Chicago, R.I. & P. Ry. Co. v. Newburn
| Decision Date | 12 July 1910 |
| Citation | 110 P. 1065,27 Okla. 9,1910 OK 198 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. NEWBURN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Plaintiff purchased a first-class, round trip, nontransferable ticket which contained on its face a requirement that he must sign it in ink, and a proviso that, if presented for passage by other than the original purchaser, the same was void; also, a line for his signature with a line for the signature of the agent as witness. Without being signed said ticket was honored for plaintiff's going passage. On his return he was ejected from the train because said ticket was not signed. There was no evidence showing plaintiff had refused to sign the same. Held, even if essential to the validity of the ticket, plaintiff's signature was waived by the company, and his ejection was wrongful.
Under the decisions controlling in the Indian Territory, exemplary or punitive damages were not allowable against the principal unless the evidence showed that the principal participated in the wrongful act of the agent expressly or impliedly, by his conduct authorizing or approving it either before or after its commission, and, where there is a total absence of such evidence, an instruction authorizing a jury to allow plaintiff such damages is erroneous.
In an action by a passenger for wrongful ejection from a train plaintiff's loss of time cannot be considered in assessing his damages, in the absence of evidence as to the value of his time.
Error from District Court, Le Flore County; D. A. Richardson Judge.
Action by Geary L. Newburn against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of plaintiff, defendant brings error. Reversed and remanded.
C. O. Blake, Thos. R. Beman, and Stuart & Gordon, for plaintiff in error.
T. T. Varner, for defendant in error.
This action was begun in the United States Court for the Central District of the Indian Territory, sitting at Poteau, in January, 1907, by Geary L. Newburn, defendant in error hereafter called "plaintiff," against the plaintiff in error, to recover the sum of $2,000, for damages for an alleged wrongful ejection from a train of defendant on December 13, 1906, at a point between McAlester and Haileyville, in what was then Indian Territory. To the complaint defendant filed its answer, consisting of a general and specific denial of all the material allegations contained therein. The cause was tried January 2, 1908, and the jury returned a verdict for plaintiff in the amount prayed for. The evidence showed that plaintiff purchased a first-class, round trip ticket at Poteau on the line of the St. Louis & San Francisco Railway Company, over that line and the Chicago, Rock Island & Pacific Railway Company, to South McAlester and return, the ticket on its face, among other things, containing a provision that it was not transferable, and that it "must be signed in ink by the person who is to use it, and if presented for passage by other than original purchaser, or if it shows any alterations by erasures or otherwise, or more than one date or route is designated, it shall be void and conductor will refuse to honor, and will take up and collect full fare"; also, an agreement on the part of the purchaser to be governed by all the conditions as stated in the contract which it recites are fully understood. Immediately following thereafter was a line with "signature for original purchaser" printed beneath, and another line with the word "witness" printed above, and the word "agent" beneath. Plaintiff testified that he used the ticket in going to McAlester, and that on his return, at some point between McAlester and Haileyville, the conductor asked him for his ticket; that he showed the same to him, and the conductor said the ticket was not good and demanded cash fare; that he then left him until he had collected the tickets and fares throughout the balance of the train, when he returned and told him that he must either pay his fare or get off the train; that after talking a while he was grabbed by his shoulder and pushed out of the car door, and after stepping off the car he was given a push and fell, hurting his leg. The testimony of plaintiff stands alone on what took place at the time of his ejection. The conductor, brakeman, and porter all testified that they never saw the plaintiff, that the train did not stop at the time or place where he stated that it did, and that he was not ejected. This evidence was also corroborated by the testimony of the train dispatcher, who showed that by his records no reports of any such occurrence had been made to him, although it was the duty of the train operator to make them. As the plaintiff does not testify that the conductor assigned any reason for ejecting him, the record is silent on this proposition; but counsel for defendant, though relying and insisting upon the proposition that the testimony of plaintiff as to his having been ejected is false, assert that, by reason of the fact that plaintiff had failed to sign the ticket, the same was void, and that, even had he been ejected after having refused to pay fare as stated, the action on the part of the train operative was legal, and that plaintiff had no cause of action; hence the question is raised whether or not plaintiff could be lawfully ejected from the train for the sole reason that the ticket which he held, containing the terms above set forth, had not been signed by him. Plaintiff asserts, and it is not denied, that he was the original purchaser of...
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