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APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. FRANCIS ADAMS, Judge, presiding.
WILLIAM E. HUGHES, and WILLIAM BROWN, for appellant:
In the absence of a contract making it responsible, the carrier selling the tickets acts merely as the agent of the other lines, and there is no extra terminal liability. The rights of the passenger and the duty and responsi bilities of the several companies over whose roads he is entitled to passage are the same as if he had purchased a ticket at the office of each company constituting the through line. Railroad Co. v. Connell, 112 Ill. 295; 18 Am. Ry. Cas. 339; 54 Am. Rep. 238; Railroad Co. v. Fahey, 52 Ill. 81; Knight v. Railroad Co. 56 Me. 235; Furstenheim v. Railroad Co. 9 Heisk. 238; Mosher v. Railroad Co. 127 U. S. 390; Railroad Co. v. Sprayberry, 9 Heisk. 852; Hood v. Railroad Co. 22 Conn. 1; Young v. Railroad Co. 115 Pa. St. 112; Hartan v. Railroad Co. 114 Mass. 44; Sprague v. Smith, 29 Vt. 421; Railroad Co. v. Schwarzenberger, 45 Pa. St. 208; Poole v. Railroad Co. 35 Hun, 29; Milnor v. Railroad Co. 59 N. Y. 365; Kessler v. Railroad Co. 61 id. 538; Lundy v. Railroad Co. 66 Cal. 191.
There is a clear distinction between the liability of a carrier receiving freight, or even the baggage of passengers which it takes into its own keeping to be sent over a connecting line, and that of a carrier who sells coupon tickets to be used on its own line and also on a connecting railway. 2 Redfield on Railways, (6th ed.) 201.
The Supreme Court of Illinois, nearly twenty-five years after deciding the Copeland case, (which will be quoted by counsel for plaintiffs,) deliberately adopted the above rule laid down by Redfield, in the case of Pennsylvania Railroad Co. v. Connell, 112 Ill. 295.
If the arrangement existing between the associated lines of carriers amounts to a partnership, each will be liable to the passenger for the loss or injury occurring anywhere along the line of transportation; but the arrangement must be in reality a partnership, with the incident of community of profit. The fact that each sells through tickets will not constitute them partners. 25 Am. & Eng. Ency. of Law, 1087, 1088; Walland v. Elkins, 1 Stark. 272; Laugher v. Pointer, 5 B. & C. 547; Wylde v. Railroad Co. 53 N. Y. 157; Cobb v. Abbott, 14 Pick. 289; Hartan v. Railroad Co. 114 Mass. 44.
We contend that the tickets in controversy, under the great weight of the authorities, were simply vouchers showing that the railroad fare for twenty-five hundred persons had been paid to the two companies whose names appeared on the face of those tickets. Burdick v. People, 149 III. 600; 25 Am. & Eng. Ency. of Law, 1074, 1075, and cases cited in note 1.
JNO. S. COOPER, and IRA C. WOOD, for appellees:
The following are some of the English cases which hold that the through ticket is to be considered in evidence as to whether the contract was a through contract or not, and that there is no distinction between the contract to carry the passenger, as to the length of the route, and the contract for the carriage of his baggage. Mytton v. Railroad Co. 4 H. & N. 615; Railroad Co. v. Blake, 7 id. 987; Buckston v. Railway Co. 3 Q. B. 549; Muschamp v. Railway Co. 8 M. & W. 430; Thomas v. Rymoney, 6 Q. B. 266; John v. Bacon, 5 C. P. (L. R.) 437.
We cite below some of the American cases on the subject: Railroad Co. v. Combs, 70 Ga. 533; Croft v. Railroad Co. 1 McArthur, 492; Railroad Co. v. Copeland, 24 Ill. 332; Wilson v. Railroad Co. 21 Gratt. 654; Candee v. Railroad Co. 21 Wis. 582; Railroad Co. v. Campbell, 36 Ohio St. 647; Hawley v. Screven, 62 Ga. 347; Wolff v. Railroad Co. 68 id. 653; Maskos v. Steamship Co. 11 Fed. Rep. 608; Carter v. Peck, 4
Sneed, 203; Furstenheim v. Railroad Co. 9 Heisk. 239; Weed v. Railroad Co. 9 Wend. 534; Carey v. Railroad Co. 29 Barb. 35; Quimby v. Vanderbilt, 17 N. Y. 306; Williams v. Vanderbilt, 28 id. 217.
