Moore v. Ohio River R. Co.
| Decision Date | 20 November 1895 |
| Citation | 41 W.Va. 160 |
| Parties | Moore v. Ohio River R. Co. |
| Court | West Virginia Supreme Court |
I. Railway Ticket Cancellation of Ticket.
Where a railroad company has adopted a rule that only one editorial pass shall issue to each paper that does its advertising, and the editor of a newspaper who has been doing such advertising, iu order to pay its indebtedness to a party who has just been discharged from his employ, falsely represents to such railroad company that said party is on bis editorial staff, and thus induces the said company to issue a 1, 000-mile ticket in favor of such party, if the par^y to whom it is so issued has notice of the fraud by which said ticket was obtained, the ticket would be invalid, and on discovering bueh fraud the company has the right to take up and cancel the ticket.
2. Railway Ticket Ejection of Passenger.
Where the party holding sui h ticket, after having used it in traveling several hundred miles, is warned by the conductor that the ticket is not good, and that he has been ordered to take it up, but does not then do so, and said party pays his fare on several trips, the conductor advising him to go to the railroad office and inquire about the ticket, and said party, neglecting to make any inquiry, although he has several opportunities of so doing, agon boards the train with the purpose of becoming a passenger, and offers said mileage ticket in payment of his fare, the conductor, upon the refusal of the party to pay his fare, may take up said ticket and eject him from the car, using no more force than is necessary for that purpose.
V. B. Archer for plaintiff in error: J. Passenger defined. 96 Pa. St. 267; 2 Am. & Eng. Ency. Law, 743.
II. Liability to passenger dependent on contract. 7 Am. &
Eng. Eney. Law, 742; 18 Am. & Eng. R. Cas. 170.
III. A railroad ticket is not a negotiable instrument. 42 Ohio St. 560.
IV. Exemplary damages in proper cases may be awarded in West Virginia for eviction of passenger from train. 34 W. Va 65; 36 W. Va 318; 39 W. Va. 477; 40 W. Va. 271.
V. Whether the case is one for compensatory or for exem-
plary damages, is for the court and not the jury. 34 Pa. St. 48; 119 Pa, St. 44, 45; 104 Pa, St. 306.
VI. Damages for injured, feelings can only be awarded, when physical pain is suffered. 90 Am. Dec. 332; 1 Pa. St. 190; 10 Pa. St. 145.
VII. Person who voluntarily submits to an assault can only recover compensatory damages. 20 Am. Rep. 328; 48 Am. Rep. 538; 2 Greenl.Ev. §85; Exodus, chap. 21, verses 18 and 19.
VIIT. Damages for mental suffering not allowed apart from physical injury as a distinct element of damages. 131 U. S. 26.
IX. The rule as to compensatory and, exemplary damages in federal courts. 147 U. S. 107.
X. Passenger can not increase his damages by refusal to leave car when ordered so to do. 34 Am. & Eng. R. Cas. 320; 15 Eed. Rep. 57; 86 X. Y. 301; 16 Am. & Eng. R. Cas. 386; 112 111. 296; 75 111. 125; 3 Wood Ry. Law, § 364.
XL In what cases and under what circumstances exemplary damages should be awarded, in. West Va. 35 W. Va. 588; 36 W. Va. 318; 39 W. Va 477; 40 W. Va. 271; Id. 246.
XII. The rule as to exemplary damages in other courts applied to case at bar. 1 Am. St. Rep. 608; 37 Am. & Eng. R. Cas. 166; 49 111. 241; 74 Am. Dec. 259; 50 Am. Dec. (note) 767; 18 Am. & Eng. R. Cas. 347; 9 Am. St, Rep. 769, note 777-8; 2 Am. Rep. 39; 34 Am. & Eng. R. Cases, 311.
XIII. Exemplary damages not allowed in absence of fraud, malice, or oppression. 46 Kan. 109, 581; 7 Am. & Eng. Ency. Law, 21, 22 and notes; 45 Minn. 53; 44 Minn. 454; 94 X. C. 318; 102 X. C. 59; 28 W. Va 782; 33 W. Va. 433.
XIV. Where statute gives exemplary damages. 40 W. Va. 246; 44 Fed. Rep. 248.
XV. Distinction between exemplary and compensatory damages. 12S Pa. St. 140; 23 Pa St. 523.
XVI. Comparison with Virginia cases. 82 Va. 250; 17 S. E. Rep. 757.
XVII. When an unlawful act may be made the basis for exemplary damages. -76 Va, 128; 21 How. 202; 116 U. S. 550; 122 U. S. 597; 147 U. S. 101; 12 S. E. Rep. 139; 11 S. E. Rep. 526.
XVIII. Persons evicted, can not increase damages by failing to take the necessary means to reach, destination. 47 Am. & Eng. R. Cas. 135.
XIX. Rule in North Carolina as to exemplary damages. 11 S. E. Rep. 526.
XX. Rule as to exemplary damages applies to corporcdions same as to individuals. 147 IT. S, 109.
XXI. Cases in West Virginia where right to exemplary damages denied. -28 W. Va. 732; 33 W. Va. 433.
XXII. In suits on contract damages never exemplary. 5 Am. & Eng. Ency. Law, 21 note 2.
XXIII. An act although wrongful not necessarily one which justifies awarding punitive or exemplary damages. 53 N. Y. 25; 56 X. Y. 295.
