Hays v. Houston G. N. R. R. Co.

• Decision Date: 01 January 1876
• Parties: F. M. HAYS v. THE HOUSTON G. N. R. R. Co.
• Court: Texas Supreme Court

46 Tex. 272

F. M. HAYS

v.THE HOUSTON G. N. R. R. Co.

Supreme Court of Texas.

1876.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

Suit by Hays against the Houston and Great Northern Railroad Company, to recover damages, claimed by him to be fifty thousand dollars, because of his alleged wrongful expulsion by a railroad conductor from one of the passenger trains of said company, on the 7th day of July, 1873, between Zavalla and the city of Tyler. Appellee denied the allegations of said petition, and pleaded legal justification for the act of his agent. Trial was had, and the jury, after being charged by the court, returned a verdict against the company and in favor of Hays, for one hundred dollars, actual damages, besides costs of suits, &c.; from which judgment Hays took this appeal.

On the 7th July, 1873, Hays was at Troup, and wished to go to Tyler, accompanied by his wife, five children, a nurse, and a lady friend of his family. The testimony shows (except that of Hays) that the regular fare between these points was one dollar for each person over twelve years old, fifty cents for each one between five and twelve, and no charge for children under five. The testimony of Mrs. Hays shows that five of the number were over twelve years, three between five and twelve, and one under five. On the morning of the 7th of July, Hays, with his family and friend, repaired to the depot, where they were invited into the ticket office--Hays was acquainted with the ticket agent--and then went to the ticket window and called for tickets. Mr. Ferris (the man in the office) inquired, “for all the crowd?” Hays says, “yes;” and began to enumerate them; but before he had finished, Ferris was called away. When he returned, Hays told him he had always paid four dollars for his family from there to Tyler, but there was then an additional person with his family. Ferris said he would only charge the same, when Hays told him, he ““wished to pay full fare.” Ferris said, “that is sufficient; you shall go through for that.” Hays then handed him five dollars, and received five tickets, and with his family and friend entered the car and took their seats. Soon after starting, the conductor came through the car, as usual, collecting tickets, when Hays handed him five tickets. The conductor took them; and hesitating a moment, said to him, “You will have to pay another fare.” Hays told him he had bought his tickets of the agent at Troup, and that he said they were sufficient. Conductor told him it was the agent's business to sell tickets, but the conductor's to collect the money; he “would have to pay another fare, or get off at Hill's station.” The conductor then walked off, and shortly afterwards the train stopped at a wood pile. While there, he again approached appellant, and told him he had come for the other fare; and in reply to Hays's response, “you have?” the conductor told him, yes; and he must pay it, or one of them must be put off. To this Hays replied, “We will see about that.” After the train started again, the conductor came to him the third time for the other fare, and asked him if he would pay it, when Hays replied, “no;” and the conductor put him off.

As to the manner of appellant's ejection, there is a conflict of testimony: the plaintiff, his wife, and lady friend testifying that he was pushed against a seat on the opposite side of the aisle, after being raised from his seat by the conductor, while the conductor and engineer say he was taken out by the conductor alone, and put off while the train was still--the conductor holding his hand until he stepped on the ground-- and that no more force was used than was necessary; and these are corroborated by the mail agent, who was on the train, and a passenger, who was sitting close by and witnessed the transaction. Appellant admitted that he made pretty stout resistance to being put off the train.

The injuries complained of were a bruise on the right thigh and one on the left hip, caused by his catching hold of the iron railing, and the tearing of his breeches. No witness testified to those injuries except himself and wife.

The testimony further shows that Ferris, the person from whom Hays purchased the tickets, was not the ticket agent, and had no authority from the railroad company to sell tickets. He was local freight agent at Troup, but on that morning had been requested by the ticket agent, Parks, to sell tickets for him. Parks was the ticket agent, but had no authority from the company to empower another to sell for him, and this was the only instance in which he had done so. Ferris paid over the money he received from Hays to Parks, but told him of no arrangement he had made with Hays, and Parks forwarded the money to the treasurer of the company, but with no report of the arrangement which Hays says he made with Ferris. The testimony further showed that ticket agents had no authority to pass persons over the road, except at regular fare; and that it was the duty of conductors to put all off the train who had neither tickets or pass, and who refused to pay their regular fare.

