Atchison, T. & S. F. Ry. Co. v. Vosburg

• Decision Date: 26 June 1928
• Docket Number: Case Number: 18266
• Parties: ATCHISON, T. & S. F. RY. CO. v. VOSBURG.
• Court: Oklahoma Supreme Court

1928 OK 431

270 P. 58

132 Okla. 196

ATCHISON, T. & S. F. RY. CO. v. VOSBURG.

Case Number: 18266

Supreme Court of Oklahoma

Decided: June 26, 1928

Syllabus

¶0 1. Carriers--Wrongful Ejection of Passengers on Account of Misdated Ticket--Measure of Damages.

Where a party is entitled to ride as a passenger on a railroad passenger train, but whose right is denied by the train conductor because of a misdated ticket issued by the station agent of the railroad company, the passenger is not required to pay an additional fare to the conductor to avoid ejection, and may offer sufficient resistance to denote that he was being removed against his will by compulsion, provided the same be not a criminal disturbance of the peace. And in an action against the railroad company for damages in such case, the passenger is not limited in his recovery as actual damages to a reimbursement for the cash outlay occasioned thereby, but also may recover a further reasonable amount for his injured feelings and humiliation thus wrongfully imposed upon him; and the amount fixed by the verdict of the jury will not be deemed excessive unless it clearly appears from the record that the jury acted from prejudice, partiality, or corruption.

2. Same--Master and Servant--Recovery of Exemplary Damages Against Railroad for Grossly Wrongful Act of Conductor.

Where a conductor of a passenger train, engaged in the furtherance of his employer's business, and acting within the scope of his employment, wrongfully ejects a passenger from his master's train in a manner showing the servant to be grossly negligent and indicating a disregard of the rights of the passenger, in an action against the master based thereon, exemplary damages may be allowed against the master irrespective of whether or not the wrongful act of the servant was authorized or ratified.

3. Trial--Refusal to Give Incorrect Requested Instructions not Error.

It is not error to refuse to give requested instructions which cannot be given without correction or modification.

Rainey, Flynn, Green & Anderson and M. M. Gibbens, for plaintiff in error.

Chase & King, for defendant in error.

TEEHEE, C.

¶1 In the trial of this cause the parties appeared in their reverse order as plaintiff and defendant, and will here be so designated. The plaintiff by a jury verdict recovered a judgment of $ 716.53 against the defendant under a petition in which plaintiff by appropriate pleadings alleged that he was wrongfully and forcibly ejected from defendant's passenger train on which he was entitled to transportation as a passenger. Of the amount of the judgment, $ 516.53 was for actual damages and the remaining $ 200 for exemplary damages.

¶2 Defendant first complains of the judgment on the ground that "the verdict of the jury is excessive and was not supported by the evidence." Hereunder counsel for defendant in their brief condede that, as the jury chose to believe plaintiff's narrative of the circumstances on which he predicated his cause of action, plaintiff was entitled to recover his actual expense incurred by reason of his ejection from defendant's train, this being in the sum of $ 16.53, but challenge the rightfulness of the judgment for the amount above such sum awarded as actual damages as being excessive. This requires our notice of the salient points of plaintiff's proof to determine the question. The evidence inducing the verdict, in substance, was that plaintiff on March 24, 1926, purchased a ticket from defendant's station agent at Cherokee, Okla., which entitled his transportation to Alva, Okla., plaintiff's residence, paying therefor the regular price of $ 1.38. Defendant's train conductor rejected the ticket because the same, from the date stamped thereon, was more than one day old, the same being as of March 21, 1926, and thus under the defendant's rules and regulations was rendered non-acceptable by the train conductor. The conductor refused plaintiff's explanation of the purchase in that the station agent must have misdated the ticket as it was presented on the day of purchase. Upon being informed by the conductor, plaintiff, not having further ready cash, offered to give the conductor his personal check or other check in his possession to pay the charges to the point of his destination, which were refused on the ground that the conductor was not permitted by defendant's rules and regulations to accept same, and thereupon informed plaintiff that he would have to leave the train at the next station. Plaintiff believing himself entitled to ride on defendant's train, by virtue of his purchase of the ticket, declined to leave the train as requested by the conductor and offered resistance but not to the extent of a breach of the peace, whereupon the conductor forcibly ejected plaintiff by seizing him from behind in an angry manner, booting him with his knee, and shoving plaintiff from defendant's train, and in the act plaintiff fell on his hands and knees to the station platform suffering slight personal injuries, with his feelings wounded and humiliated from the fact of ejection in the presence of several bystanders at the point of the wrongful conduct of the conductor. Plaintiff employed other means in reaching his destination at an expense of $ 15.15. There was no evidence to show that the plaintiff was at fault in the purchase of the ticket.