XXIV. The mere fact that the act was wrongful will not justify exemplary damages. 47 X. E. Rep. 312; 62 Am. Dec. 384; 47 Am. & Eng. R. Cas. 622.
XXV. Where the defendant has a reasonable foundation for his action, upon which he bases his act, which results in the injury, exemplary damages will not be awarded. 23 Pa. St. 523; 7 Car. & P. 621, 369 and??; 10 Ad. & Ellis, 117; 13 Pick. 503; 1 Johns. Cas. 116; 7 Cow. 22; 7 Wend. 142, 560.
XXVI. Cases in West Virginia where exemplary damages have been refused..28 W. Va. 732; 33 W. Ya. 433.
XXVII. Railroad, companies may make reasonable rules for the government and regulation of their business. 26 Am. &Eng R. Cas. 234; 18 Id. 316, 347; 9 Id. 345; 6 Id. 583; 2 Id. 280; 2 Wood's Railway Law, § 352.
Miller & White for defendant in error, cited 1 Bart. Law Pr. 393; 34 W. Va 67, 68, 72; 5 W. Va. 10; Ray, Keg. Imposed Duties, 4, 19; 35 W. Va. 588; 2 Wood, It. Law of Ry.
853, 868; 35 W. Va 220; 36 W. Va. 328; 2 Wood, Law of Ry. 1394; 2 Beech, Law of Ry. §§ 869, 870; Lawson Cont. Car. § 106; 4 Am. St. Rep. 539; 72 Am. Dec. 469; 45 Id. 190; 88 Id. 199; Ray, Keg. Imposed Duties, § 61; Lawson's Cont, Car. 455; 2 Wood, Law of Ry. § 352; Bish. Cont. §§ 648, 679; 35 Minn. 203; 28 Am. St, Rep. 858; 8 Am & Eng. Enc. Law, 626-27; 35 Md. 439, 452; 18 Am. St. Rep. 555; 49 Am. Rep. 25; 116 U. S. 599; 13 Gratt. 432, 436; 6 Id. 268; 4 IT. S. App. 259; 49 Fed Rep. 801; 6 IT. S. App, 307; 127 U. S. 390; 132 IT. S. 146; 50 Am. Rep. 310; 113 U. S. 50; 2 Pars. Cont, 812, 815; 20 N. E. Rep. 89; 12 S. E. Rep. 1063; 3 Southerland, Dam. §§ 95, 942; Wood, Mayne Darn. 50; 14 S. E. Rep. 950: 11 Gratt. 722; 36 W. Va. 324.
This was an action of trespass on the case brought in the Circuit Court of Wood county against the Ohio River Railroad Company by A. B. Moore, who claim*: That on the 29th day of October, 1891, he became a passenger upon one of the passenger trains of the defendant at the city of Parkersburg, to be carried thereby from said city of Parkersburg to the town of New Martinsville, and that he offered to pay his fare on said train by tendering to the conductor of said train a certain 1, 000-mile ticket, or book of mileage coupons, No. B39, which he purchased on the 2d day of January, 1891, from the said defendant, for a valuable consideration, which ticket entitled him to travel 1, 000 miles on the railway of the defendant between the 31st day of December, 1890, and the 31st day of December, 1891, which ticket entitled him to travel between the said city of Parkersburg and the said town of New Martinsville, as aforesaid, on the 29th day of October, 1891, and at all times until the expiration of said ticket. That it was the duty of the conductor of said train to receive and detach a sufficient number of mileage coupons therefrom to have paid the plaintiffs fare for his passage, of which coupons there remained in said book a much larger number than was necessary to have paid the said fare, yet the said conductor refused to receive said ticket, or detach said coupons for his fare, but took up said 1, 000 mile ticket, and demanded of the plaintiff that he should pay other and different fare, or be ejected from the said defendant's passenger car and train in which he was traveling as a passenger; and ihe plaintiff declining and refusing to leave said train, and insisting on his right to remain therein and to pay his fare with said 1, 000-mile ticket, the said defendant, by and through the conductor of said train, unlawfully and forcibly seized the plaintiff, and forcibly ejected and excluded the plaintiff, and with great force, and against the will and protest of the plaintiff, ejected him from said passenger car upon the ground, near the station of Waverly, in said county of Wood, and did not, as it was legally and in duty bound, carry the plaintiff from the city of Parkersbugh to the town of New Martinsville aforesaid, by means whereof he was exposed to the weather, and, being without money, was compelled to walk a great distance, to wit, from the station of Waverly to the town of Xew Martinsville, and was made sore and lame in his body and limbs, and did not reach his home, in the town of Xew Martinsville, until noon on the 31st day of October, 1891, and was greatly exposed to hunger, and he was greatly humiliated in his feelings and hurt in his pride, by being exposed to other passengers on the cars, and was prevented from reaching his business as he was obliged to do on the 29th of October, 1891, and as he would have done but for the grievances aforesaid; and being a publisher of a weekly newspaper in the town of Xew Martinsville, to wit, the Wetzel Republican, which is published on Thursday of each week, he was prevented on the 29th of October, 1891, being Thursday, by means of the grievances of the defendant aforesaid, from reaching his place of business, and from printing, issuing, publishing, and forwarding to his subscribers his said newspaper for that week; and divers reports were thereby caused to be circulated of and concern ing the plaintiff's said newspaper, "that it was dead," and thereby he was greatly vexed and harassed, and sustained great damages in his said business and publishing said newspaper, and in his business reputation and credit, and...
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