Where parties agree to share in the profits of a business, the law will infer a partnership between them in the business to which the agreement refers. But this presumption may be disproved. It is prima facie evidence, and will control until rebutted. Lockwood v. Doane, 107 Ill. 235; Harter v. Wheeler, 49 N. H. 9; Wylde v. Railroad Co. 53 N. Y. 156; Walland v. Elkins, 1 Stark. 272; Fromont v. Coupland, 2 Bing. 170; Bostwick v. Champion, 11 Wend. 571; 18 id. 175; Cobb v. Abbott, 14 Pick. 289.
Railroad companies may become partners in joint carriage. Swift v. Steamship Co. 106 N. Y. 206; Aigen v. Railroad Co. 132 Mass. 423; Gass v. Railroad Co. 99 N. Y. 220; Block v. Railroad Co. 139 Mass. 308; Railroad Co. v. Trippe, 42 Ark. 465; Insurance Co. v. Railroad Co. 104 U. S. 146; Hutchinson on Carriers, sec. 158, et seq.
Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:
Appellees recovered a judgment of $10,854.60 in the circuit court of Cook county, in an action of assumpsit against appellant, for the value of certain coupons for passage over the Lake Erie and Western railway and the Ohio Central railroad, attached to passenger tickets sold by appellant to appellees. From that judgment an appeal was taken by appellant to the Appellate Court, which affirmed the judgment.
The cause was tried before the court without a jury, and at the conclusion of the trial the defendant entered its motion to exclude the evidence for the plaintiffs. This motion was denied, and an exception was taken. The motion was in the nature of a demurrer to the evidence, and that it was proper and in apt time is not questioned. It admitted all that the evidence proved or
tended to prove on the part of the plaintiffs, but if there was no evidence legally tending to prove a cause of action against the defendant it should have been sustained.
The undisputed evidence tended to prove the following facts: Plaintiffs were railroad ticket brokers, having offices in various cities of the United States. In 1880 Mulford had charge of their office in Chicago and McKenzie of the one in St. Louis. In the fall of that year there was what was called a "rate war," in which defendant was engaged, and tickets were being sold from Kansas City, Missouri, to different points on the Lake Erie and Western railway for one dollar. The Wabash Railway Company was selling tickets from Kansas City eastward at nominal rates, thereby taking traffic from the defendant and also from the Lake Erie and Western. Anticipating that the rate war would soon end, the defendant desired, in that event, to be able to compete successfully with other companies, and decided to place large blocks of tickets on the market prior to the anticipated advance of rates. Mulford was in Indianapolis for the purpose of establishing a ticket office there, when an agent of defendant called upon him and proposed a sale of tickets from Kansas City east, stating that defendant would give plaintiffs rates through to Toledo and Sandusky so low, that by adding the local rate they could make a through rate to New York or Boston that would be less than the regular through rate. Thereafter negotiations were carried on, the result of which was that plaintiffs purchased 2500 tickets, for the aggregate sum of $24,957.50, from Kansas City over defendant's road to Bloomington, and from that place over the Lake Erie and Western railway, and a part of them also over the Ohio Central railroad. These tickets were issued by the defendant under an agreement with the Lake Erie and Western Railway Company and by authority from that road. The Lake Erie and Western was given authority by the defendant to sell tickets westward from points
on its road over defendant's road, and defendant was authorized to sell tickets from Kansas City eastward over the Lake Erie and Western. The defendant reported the sale to the Lake Erie and Western, and settled with that company for the proportion of the mileage to which it was entitled under the arrangement. After the purchase of the tickets plaintiffs put them on sale in their offices. The rate war ended in the spring or summer of 1882. Plaintiffs sold the tickets to their customers, and they were received and honored by the respective roads until June 6, 1885, when, the Lake Erie and Western having been placed in the hands of a receiver, he was ordered by the United States court for the Southern District of Illinois, the District of Indiana and the Northern District of Ohio, to refuse to accept for passage over the road any of the tickets in question. Plaintiffs had sold, prior to that time, about 1181 tickets and had on hand about 1319. After the refusal of the receiver of the Lake Erie and Western railway to honor the tickets the coupons for that road became worthless, and those for the Ohio Central could not be used because they were first in order, being attached at the head of the ticket. After that time plaintiffs sold that part of the tickets between Kansas City and Bloomington, and the other coupons were lost to them. In this way they disposed of all the tickets except samples for use in the suit. There was evidence on the part of the defendant that plaintiffs were informed that defendant. was acting by authority of the Lake Erie and Western, and as agent for that company, in the sale of the tickets, and that an assurance of such authority was given at the request of plaintiffs; but this was denied by plaintiffs, and on this motion, being a controverted question, their version of the transaction is to be adopted as to such question, and it is to be considered that they had no such notice.
The question raised by the motion is, whether these facts rendered defendant legally liable for the conse