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V. Limitation.

tive, and hence a fee is created in Mary E.

Johnson. The defendant introduced evidence showing that he and his grantors claiming through

It is well established that to create an esand under the warranty deed made by Mary tate of freehold or inheritance, to commence E. Johnson and Thomas Johnson to Robert in the future, it is necessary that the right to L. Searce on June 6, 1881, have been in the the future estate conveyed vest in the grantee actual, open, adverse, exclusive, and continu- upon the execution delivery of the deed. ous possession of the land in controversy for We so held in Aldridge v. Aldridge, 202 Mo. a period of more than 16 years, cultivating 565, 101 S. W. 42, in construing the statute same as a farm. This evidence was admissi- (section 2876, R. S. 1909) which provides that ble under their general denial. Stocker v. “an estate of freehold or of inheritance may Green, 94 Mo. 280, 7 S. W. 279, 4 Am. St. be made to commence in the future by deed Rep. 382; Coleman V. Drane, 116 Mo. 387, in like manner as by will." loc. cit. 391, 22 S. W. 801. Plaintiffs made At the time of the execution and delivery. no effort to rebut or discredit this evidence of the deed in question Thomas Johnson was in any way; they tried the case on the theory living; consequently he could have no heirs, that Mary E. Johnson held only a life estate, and no estate could, therefore, vest in them, and therefore the statute of limitation would If this conclusion is not correct as an elemennot begin to run against them as remainder- tary proposition, then the uniformly accepted men until her death in 1909. We find that definition of the word "heir" as “one on the plaintiffs were mistaken in that view. whom the law casts an estate upon the death

Mary E. Johnson was a tenant in common of the ancestor" (Desloge v. Tucker, 196 Mo. with plaintiffs, and the statutes of limitation loc. cit. 599, 94 S. W. 283) must go for naught. began to run against all of them as soon as There is nothing in the court's rulings in Mary E. Johnson and her husband executed Buxton v. Kroeger, 219 Mo. 224, 117 S. W. the warranty deed to Searce and the latter 1147, or in O'Day v. Meadows, 194 Mo. 588, placed the same of record and took posses-92 S. W. 637, 112 Am. St. Rep. 542, or in sion. Hendricks v. Musgrove et al., 183 Mo. Christ v. Kuehne, 172 Mo. 118, 72 S. W. 537, 300, loc. cit. 311, 81 S. W. 1265; 38 Cyc. 34. which militates against the conclusion reachThe children of Thomas Johnson all attained ed here as to the necessity in the creation their majority more than 10 years before of an estate of its vesting in præsenti upon this suit was instituted; consequently their the execution and delivery of the deed. In rights are barred by the adverse possession each of these cases the facts clearly show of defendant and his grantors. If coverture that the estates there in controversy vested or any other matter could have been inter- upon the execution of the instruments conposed to toll the statute as to part of plain-strued. Whatever may have been said, theretiffs, no effort was made to do so, and we will fore, especially in O'Day v. Meadows, supra, decide the case on the issues presented below. in construing section 2876, R. S. 1909, as to

The judgment is for the right party and the validity of instruments creating estates will be affirmed.

of freehold in the future without the creation It is so ordered.

at the same time and in the same instruments

of a particular estate to support them, can LAMM, C. J., concurs. GRAVES, WALK- have no application here. ER, and FARIS, JJ., concur in result for rea- Under the rule above announced as to the sons stated in opinion filed by WALKER, J. vesting of estates in præsenti, there is no BOND and WOODSON, JJ., dissent. lack of authority that where a deed is at

tempted to be made to the heirs of one living WALKER, J. I concur in the conclusion that the same is void for uncertainty. Bookreached in the majority opinion that the judg- er v. Tarwater, 138 Ind. 385, 395, 37 N. E. ment of the trial court should be affirmed, but | 979; Hall v. Leonard, 18 Mass. (1 Pick.) 27 ; not alone on the ground of the bar of the stat. Morris v. Stephens, 46 Pa. 200. In the ute of limitations. I admit that generally all Booker Case, supra, the grantees named were the words of a conveyance should, if possible, "Francis Carrico's heirs"; in the Hall Case, be so construed as to give full effect to the supra, they were "the heirs of Ephraim Leonintention of the grantor as therein expressed; | ard"; and in the Morris Case, supra, "the but this rule should not be invoked at the heirs of my son Andrew." In each of these expense of the context of the instrument and cases the fathers of the heirs referred to in violation of the reasonable rules of inter- were living at the time of the execution of pretation.

