Du Laurans v. First Div. St. Paul & Pacific R. Co.

• Decision Date: 01 January 1870
• Parties: EDWIN DU LAURANS v. FIRST DIVISION OF THE ST. PAUL & PACIFIC R. CO.
• Court: Minnesota Supreme Court

Page 29

15 Minn. 29

EDWIN DU LAURANS

v. FIRST DIVISION OF THE ST. PAUL & PACIFIC R. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Ramsey county, denying a new trial. The plaintiff had a verdict for $500.

H. R. Bigelow, for appellant, contended —

George L. Otis, for respondent, contended —

McMILLAN, J.

This action is brought by the plaintiff against the defendant to recover damages on account of the expulsion of the plaintiff, while a passenger, from the cars of the defendant.

All the questions except one arise upon the charge of the court, and all are presented by the parties and considered in connection with the charge. The court charged the jury as follows: "If the jury shall find from the evidence that the plaintiff made known to the conductor that he was going to Minneapolis, and in good faith tendered to him 50 cents as the full fare to that point, and it was in fact the full fare when paid in advance at the ticket office of the defendant, the conductor had no right to take the money except for the specific purpose tendered, to-wit, as a full payment of such fare; and after taking and retaining the money so tendered, he had no right to eject the plaintiff from the car, and in such case the ejectment was wrongful, and the plaintiff would be entitled to recover."

Also that "it was the duty of the conductor, if he intended to insist upon the payment by the plaintiff of the regular train fare, to return the money which the plaintiff paid him, and that he had no right to put the plaintiff off the train without first returning such money, if it was tendered by the plaintiff as the fare from St. Paul to Minneapolis."

And the court refused to charge (as requested by the defendant) "that if the plaintiff persistently refused to pay the established fare from St. Paul to Minneapolis, — that is to say, the sum of 60 cents when paid on the cars, — and if the conductor for that reason expelled him from the cars at Lake Johanna crossing, using no unnecessary force for that purpose, then the plaintiff cannot recover, but the verdict must be for the defendant."

To each of the charges so given, and to such a refusal, an exception was taken by the defendant.

In the course of the trial the defendant's counsel asked the superintendent of the railroad, then a witness on the stand, "What was the fare on eighth March last from St. Paul to Lake Johanna crossing?" Which question was objected to by plaintiff's counsel as immaterial. The counsel for the defendant here stated, in answer to a question by the court, that he did not expect to prove a contract between the plaintiff and the conductor to go only to such crossing, but did expect to prove that the regular fare in the cars from St. Paul to Johanna crossing was 50 cents. The court thereupon sustained the plaintiff's objection, and to such ruling the defendant, by its counsel, duly excepted.

The defendant is a common carrier of passengers, and subject to the duties and entitled to the privileges and powers incident to such employment. Com. v. Powers, 7 Metc. 601.

At the time of the occurrence involved in this case it was the practice of the company to admit passengers into the cars without tickets or prepayment of fare, and to collect the fare after the starting of the train, the conductor passing through the cars and calling upon the passengers for their tickets or fare.

The plaintiff, therefore, wishing to travel on the defendant's road, had a right to enter the train, and take a seat, and having taken a seat in the car with the intention in good faith of going from St. Paul to Minneapolis, he had a right to retain his place so long as he complied with the reasonable regulations of the company. In the absence of qualifying circumstances, the plaintiff, not having procured a ticket before entering the car, would be liable to pay the rate of car fare established by the company, otherwise his right to a seat or passage in the train would be determined, and upon his refusal to pay such fare the company would have a right to use such reasonable force as would be necessary to eject him from the train. But this is a right which the company might waive, and the plaintiff having tendered the conductor the sum of 50 cents, believing it to be the full fare to Minneapolis, and that sum being the actual fare when a ticket is procured at the office, it was the duty of the conductor, if he did not intend to accept it as full fare for the plaintiff, to refuse the tender by declining to receive it, or by immediately returning it when advised of the purpose for which it was made; but having received and retained it with a knowledge of the purpose for which it was tendered by the plaintiff, it must be held to be an acceptance of the same as full payment of the plaintiff's fare to Minneapolis.

It is claimed by the defendant that "the plaintiff, by entering the defendant's cars as a passenger, assumed the duties of one, and became liable, and must be held to pay his fare as upon an implied contract, and as one of these duties, for whatever distance he should remain a passenger, according to the regular rates of the company;" that the regular fare from St. Paul to Lake Johanna crossing, as the defendant offered to show, was 50 cents, and the plaintiff having traveled that distance before the expulsion, was indebted to the company that sum under the implied contract. The conductor, therefore, was justified in retaining the amount paid by the plaintiff.

In this case it distinctly appears that the plaintiff entered the cars for the purpose of going to Minneapolis, and not elsewhere, and that he had no intention whatever of leaving the cars at Lake Johanna crossing, and did not do so until forcibly expelled by the conductor from the train, and under many disadvantages returned to St. Paul. Whatever may be the law under a different state of facts, where, as in this instance, it appears positively that the plaintiff did not, in fact, intend to make such a contract as the defendant would imply, but did intend one of an entirely different character, and that the services performed in carrying the plaintiff to the crossing mentioned were not only of no benefit to the plaintiff, but a positive disadvantage and inconvenience to him, it would do violence, it seems to us, to every sound principle of reasoning to say that from such fact the law implies a contract upon the part of the plaintiff to pay his fare at the regularly-established rates, or at any rate, for the distance traveled before his expulsion from the car.

We think the charges and rulings of the court were correct.

The court further charged the jury, at the request of the plaintiff, that "if the jury shall find from the evidence that 50 cents was the ordinary fare from St. Paul to Minneapolis,...