¶3 Defendant's argument is to the effect that by virtue of section 4902, C. O. S. 1921, it is authorized to promulgate reasonable rules and regulations for the conduct of its business, and may require passengers to conform thereto; that the rule requiring the use of tickets for passage within one day after sale is reasonable; that its train conductor was without discretion to disregard the rule, and enforcement was enjoined upon him as a part of his duties; that upon discovery of the invalidity of his ticket by reason of being misdated, plaintiff either should have paid his fare or left the train as requested; that plaintiff was without right to offer resistance and thus compel his forcible ejection from the train, and could not thereby enhance his damages above his actual loss, no force more than necessary having been resorted to by the conductor in the act of ejection; and that for such reasons the amount awarded as actual damages above the actual loss shown by the evidence and conceded to be allowable was excessive and the result of passion and prejudice on the part of the jury. In support of its theory defendant relies on St. Louis & S. F. R. Co. v. Johnson, 25 Okla. 833, 108 P. 378; Krueger v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 68 Minn. 445, 71 N.W. 683; Arnold v. Atchison, T. & S. F. Ry. Co., 81 Kan. 400, 105 P. 541; Olson v. Northern P. Ry. Co., 49 Wash. 626, 96 P. 150. We do not agree with defendant that these cases are controlling in the circumstances of the case at bar.

¶4 In St. Louis & S. F. R. Co. v. Yount, 30 Okla. 371, 120 P. 627, by paragraph 3 of the syllabus, it was held:

"In an action for damages from being wrongfully expelled from a passenger train, where the passenger is without fault, and where recovery is warranted by the evidence, he may recover a reasonable amount for insult, injured feelings, and humiliation, in connection with the actual expense incurred by the delay, although the conductor who ejected him used no force or violence, and was without fault in the premises."

¶5 In Coine v. Chicago & N.W. Ry. Co., 123 Iowa 458, 99 N.W. 134, it is said:

"Indignity, humiliation, wounded pride and mental pain are elements of damage for which a recovery may be had by a passenger wrongfully ejected from a train."

¶6 In Ellsworth v. Chicago, Burlington & Quincy R. Co., 95 Iowa 98, 63 N.W. 584, 29 L. R. A. 173, the court said:

"Plaintiff's ticket was apparently good on its face. It should have entitled him to one first-class passage from Prescott to Corning. The fact rendering it not good was a rule of the company as to the time in which it could be used. These rules are changeable at the pleasure of the company, and when a ticket is purchased from one station to another, and on its face it indicates a right to that passage, no rule or regulation of the company should be permitted to defeat that right. A passenger has a right to assume that an agent placed at a station will observe the rules with reference to such matters as dates in or on a ticket. What may be the rule today may not be tomorrow. Conceding plaintiff to have known of the rule previously he was not called upon to question the act of the agent as to the rule on the day he bought the ticket. It is neither reasonable nor practicable for passengers to take notice of such matters, or attempt to correct agents in regard to them."

¶7 In Kansas City, Memphis & Birmingham Ry. Co. v. Riley, 68 Miss. 765, 9 S. 433, 24 Am. S. R. 309, 13 L. R. A. 38, the syllabus is as follows:

"Where one purchases a round-trip ticket, and the outgoing conductor, by mistake, takes up the wrong end of it, the passenger is nevertheless entitled to transportation on the ticket left in his hands. If the return conductor refuses to accept this, and, ignoring explanation, ejects him for want of a proper ticket, the railroad company is liable therefor in damages."

"The holder of the ticket under such

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