the deeds, which were held, in consequence The vexed words here are, “and the heirs of said fact, to be void. No case has been of Thomas Johnson." These words are sus- found to support a grant to a man's heirs, he ceptible of three constructions: First, that being living at the time of the grant. Hall they create tenancies in common in Mary E. v. Leonard, 1 Pick. (Mass.) 27. Johnson and the heirs of Thomas Johnson; In the light of these well-reasoned author" or, second, that they create a life estate in ities, it cannot be held that tenancies in Mary E. Johnson with remainder over in the common are created in Mary E. Johnson and said heirs; or, third, that they are inopera- | the heirs of Thomas Johnson.

A tenancy in common not having been than that said deed created an estate in fee created by the deed, can its language be so in Mary E. Johnson and that the words "and construed, in harmony with well-established the heirs of Thomas Johnson" are, for the principles, as to create a life estate in Mary various reasons stated, ineffectual, void for E. Johnson, with remainder over in the heirs uncertainty (Hall v. Leonard, supra; 2 Devreferred to? In approaching this question it | lin Deeds, $ 846c, and notes) and therefore seems to necessarily follow from the reason- meaningless. ing employed in the rulings as to the first Notwithstanding what seems to us to be inquiry that its solution likewise solves the a well-sustained conclusion as to the interquestion as to the nonexistence of a life es-pretation of the deed in question, it is held tate. Sic, if no estate vested in the heirs of in the majority opinion that the word "heirs” Thomas Johnson, then, from the very terms should be construed as "children,” whereby of the deed, which are general and uncondi- the grantees become tenants in common. The tional, a fee was created in Mary E. Green v. language of the deed is not such that the Sutton, 50 Mo. 186, 192. But let us view it word "heirs” can be properly construed as from another vantage. Ordinarily a life es- meaning "children” so as to authorize such tate is created by words of express limitation, a construction of the deed as it is claimed and such an estate will not be assumed unless would follow the use of the last-mentioned there are such words or their equivalents. word.

In deeds, as in devises, express words are While in Rines v. Mansfield, 96 Mo. 394, 9 not necessary to create a life estate, but the S. W. 798, the court ruled conversely in repurpose so to do must clearly appear from gard to the special words referred to, and the entire instrument. Cross V. Hoch, 149 held that the word "children" in the granting Mo. 325, 50 S. W. 786; Lewis v. Pitman, 101 clause of a deed meant "heirs,” the reason Mo. 281, 14 S. W. 52. The construction of stated for this holding was that it was "a the deed in question is not hindered by the construction forced by the habendum clause." employment of different terms or forms of ex- Tygard v. Hartwell, 204 Mo. loc. cit. 206, 102 pression, for in the granting, holding, and S. W. 989. From this it will be seen that it warranting clauses we find the same lan- was only due to the language of the deed in guage. Taking the deed as a whole, there that particular case that the substituted use fore, we have simply to determine whether of one of these words for the other was there the language used is sufficient to create a authorized. life estate with remainders over. That the Parenthetically, it is pertinent to state in words used do not expressly, or by clear im- this connection that in its general holding plication, create a life estate in Mary E. the Rines Case is an authority for the conJohnson is evident, and as much is admitted struction we have placed upon the deed in the by appellants, who nevertheless contend, in instant case. To illustrate, in the latter case, effect, that the terms employed create an the deed being to “Mary E. Johnson and the estate tail which, under our statute (section heirs of Thomas Johnson," we hold that the 2872, R. S. 1909), is converted into a life es grantee named took the fee, while in the tate in Mary E. Johnson, with remainder in Rines Case, the granting clause being to fee to the heirs of Thomas Johnson. Briefly, “M- her children and assigns," and the an estate tail is an estate of inheritance, de habendum and warranty clauses to “Mscending not to heirs generally, but to the her heirs and assigns,” it was held that heirs of the grantee's body. In the creation "M—" took the fee, and not as tenant in of this estate, therefore, it is necessary to common with her children. employ words of inheritance as well as of In Roberts v..Crume, 173 Mo. loc. cit. 580, procreation. Tygard v. Hartwell, 204 Mo. 73 S. W. 662, supra, the testator devised his 200, 207, 102 S. W. 989; Summet v. City Rea. real estate to "his daughter and to her heirs," & Bro. Co., 208 Mo. 501, 106 S. W. 614.

