Norfolk & W. R. Co v. Anderson

• Decision Date: 15 June 1893
• Citation: 17 S.E. 757,90 Va. 1
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. ANDERSON.

17 S.E. 757

90 Va. 1

NORFOLK & W. R. CO.

v.ANDERSON.

Supreme Court of Appeals of Virginia.

June 15, 1893.

Carriers — Ejection of Passengers—Construction of Contract — Exemplary Damages — When Allowable — Evidence — Waiver of Objection.

1. Plaintiff's ticket for passage over defendant railroad company's line provided that, when presented to the conductor for passage, plaintiff should sign his name thereto, and "otherwise identify" himself as the original purchaser of such ticket. Held that, where defendant's conductor refused plaintiff's offer to identify himself by signing the ticket, he had no right to require him to "otherwise identify" himself, and defendant was liable for the conductor's expulsion of plaintiff from the train for refusal to pay fare.

2. It was a further violation of the contract of passage that the conductor took up such ticket, the only stipulation for forfeiture being a presentation of the ticket for passage by a person other than the original purchaser.

3. The conductor's wrongful expulsion of plaintiff being accompanied with conduct grossly insulting to him, and evincing wanton malice, plaintiff was entitled, not only to actual, but also to exemplary damages, and a verdict of $2,000 was not excessive.

4. In an action to recover therefor, defendant objected to certain evidence, and the court held it was illegal, and that it would, in the trial, hear a motion to exclude it. Defendant took no exception, nor again called the court's attention thereto. Held a waiver of the objection.

Error to circuit court, Nausemond county.

Action by W. M. Anderson against the Norfolk & Western Railroad Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

The other facts fully appear in the following statement by LEWIS, P.:

Error to judgment of circuit court of Nansemond county, rendered April 11, 1892, in an action of trespass on the case, wherein W. M. Anderson was plaintiff, and the Norfolk & Western Railroad Company was defendant. The action was brought to recover damages for the alleged wrongful expulsion of the plaintiff from one of the defendant's passenger trains. There was a verdict and judgment for the plaintiff for $2,000 damages and costs. The declaration states, in substance, and the evidence shows, that on the 17th of March, 1890, the plaintiff purchased of the defendant company a 1, 000-mile or commutation ticket for travel on its road; that attached to the ticket, and forming part of it, were certain printed conditions, the first and second of which were in these words: "(1) That this ticket is good only for the person in whose name it is issued, and shall be taken up, and forfeited, if presented by any other person. (2) That when requested by the conductor, at the time the ticket is presented for passage, or the station baggage agent, when presented for the purpose of having baggage checked, I will sign my name, in the presence of either, on the back of the highest numbered coupons required for the trip, and will otherwise identify myself as the original purchaser of the ticket." At the bottom of the printed conditions (14 in number) the plaintiff was required to sign his name, which he did in the presence of the attesting witness, W. C. Masi, city ticket agent of the defendant company at Norfolk. On the 24th of May following the plaintiff took passage on one of the defendant's passenger trains, leaving Norfolk in the morning, intending to go to Suffolk, a point on the defendant's road about 20 miles west of Norfolk, and thence, that afternoon, to Richmond, via Peters-burgh. Before entering the train he presented his ticket, then containing unused coupons for 400 miles of travel, to the defendant's baggage agent, who, without raising any question as to his identity, checked his baggage through to Richmond. The plaintiff was at the time a traveling salesman for the A. B. C. Chemical Company. When the conductor came around to collect fares, after the train left Norfolk, the plaintiff presented him his ticket, from Which to extract the necessary coupons for travel between Norfolk and Suffolk. The conductor asked if the signature above mentioned was the plaintiff's, to which the latter replied that it was, but he refused to recognize the ticket unless the plaintiff would identify himself. The latter then offered to sign his name as stipulated, but the conductor refused to accept that as evidence of identity, saying to the plaintiff that if he signed his name he would, of course, sign the name that was on the ticket, and, besides that, he (the conductor) was no judge of handwriting. The plaintiff then remarked that he was a stranger in that section, that he knew no one on the train, and that he had no other means of identifying himself than by writing his name. The conductor still refused to accept such evidence, and inquired of the plaintiff if he had any letters on his person, addressed to himself. To this the plaintiff replied that he had not; that his name was in his baggage, which had been checked through to Richmond. The conductor then insisted that he go into the baggage car, and get out of his baggage any letters therein, which he declined to do, as unreasonable. The train was then running at its usual rate of speed. The conductor next inquired if he had in his pocket an order book, such as drummers usually carry, whereupon the plaintiff produced one, upon the fly leaf of which was dimly written, in pencil, "E. W. Wells, 248 Halifax St., " and on the same page, below Wells' name, was the following: "709 E. Clay St., Anderson, "—the latter being also written in pencil, and more dimly. It does not appear, however, that the conductor saw, or had his attention called to, the last name, or that plaintiff himself knew at the time it was there. In fact, he says he did not. The conductor, upon seeing Wells' name, inquired how it came to be there, to which the plaintiff answered that he had copied it from the city directory of Petersburgh, as the name of a person he wished to see, whereupon the conductor took up the plaintiff's ticket, and told him he would have to pay his fare. To this the latter replied that he would not pay fare, and demanded a receipt for his ticket, which the conductor at first refused to give, unless he would pay fare. Before he took up the ticket, the conductor said to the plaintiff: "If you will return this ticket to the scalper from whom you got it, he will, no doubt, refund you your money." Meanwhile the train was Hearing Suffolk. "When the train stopped at the depot, " says the plaintiff, in his testimony, " I kept my seat, which was next to the window, and when the train was about ready to start the conductor came to the window, and told me he could not carry me any further, and that I must get off. I told him I would not get off, and that I would stay on the train until I got a receipt for my ticket. He then told me, if I would come into the office in the depot, he would write me a receipt. I went in, and he wrote a receipt in the name of E. W. Wells, seeing which, I told him that was not my name. He answered that was the name he knew me by, and that he had every reason to believe it was my name. I then turned to the freight agent, telegraph operator, or some other employe, who was standing by, and asked him to witness that I protested that that was not my name, but he said he would have nothing to do with it. By that time the conductor had boarded the train, and the train pulled out." The plaintiff then goes on to say that he transacted his business that day in Suffolk, and took the evening train for Richmond, paying his fare. Soon after the plaintiff's arrival in Richmond the secretary and treasurer of the chemical company reported the occurrences first mentioned to the defendant's passenger agent in Richmond, who in turn communicated on the subject with the general passenger agent at Roanoke. These officers, however, although assured that the plaintiff's ticket had been unlawfully taken up, —that is that he was the bona fide purchaser of the ticket, as he had represented to the conductor, —refused to return it unless the plaintiff would surrender the conductor's receipts, which he decided to do. Indeed, the general passenger agent ultimately went further, for in his letter to plaintiff's attorney he wrote as follows: "Dear Sir: Yours of yesterday, requesting that thousand-mile ticket bearing name of W. M. Anderson, lifted by a conductor of this road, be sent to you, is received. I regret that I must decline this request. The conditions of the contract under which this ticket was sold having been violated, the right to use the same for transportation has been...