McGinnis v. Missouri Pac. Ry. Co.

Decision Date05 April 1886
Citation21 Mo.App. 399
PartiesCHARLES MCGINNISS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
CourtKansas Court of Appeals

APPEAL from Cole Circuit Court, HON. E. L. EDWARDS, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action to recover damages occasioned by the wrongful act and conduct of defendant's conductor toward the plaintiff, as a passenger on one of defendant's passenger trains. The petition alleges, substantially, that on or about the third day of July, 1883, the plaintiff, who resided at Jefferson City, Missouri, applied to the agent of defendant at said station, for a commutation ticket to St. Louis and return, the defendant then offering for sale what was known as fourth of July excursion tickets from that point to St Louis and return. That said agent then presented him such ticket, for which plaintiff paid the established rate of fare; that the ticket so delivered by said agent entitled plaintiff to take passage on that day on defendant's cars from Jefferson City to St. Louis and to return on the same not later than the fifth day of that month; that he so went to St. Louis, and on the evening of the fourth of July he took passage on defendant's regular train at St. Louis to return to his home; that after they had left St. Louis defendant's conductor came along collecting tickets, and demanded of plaintiff his ticket, whereupon plaintiff presented him his said ticket, but that defendant unlawfully wilfully, and insultingly, did expel and eject plaintiff from its said car in a disgraceful manner, and used boisterous, insulting, and threatening language to plaintiff, and expelled him from its car in the night time and in a strange place, and refused to carry him according to contract, etc., and that by reason of the expulsion, and the insulting, impudent and threatening language used toward him, he has been damaged in the sum of five thousand dollars. The answer, inter alia, pleaded that on the occasion in question it became the duty of the conductor to collect a ticket of fare from the plaintiff, as such passenger, and that when he demanded of him his ticket, he presented to him a special limited ticket, which, by its terms, was void after the date expressed therein; that this date had the appearance, and the conductor had reasonable cause to believe that it had been tampered with and changed from July 3 to July 5; that it was agreed that if plaintiff would pay his fare, amounting to $3.75, the conductor, on arriving at Jefferson City, would refund his fare, if the agent there would state that the ticket had not been altered; that plaintiff paid said fare, and was carried to Jefferson City; that when presented to the agent he stated that July 5 was the correct date, and that the appearance of alteration in the ticket was the result of the agent's haste in making it out, and a defective pen; that thereupon defendant tendered to plaintiff the amount of the fare so collected from him by the conductor, which plaintiff refused to accept; that the conductor acted in compliance with the reasonable rules of defendant then in force, to which the conductor was subject.

The replication tendered the general issue.

There is little, if any, controversy in the evidence up to the occurrences between the plaintiff and the conductor about the rejection of the ticket. Touching this issue the plaintiff's evidence tended to show that when he presented his ticket to the conductor, the latter remarked gruffly: " This ticket has been tampered with; the date has been changed from a 3 to a 5." To which plaintiff replied: " I do not know about that; that is the way it was when I bought it; if it is wrong, it is the fault of the agent who sold it to me." Thereupon, the conductor took the ticket with him, and returning shortly afterwards to plaintiff, said he had consulted one of the officers of the road, and he (the conductor) could not accept the ticket and plaintiff must pay his fare. This the plaintiff declined to do, on the ground that he had once paid his fare; whereat the conductor again told him he must pay or he would put him off.

The plaintiff testified that the conductor was " gruff in manner, and rough in his speech," and that the conductor said to him, " the ticket was forged or tampered with, and that if he (plaintiff) did not alter it some one else did."

Plaintiff also said to the conductor: " What is the use of your getting so hot about it?" and told him if he would look at the other side of the ticket he would see from the stamp on it, if he was not drunk or crazy, that it was sold on the third instant. As the conductor turned it over, the plaintiff snatched it from his hand, remarking that if the conductor would not carry him on it he was smart enough to keep his ticket. The conductor told him he would put him off at Webster, the next station, and that he must pay him forty cents, the fare from St. Louis to that point. On nearing the station, the conductor called to a brakeman and told him the plaintiff was to be put off there. When the car stopped, the plaintiff, to avoid forcible expulsion, left the car, followed by the conductor, and passed out onto the station platform; that it being in the night, and he a stranger in the place, he concluded to re-enter the car and pay his fare, which he did. The conductor said to him in the controversy, that if his ticket was all right he could get his money back on reaching Jefferson City. The agent was not at his station on arriving at the depot, so nothing more occurred.