and the court held that the word "heirs" in Our reports are replete with much learning that connection could not be construed to as to the origin, development, and destruction mean "children,” but was used in the same by statute of this character of estate, com- sense as if the gift had been made by deed, mencing with the case of Farrar v. Christy, and that the will devised the fee, and not a 24 Mo. loc. cit. 468, down through many life estate, to the daughter. We quote the cases, not necessary to be cited here, to rulings in these cases that the reasons for the Tygard v. Hartwell, supra, and Gray v. general rule to be deduced therefrom may apWard, 234 Mo. 291, 297, 136 S. W. 405. An ex- pear; it is, in effect, as follows: That the amination of the terms creating the estate in word "heirs" will not be construed to mean each of these, discloses that words of inheri- "children,” except when it is necessary to tance as well as procreation have uniformly carry out the clear intention of the testator; been used. No estate for life with remainder and where an estate in fee has been created, over having been created by the language as we contend was done in the instant case, used in the deed in question, and the neces- it will not be cut down or limited by a subsary words being absent to create an estate sequent clause, unless the words of limitatail

, and the said deed containing all the es- tion are as clear and decisive as the principal sentials to the creation of a fee-simple title, language which effects the conveyance of the there is no room for any conclusion other real estate.

Taking into consideration, therefore, the freight car contrary to the contract, was not unequivocal language of the deed under con- a passenger and could not recover for injuries sideration, and the utter absence of any

occasioned by an unusually hard coupling. words of limitation, which, considering the Cent. Dig. AS 984-993; Dec. Dig. $ 247.*]

[Ed. Note. For other cases, see Carriers, circumstances, can have any binding effect, 7. CARRIERS (§ 254*) —CARRIAGE OF PASSENwe are of the opinion that in this case the GERS-CONTRACTS-CONSTRUCTION. word "heirs" cannot properly be construed That a contract between a railroad comto mean "children." This conclusion is in pany and a shipper of household goods and live accord with the reasoning of this court in stock does not avoid other provisions of the con

stock required the shipper to feed and water the Tygard v. Hartwell, supra.

tract requiring the shipper or drover to ride in From all of which it follows that the judg- the caboose at all times the train is in motion. ment of the trial court should be affirmed.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1020-1026; Dec. Dig. & 254.*] 8. CARRIERS (8 314* )-CARRIAGE OF PASSEN

GERS-CONTRACTS-PLEADING. SCRIVNER v. MISSOURI PAC. RY. CO. In an action by a shipper of live stock in(No. 15964.)

jured while riding in the freight car instead of

the caboose, waiver of the contract requirement (Supreme Court of Missouri. July 2, 1914. with the railroad company that he should ride

Rehearing denied July 14, 1914.) in the caboose must be pleaded. 1. CARRIERS (8 315*)-PASSENGERS-INJURIES

(Ed. Note.–For other cases, see Carriers, -PLEADING-PROOF-VARIANCE,

Cent. Dig. SS 1260, 1270, 1273, 1274, 1276In an action by one injured while riding in 1280 ; Dec. Dig. 8 314.*] a freight car, the railroad company pleaded a contract requiring plaintiff to ride in the ca

In Banc. Appeal from Circuit Court, Jackboose, and plaintiff by his reply attempted to son County; Thos. J. Seehorn, Judge. avoid the effect of the contract by setting up Action by Frank Scrivner against the Misthat he was a minor at the date of its execu

From a tion; that it was in violation of the statutes souri Pacific Railway Company. of the state where made ; that no order from judgment for plaintiff, defendant appeals. the board of railroad commissioners permitting Reversed. such contract had been obtained ; and that it was without consideration. Held, that evidence Martin L. Olardy, of St. Louis, and Edw. J. tending to show that plaintiff was in the freight White, of Kansas City, for appellant. Boyle, car to protert bis property from injury was in- Guthrie, Howell & Smith and Joseph S. admissible, not having been pleaded.

