Ferguson v. Missouri Pac. Ry. Co.

• Citation: 177 S.W. 616
• Decision Date: 01 June 1915
• Docket Number: No. 18395.,18395.
• Parties: FERGUSON v. MISSOURI PAC. RY. CO.
• Court: United States State Supreme Court of Missouri

177 S.W. 616

FERGUSON v. MISSOURI PAC. RY. CO.

No. 18395.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Mrs. P. S. Ferguson against the Missouri Pacific Railway Company. Judgment

for plaintiff, and defendant appeals. Reversed and remanded.

H. L. Shannon, of Joplin, for appellant. Edw. J. White, of Kansas City, Jas. F. Green, of St. Louis, and A. E. Spencer, of Joplin, for respondent.

BROWN, C.

This is a suit for damages for the ejection of plaintiff from defendant's train upon which she was a passenger. The petition states: That on November 3, 1908, she made a contract with the defendant, by which, for the consideration of $14.25 then paid by her, it agreed to carry her on one of its regular trains leaving that day, from Webb City, Mo., to Logan, Kan., and gave her a passenger ticket purporting to entitle her to such transportation. That for the purpose of availing herself thereof she took passage the same day at Webb City on the defendant's next train to Logan, and while on said train tendered the ticket to the conductor thereof, who refused to receive it and carry her thereon, and upon the arrival of the train at Carthage, near Webb City, forcibly, willfully, and maliciously ejected her therefrom. "That, as a result of being ejected as aforesaid from said train, she has suffered great inconvenience, mental anguish, loss of time, and exposure to inclement weather, and has been put to great expense, to her actual damage in the sum of $5,000, for which amount, and for exemplary damages in the sum of $5,000," she asks judgment. The answer denies the contract to carry plaintiff, and the issue to her of a passenger ticket, but admits that on the day charged she paid the regular price for such a ticket as is alleged, and got on the defendant's train at Webb City to go to Logan, "but by a mistake of defendant's agent said ticket did not contain a going coupon" and was only good from Logan to Webb City, by reason of which the plaintiff did not occupy the relation of passenger on said train, and was not entitled to transportation between said stations. It admits that she tendered the conductor the ticket that it had given her, and was told that she could ride between said stations by paying the regular fare or producing a valid ticket entitling her to such transportation, but that plaintiff voluntarily left the train at Carthage, Mo., rather than pay such fare or buy such ticket. The answer also pleaded, in conclusion, that any construction of this ticket so as to place upon the defendant the obligation to carry the plaintiff between the stations of Webb City and Logan would impair the obligation of the contract in violation of both state and federal Constitutions. The plaintiff put all these matters, including the constitutional plea, in issue by reply.

The ticket was an excursion ticket, sold at the reduced rate of 1½ fares plus $2 for the round trip. The plaintiff was traveling with her husband, who was a farmer, and a baby which she carried in her arms. He purchased their tickets, which were alike, at Webb City before taking the train. Each of them was signed by the holder, and was described upon its face as a contract with the several companies over whose lines it entitled the holder to be carried. There was nothing in it to the effect that a coupon was or should be attached covering the outward passage. A coupon was attached below the signature covering the return passage. It provided that coupons were not good if detached. The other one of these two tickets was before the Springfield Court of Appeals in Ferguson v. Missouri Pacific Railroad Company, 144 Mo. App. 262, 128 S. W. 799, to which we refer for further particulars.

The plaintiff, with her husband, left the train at Carthage without resistance because the conductor refused to carry them on those tickets. He stopped the train about 10 minutes at Carthage, and tried to get the agent at Webb City by telephone, but could not. He tried to get the agent at Carthage to issue another ticket, but did not succeed. He then offered to carry them to Nevada while he would continue to try to get it fixed up, but could offer no assurance of success, and Mr. Ferguson thought he was as far from home as he wanted to be under such circumstances. It was between 7 and 8 o'clock at night and dark, with a "cold sleety rain." When the train went on, there was no conveyance at the depot. They were strangers in Carthage, and started out to hunt the town; Mr. Ferguson carrying their two valises, and the plaintiff carrying the baby. They did not know the direction, but took the street that looked the most traveled, and came to a hotel, where they remained all night. They had given their tickets to the conductor, and the next morning they paid their hotel bill, $2.25, and bought new tickets, for which Mr. Ferguson paid $41.80, and went on their journey.

The conductor testified:

"I was satisfied that some one in the office at Webb City had sold them this ticket for a round trip ticket to Logan, Kan., and return. I knew I could not get the proper credit with my company for the going trip. I knew that there was nothing there for me to take to carry them on. Yes, sir; the only reason I could not carry them was because the rules of my company required me to reject a ticket of this kind."

The conductor was guilty of no discourtesy. His attitude is described by the plaintiff as follows:

"When he told me to get off, he looked kinda mad and kinda like he hated it, too."

The car was full of passengers, but this does not seem to have been what troubled her. About this she said:

"I think the attention of the people was attracted. Having to get off made me feel kinda nettled—to think I paid good money and had to get off."

They were delayed by the episode 24 hours in arriving at their destination.

The cause was tried by the court without the intervention of a jury. It refused a declaration of law upon the question of exemplary damages which was properly framed if the evidence was sufficient to authorize the submission of that issue. It declared the law to be that:

"There must not be considered any evidence on the part of plaintiff as to her time lost."

It also declared of its own motion that:

"Under the evidence the plaintiff is only entitled to receive as actual damages such sum as will reasonably compensate her for her trouble and inconvenience in being obliged to leave defendant's train."

It refused to declare for plaintiff that:

"She is entitled to such damages as will reasonably compensate her for the inconvenience and trouble and indignity and humiliation, if any, resulting to her on account of being ejected from defendant's train, if she was ejected from said train."

The court found for plaintiff, and assessed "her damages at $10, for which it rendered ,judgment, and she appeals on the sole ground that the court erred in the declarations given and refused on the question of the assessment of damages.

1. The first and most important question presented is whether or not a case was made authorizing the submission of the question of exemplary damages. To consider this we must refer to the facts upon which that issue of law depends.

The defendant, in its pleadings, stands behind its conductor. It denies that the plaintiff became a passenger by reason of the contract it had made with her, and states, in effect, that the conductor was only acting under its direction when he refused to carry her on the train. We may there ore eliminate the conductor as an instrument by which an honest mistake was made, and substitute the defendant itself, which, with full knowledge of all the facts, required the plaintiff to leave its train before arriving at her destination.

These facts are that at Webb City, before her train started, she entered into a contract in writing with the defendant, by which it agreed to carry her from that station to Logan, starting on that train, upon presentation of the contract "with coupons attached." On its face it purported to be in the form of an interline ticket to which any number of coupons to represent transportation on other than defendant's lines might be attached, but it said nothing about any coupon being required from Webb City to Logan, although she was required to keep the ticket in her Possession and to be identified by the agent at Logan before returning. That this ticket, as between plaintiff and defendant, was a valid and complete contract for that transportation, there can be no doubt. That the conductor knew it, he frankly stated in his testimony, but he further stated that be did not recognize and perform it because lie knew he could not get credit for it, and that he could not, the defendant admits in its pleadings. So it is in the position of having made the contract, received full payment for the service, refused to perform it, and, after having placed the plaintiff in an awkward position, refused to relieve her.

The question is whether these facts were sufficient to authorize the submission to the jury of the question of exemplary damages. In other words, do they constitute evidence of malice? It cannot be chimed that there is evidence of any ill will or personal desire to injure plaintiff on the part of the conductor, or that he did not act with courtesy and consideration toward her throughout the episode. When he told her to get off, he looked ...