Plesdings,
rfee 236l-IT. Mia9r's Institutes Part
J page 3G7; tWomaek cS. Circle,
.tih Grattsn, page i95
he counsel for the plaintiff In error
waived tho demurrer. and requested this
Court to decide his case upon the facts
in the record EBd the law applicable to
the facts.
IL appears from the evidence that d.
&. WysoT. the defendant in error, who
is he plaintiff IN this suit, on tue 3Oth
dsy Of June. 1854, got upon the tram
o. he defendant company at Dublin, IN
Pulaski county, TO go to Central depot,
distance Of eight miles; that he was
tie owner Of OBSERVATION-DISCLOSURES.
mile Communication ticket or book, Is
sued to him by the said company, num-
bsIed l6l, containing the following
"eonditions": "0nly the two per-
sops ramed in this contract are en-
n,led 10 use the coupons herein. Item
titles the authorized holder to travel to
the extent Of the miles Indicated on the
regular passenger trains, provided al
vsys that he enters or leaves said trains
q, the regular stations of the company,
SIS appears IN its published schedules,
at points at which it takes or leaves
other passengers. The usual smounto
locked personal baggage" &C., &c.
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