[Ed. Note.-For other cases, see Carriers, Brooks, all of Kansas City, for respondent. Cent. Dig. $$ 1270, 1281, 1282; Dec. Dig. 8 315.*]

GRAVES, J. Plaintiff, whilst shipping 2. PLEADING ($ 177*)-REPLY-ADMISSIONS.

some horses and some farm and household As plaintiff replied first by a general denial, his plea of matters in confession and avoid goods from Council Grove, Kan., to Carbonance did not admit that there was a valid con- dale, Kan., was injured en route near the tract.

station of Admire on February 22, 1908. He [Ed. Note. For other cases, see Pleading, had loaded the car the day previous and had Cent. Dig. 88 354, 355; Dec. Dig. & 177.*] 3. Trial (8_251*)-INSTRUCTIONS-APPLICA- ride on the train with the car of stock and

signed up a written contract entitling him to BILITY TO PLEADINGS.

The instructions should not be wider than goods. He and his mother had remained in the scope of the pleadings, whatever range the the car over night before it left Council evidence may have taken.

Grove on the morning of February 22d, at [Ed. Note. -For other cases, see Trial, Cent. about 7 o'clock. The accident occurred about Dig. 88 587-595; Dec. Dig. $ 251.*]

9 o'clock of that morning. The plaintiff and 4. APPEAL AND ERROR (8 302*)-PRESENTA

TION OF GROUNDS OF REVIEW IN COURT BE- his mother were in the freight car, and, just LOW-NECESSITY,

after the train left Admire, the car ahead of Where the court on its own motion modi- plaintiff's car left the track, and plaintiff's fied plaintiff's instruction, the instruction is that of the court, and defendant, to review the car was forced from the track, toppling over, propriety of the instruction, must in his mo- and badly crushing his right leg below the tion for new trial assign as error the giving of knee. The injuries were such that amputainstructions by the court.

tion had to be resorted to, and, owing to the (Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. š§ 1744-1752; Dec. Dig. & appearance of septic poisoning, a second 302.*)

amputation was required. At the date of 5. EVIDENCE (8 20*)-JUDICIAL NOTICE.

accident the plaintiff lacked one day of being It is a matter of common knowledge that| 21 years of age. The negligence relied upon it is more hazardous to ride in a freight car is thus stated in the petition : loaded with stock and merchandise than in the caboose of the same train.

“That on or about the 22d day of February,

1908, plaintiff was a lawful passenger on one of [Ed. Note.-For other cases, see Evidence, | defendant's west-bound trains, running over and Cent. Dig. $ 24; Dec. Dig. § 20.*]

along aforesaid line; that while said train was 6. CARRIERS ($ 247*) – CARRIAGE OF Pas- passing through the said town of Admire, Kan., SENGERS-CONTRACTS-VALIDITY.

or running a short distance west thereof, and Where a contract between a railroad com- while plaintiff was a passenger on said train, pany and a shipper of stock and household the defendant carelessly and negligently caused goods required the shipper to ride at all times said train to be wrecked, and the car in which in the caboose, such restriction was reasonable plaintiff was riding to be derailed and thrown and valid, and the shipper, when riding in the from its tracks and upon the embankment of said track, and thereby caysed plaintiff to be which shall relieve such company from liability injured as hereinafter set out."

for loss occurring through its misconduct or

No order or regulation of the There is contention over the legal effect pegligence.

board of railroad commissioners of the state of of the pleadings, and the further pleadings Kansas has ever been made modifying or afhad best be fully set out. For its answer the fecting the provisions of said statute. defendant said:

“(3) Plaintiff further says that said pretend“Defendant, for answer to plaintiff's petition, the defendant had no rate properly published,

ed contract was without consideration; that leave of court being had to file the same, ad- and offered plaintiff no rate, and advised plainmits that it is now, and was at all the times in tiff of no rate other than that charged plaintiff said petition mentioned, a corporation and engaged in the operation of a railroad; admits for the shipment which was made at the time that, on or about the date in said petition men contract, and plaintiff had no knowledge or no

of the pretended execution of said pretended tioned, plaintiff was being transported on one of defendant's trains; and admits that near

tice of any other rate." the town of Admire, Kan., on or about the date The trial resulted in a judgment for plainin said petition mentioned, an accident occur- tiff in the sum of $15,000, from which the red, whereby plaintiff received certain injuries; but denies that said accident was caused by defendant has appealed. Matters of detail any negligence or carelessness on the part of will be left to appropriate propositions in this defendant; and also denies that plaintiff's the course of the opinion. Matters urged in injuries were of the character or to the extent the second and third paragraphs of the rein said petition alleged.