Jones & Henry, for appellant.--Corporations are liable to vindictive damages for the willful and malicious acts of their servants. (Passenger R. R. Co. v. Young, 8 Am. R., 79, 80; Bryant v. Rich, Ib., 451, note 456; Higgins v. W. T. & R. Co., 7 Am. R., 293; Jackson v. 2d Av. R. R. Co., 7 Am. R., 448.)

And the court so charged, but made the right of the plaintiff to recover them depend upon the payment of his fare--meaning full fare--or on his right to ride free; and charged that, if he was willfully and maliciously ejected at a place which was not a usual stopping place, he would be entitled to recover actual damages only, unless plaintiff had paid full fare or had a right to ride free.

This charge was erroneous, and no doubt controlled the amount of the verdict.

R. B. Hubbard, for appellee.--We admit that a conductor or servant of a corporation could only use such necessary force as would be required to effect the expulsion of a passenger, when such passenger was wrongfully on board, not having paid his fare. The question of exemplary or punitive damages, however, can never arise in any case, even when unnecessary force is used in expelling a passenger, provided the passenger is wrongfully on board. In such case, the jury can only consider the amount of actual damages sustained by the party expelled. (Coleman v. N. Y. and N. H. R. R. Co., 106 Mass., 160; also 19 Ohio, 157;53 N. Y., 25;19 Mich., 205;47 N. Y., 274;Sandford v. Eighth Avenue R. R. Co., 23 N. Y., 343; 7 Bosw., 122; Great Western R. R. Co. v. Miller, 19 Mich., 305;Barker v. N. Y. Central R. R. Co., 24 N. Y., 599;22 Barb., 130; Northern R. R. Co. v. Page, 33 How. Pr., 327; 26 and 38 Mo.; 37 Cal.; 53 N.Y.; 56 N. Y.; 19 Mich.; 11 Mich., 447.)

Stephen Reaves and Baker & Botts, also for appellee.

GOULD, ASSOCIATE JUSTICE.

Appellant brought this suit to recover damages for personal injuries received, and the violation of his rights as a passenger, in the alleged malicious, forcible, and wrongful act of defendant, by its agent, the conductor, in ejecting him from the cars. He claimed that he was rightfully on the cars; that the act of the conductor in expelling him was wrongful, was accomplished in a rude and insulting manner, and by personal violence, resulting in injuries to his clothing and bruises to his person, and was further aggravated by being done in the presence of, and to the great terror of plaintiff's wife and children, and by putting him off in the woods, and not at a usual stopping place. In an amended petition, he alleged that the defendant not only authorized the conductor to commit the grievances complained of, but did, after the commission thereof, ratify, confirm, justify, and adopt said acts.

Exceptions were taken and sustained to so much of the petition as set up the distress of the plaintiff's wife and children, because of his expulsion, and their belief at the time that he was seriously hurt. In addition to the general denial, there was a special answer, alleging that the plaintiff, with his wife, five children, a lady companion, and a servant, entered the cars, on the tacit condition that he would pay, when demanded, the usual rates of fare, of which public notice had been given, and of which he knew, amounting to six dollars, (or tickets;) that when the fare was properly demanded, he presented only five tickets, and refused to pay the additional fare due, asserting that he would pay no more, and that neither he nor any of his company would get off, unless put off by force; and that after repeated demands, the conductor, with the use of no more force than was necessary, and without any malice or oppression, laid hands on him and conducted him off the cars at a usual stopping place. The result of the trial was a verdict and judgment for the plaintiff for $100, actual damages.

The plaintiff moved for a new trial, on the ground that the damages allowed were too small; that the verdict should have been for exemplary damages; that the court erred in refusing instructions asked, and in the charge as given, and in giving in part a verbal preliminary charge, and also in the admission and exclusion of evidence. His motion being overruled, the plaintiff has brought the case here by appeal.

Evidently, the only questions that need be considered are those bearing on the amount of damages, and as it has not been argued here that this court should reverse the case, on the ground simply that the jury should have allowed larger or vindictive damages, it is only necessary to inquire whether the court committed any error affecting the amount of plaintiff's recovery.

There are nineteen assignments of error, but it is believed that the questions involved are really but few, and may be discussed and disposed of without attempting to follow their assignments. It appears by bill of exceptions, that after the...