Afterwards, the company, being satisfied that the mistake, if any, about the ticket was committed by the agent, made tender to plaintiff, before suit was brought, of the amount of fare collected from him by the conductor, which the plaintiff declined to accept. The ticket agent testified that he attributed the apparent blur in the figure five to his being in a hurry, and using a pen that had something on it.

The conductor testified that the ticket, when presented, had the appearance to him of having been altered, and that, under the instructions then in force from the company, he declined to accept it, and demanded the fare; that he showed the ticket to another conductor of defendant's road, and to another party, who was an expert, but having some employment under defendant, who pronounced it spurious; that he acted in good faith, and used no offensive language, and no force in expelling plaintiff from its car; and that he proposed to plaintiff before he left the car that if he paid his fare he would refund it to him if the agent at Jefferson City said it was all right.

Defendant offered to introduce evidence to the effect that under its rules in force, and instructions thereunder to its conductors, agents were not to issue such tickets to passengers, but to cancel and return the same to the general office; that no changed or altered tickets were permitted to go into the hands of the passengers, and that conductors were not permitted to receive them; that altered tickets are among the common devices for defrauding the company by " scalpers" and others, and that such regulation was necessary for the proper protection of defendant.

On plaintiff's objection this evidence was rejected.

Under the instructions, to be hereafter noticed, the jury returned a verdict for plaintiff, assessing his damages at five hundred dollars. Defendant has brought the case here by appeal.

SMITH & KRAUTHOFF, for the appellant.

I. The court erred in excluding the rules and regulations of the defendant company, as offered to be proved. It is the right of a railroad company to make such reasonable regulations, and to enforce them. They are a part and condition of the contract. Logan v. Ry., 77 Mo. 663; Johnson v. Ry., 46 N.H. 213; Claybrook v. Ry., 19 Mo.App. 432; Hutch on Car., sect. 587; Angell on Car. (5 Ed.) sects. 525, 609; 2 Rorer on Railroads, 978; Walker v. Ry., 15 Mo.App. 336; Bradshaw v. Ry., 135 Mass. 407; Frank v. Ingalls, 42 Ohio St. 560; Railroad v. Chastine, 54 Miss. 503; Cheney v. Ry., 11 Met. 121.

II. The court erred in overruling defendant's demurrer to the evidence. The action was in tort, and grounded upon alleged wrongful acts of the conductor. It was the duty of this officer to enforce the regulations of the company. If these were valid, no right of action can be founded on an act done in their proper and reasonable enforcement. The plaintiff having forced the conductor to eject him by his persistent refusal to comply with the demand for fare, cannot make this ejection a ground for recovery. Townsend v. Ry., 56 N.Y. 295; Logan v. Ry., 77 Mo. 663; Frederick v. Ry., 37 Mich. 342; Yorton v. Ry., 54 Wis. 234; Railroad v. Griffin, 68 Ill. 499; Bradshaw v. Ry., 135 Mass. 407; Railroad v. Fleming, 14 Lea. 128; Railroad v. Wright, 68 Ind. 586; 3 Wood on Railway Law, 1439. The plaintiff having sued in tort for the alleged wrongful act of the conductor, could not recover damages resulting from the mistake of the ticket agent. Marshall v. Ry., 78 Mo. 610; Townsend v. Ry., 56 N.Y. 295.

III. The court ought to have instructed the jury, as asked by defendant, that there could be no recovery of exemplary damages in this case. At most, the plaintiff was only entitled to be compensated. There are here none of the elements essential to the allowance of exemplary damages, as fraud, malice, oppression, wantonness. Trigg v. Ry., 74 Mo. 147; Marshall v. Ry., 78 Mo. 610; Jenkins v. Fowler, 24 Pa.St. 308; Railroad v. Hoeflich, 62 Md. 300; Claybrook v. Ry., 19 Mo.App. 432.

IV. The verdict is excessive, even if plaintiff was entitled to recover exemplary damages. Trigg v. Ry., 74 Mo. 147; Marshall v. Ry., 78 Mo. 600; Railroad v. Devin, 86 Ill. 286.

V. The entire...

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