“Further answering, defendant denies each ply were in effect abandoned below and are and every allegation in plaintiff's petition con- not urged here in the briefs. tained which is not herein expressly admitted to [1, 2] I. Of the several questions presented be true. "Further answering, defendant says that on

by the record, the following is of some imthe 21st day of February, 1908, said plaintiff portance: The court permitted the plaintiíf, shipped over defendant's line of railway from over proper and pointed objections of the deCouncil Grove, Kan., to Carbondale, Kan., four fendant, to show that, whilst his car was behorses and a lot of household goods; that on said 21st day of February, 1908, plaintiff and ing switched into the train at Council Grove, defendant entered into a written agreement, it was so forcibly struck by another car that which provided that plaintiff might accompany the partition which plaintiff had erected besaid property shipped as aforesaid, but that he should remain in the caboose car attached to tween the goods and the horses was broken the train in which was the car containing said and knocked down, and that for this reason property while said train was in motion; but he was compelled to ride in the stock car defendant says that plaintiff, in violation of rather than the caboose. Defendant objectsaid agreement, did not remain in the caboose car attached to said train, but undertook to ed to this testimony, and urged that it was ride and did ride in the freight car containing improper under the pleadings, and that it said property; and that if plaintiff had re- was not prepared to meet such an issue. mained in the caboose car, as required to do by There was error in the admission of this testhe terms of said contract, he would not have sustained any injury.

timony under the pleadings. The answer set “Further answering, defendant says that the up a contract by which the plaintiff obligated injuries sustained by plaintiff in the accident himself to ride in the caboose of the train. above mentioned were the result of bis own By the reply the plaintiff set up a number of negligence and carelessness, which directly contributed thereto.

things to avoid the force and effect of this "Further answering, defendant says plaintiff, contract. He said: (1) That it was void beby riding in said freight car instead of said

cause he was a minor at the date of its execucaboose, in violation of the terms of his contract and in violation of the instructions of the tion; (2) that it was void because in violaemployés of the defendant in charge of said tion of the statutes of Kansas and the detrain, assumed the risk of any accidents or in- cisions of that state; (3) that no order of juries that might result to him from so doing: the board of railroad commissioners had been

"And now, having fully answered, defendant asks to be discharged, with judgment for its obtained under the law, which permitted costs."

such a contract, and that it was void for To this the plaintiff replied thus:

want of consideration. In such reply plain"Now comes plaintiff and by leave of court tiff did not plead that there was any other files herein his amended reply and says:

“(1) He denies generally each and every al- provision in the contract that gave him aulegation in defendant's answer made or con- thority to ride in the car, nor did he plead tained.

the excuse proven by his testimony as reason "(2) Plaintiff further says that said pretended for his absence from the caboose, and for his contract referred to in said answer is null and void for the reason that,

at the time of its pre- presence in the car. The plaintiff, having tended execution, plaintiff was a minor; and undertaken by his pleadings to obviate the that said pretended contract is in violation of force and effect of the alleged contract, and the statute of the state of Kansas, and the de- baving stated in such pleadings the things cisions of the Supreme Court of the state of which did obviate the force of the contract Kansas, where said pretended execution and delivery of said pretented contract were made. provisions, should have been confined, in his By sec 5987 of the General Statutes of proof, to the reason assigned in his reply. Kansas of 1901 it is provided that no rail. To hold otherwise was to compel the defendroad company shall be permitted, except as otherwise provided by regulation or order of ant to meet an issue of which it had no nothe board of railroad commissioners, to charge tice, i. e., that plaintiff's presence in the or limit its common-law liabilities as a com- car was occasioned by a previous negligent mon carrier, which statute, as construed by the Supreme Court of Kansa's, forbids the mak" act of the defendant, in switching the cars ing by any railroad company of any contract l together with such force as to destroy the partition therein. What defendant may have condition of his stock and other things in the been able to show about the condition of this car was one of such facts. By this failure partition we do not know, but it is clear that the defendant was authorized to come into under the pleadings,which we have purposely court prepared to meet only such things as set out in full, it had no reason to anticipate plaintiff by the reply had outlined, and to resuch proof. Defendant had the right to con- quire it to meet other and further matters clude that the plaintiff had set out all the was error. In other words, where an answer things which he had to offer as to why he was sets up a new matter to avoid the matter not in the caboose, where he was required to charged in the petition, and the reply underbe by the terms of the contract pleaded. But takes to set up new matter in avoidance of the plaintiff urges that the violation of the alleg- new matter in the answer, such new matter ed contract was but a matter of contributory must be specifically pleaded, and the plainnegligence upon the part of the plaintiff, and tiff cannot go, by way of evidence, beyond that plaintiff had the right to show all the such pleadings for other and different new circumstances to rebut the idea of contribu- matter in avoidance. This plaintiff did in tory negligence.

this case. In other words, the rule as to In a case where the pleadings were differ- matters of avoidance in replies is the same as ent, there might be much force in this conten- to matters of avoidance in answers. If by tion, but the matter cuts deeper in this case, answer the defendant undertakes to avoid the because of the peculiar pleadings of the plain-right charged in plaintiff's petition, he must tiff by way of reply. That reply amounts to specifically plead the matters of avoidance, this:

and, in making his proof, will be confined to "I deny that there was such a contract (vide the matters pleaded. The same rule, both as the general denial in the reply), but, if I did execute the contract, I was not required to ride to proof and pleadings, applies as to replies, in the caboose, but because the contract is where matters of avoidance are relied upon void."

in the reply. There was error in admitting He then assigns four reasons to sustain the this testimony over the objection of defendview entertained by him of the invalidity of ant. the contract. In other words, he, by way of [3] II. Not only was there error in admitreply, undertakes to assign a reason why he ting this evidence under the pleadings in this was not in the caboose, and that reason was cause, but there was also error in submitting to the effect that he did not have to be there, such questions to the jury under the pleadbecause the written instrument which said he ings. Instructions should not be broader should ride there was void. He did not assign than the issues made by the pleadings, how. as his reason for not being in the caboose ever wide the scope of the evidence may be. that either by the contract or by the condi- Plaintiff's instruction No. 2 was erroneous as tion of things in the stock car he was obliged asked and erroneous as slightly modified and to be in that car rather than in the ca- given by the court. boose. The evidence thrust upon the defend- [4] Technically speaking, the defendant ant a new and a not to be expected issue, un cannot avail itself of this error, because in der the pleadings, and the court erred in per- the motion for new trial complaint is not mitting the testimony over defendant's objec: made as to instructions given by the court of tions, if there was such a contract, and such its own motion. The modification was so contract was a valid one. In other words, slight, the purport of each being exactly the the pleadings in this case cut deeper then a same, it is highly technical to call the one mere charge of negligence by defendant given the instruction of the court of its own (charged by plaintiff), and contributory neg. motion, yet we shall do so, and rule that the ligence or assumption of risk by plaintiff defendant lost its right to complain of this in(charged by defendant but denied by plain- struction, which puts this matter of the negtiff). And the pleadings in the instant case ligent handling of the car at Council Grove, cannot be measured by the rules in cases before the jury. This because of not having where the simple charges above stated con- preserved the point in the motion for new stitute the pleadings.

trial. But, as said in the previous paragraph, We do not go as far as defendant contends, the evidence itself was incompetent, under i. e., that the reply amounts to the admission the pleadings, and this point is preserved in of a valid contract, and, the plaintiff having the motion for a new trial, so that in the failed to show its invalidity, he cannot re-end justice may be meted out notwithstandcover. The reply contains a general denial, ing the oversight in the motion for new trial and this raised the issues of a contract or no above stated. contract. The reply is more in the nature of [5, 6] III. The real question in this case is an answer in a note case, where there are the status of the plaintiff under this contract. pleas of non est factum and payment. Such For the error assigned in paragraph I, the defenses have been held not to be inconsist- present judgment would have to be reversed, ent. We do say, however, that in the reply but defendant urges that the cause should the plaintiff did undertake to allege the facts not be remanded. It is clear that under the which might authorize him not to be present contract the relationship of carrier and pas

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