Southern Pacific Co. v. Boyce

• Decision Date: 07 February 1924
• Docket Number: Civil 2108
• Citation: 26 Ariz. 162,223 P. 116
• Parties: SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. FOSTER BOYCE, Appellee
• Court: Arizona Supreme Court

223 P. 116

26 Ariz. 162

SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. FOSTER BOYCE, Appellee

Civil No. 2108

Supreme Court of Arizona

February 7, 1924

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.

Mr Francis M. Hartman, for Appellant.

Mr Thos. D. Molloy, for Appellee.

OPINION

McALISTER, C. J.

This appeal is prosecuted by the Southern Pacific Company, a corporation, for the purpose of obtaining from this court a review of a judgment of the superior court of Yuma county awarding damages in the sum of $865 to the plaintiff, Foster Boyce, for personal injuries alleged to have been received by him on the twenty-second day of January, 1922, as a result of his being ejected from one of defendant's passenger trains upon which he was riding as a passenger.

It appears from the amended complaint that on January 22, 1922 the plaintiff purchased at Yuma, Arizona, a ticket entitling him to transportation over defendant's railroad from Yuma, Arizona, to Colton, California, and that within a few minutes thereafter he boarded its passenger train No. 109 for the purpose of going to that city; that when said train reached a point about one-half mile northwesterly of Ogilby, California, and about 174 miles southeasterly of Colton, California, the defendant, through its officers, agents and employees in charge of said train -- "wrongfully, unlawfully, wantonly and maliciously, and with force and violence, ejected plaintiff from said train, while the same was in motion, and cast and threw the plaintiff onto the ground with great force and violence, and refused to permit him to ride further thereon; that by reason of said ejectment, and the force and violence so wrongfully, unlawfully, wantonly and maliciously used by the defendant, and his being cast onto the ground from said train with force and violence, as aforesaid, the plaintiff was severely bruised and injured about the body, and suffered serious and permanent injuries, internally, in the region of the spleen, kidneys and liver; and suffered great bodily pain and anguish of mind, shame and humiliation; and has at all times since suffered great bodily pain and suffering; and was delayed in his business and prevented from engaging in any gainful occupation for a period of three months from and after said ejectment, to his damage in the sum of $300; and was compelled to pay out and become liable for doctor's fees and medicine, and traveling expenses to consult doctors, in the sum of $300; all to plaintiff's great damage in the sum of $3,000."

Following a general denial, the answer alleges that the ticket purchased by plaintiff entitled him to ride over defendant's road from Yuma, Arizona, to Ogilby, California, a small station seventeen miles west of Yuma, and that its conductor so stated to plaintiff just after leaving Yuma when it was taken up; that the train stopped at Ogilby, but plaintiff did not get off there, and that after it had started from the station the conductor called plaintiff, who was standing on the rear end of the car, and notified him that Ogilby was his station and that they must get off, but that he refused and stated he was going through; that thereupon, as the train was moving out of the station at a speed of four or five miles per hour, the conductor reached up to pull the bell-cord to stop the train, when plaintiff voluntarily jumped to the ground, alighting upon his feet without being injured in any way, and walked back to the depot at Ogilby and represented to the defendant's agent there that he had been wrongfully and by force and violence ejected from the train after his ticket entitling him to ride from Yuma, Arizona, to Colton, California, had been taken up by the conductor, and as a result of such ejection that he had received severe personal injuries; that thereupon said agent sent a telegram to defendant's superintendent or chief train dispatcher at Los Angeles, California, telling him what plaintiff had said and that said officer wired the conductor on train No. 101, which was closely following 109, to

"Bring colored man named Foster Boyce Ogilby to Colton without transportation. This man off No. 109 at Ogilby thru mistake."

That these telegrams were both prompted by and sent as a result of the false and fraudulent representations made by plaintiff to defendant's agent at Ogilby, and that for the same reason defendant transported plaintiff from Ogilby to Colton without requiring him to pay therefor, and that the amount thereof, $7.22, is still due and owing. The prayer is that plaintiff take nothing and that defendant have judgment for $7.22, the fare, and costs.

At the conclusion of the evidence the court instructed the jury as to the law of the case, and the giving of certain of these instructions as well as the refusal to give others forms the basis of the fifteen errors assigned, but none of these, except those dealing with exemplary damages and the method of determining the amount of damages for injuries to health and body, have been argued by appellant. We will therefore treat the others as waived and consider only those appellant has discussed. The jury was told that --

If it believed from the "evidence that the of the plaintiff from the train was wanton and malicious, and was perpetrated in a rude manner and with unnecessary force, evincing an intent to wound and injure plaintiff's feelings and bring him into contempt and disgrace him in the estimation of the public, then the case is one justifying the imposition of what is known in the law as exemplary or vindictive damages, in addition to the actual damages of which I have heretofore instructed you. And in arriving at the amount of exemplary damages to be imposed, if any, you should take into consideration all the facts and circumstances and the position, character, and feelings of the plaintiff."

Appellant does not contend that exemplary damages cannot be awarded in this state, or that this instruction is not a correct statement of the law as to when they may be allowed, but urges that there is no evidence in this case justifying or warranting such an instruction, because it appears that if the conductor made a mistake in ejecting plaintiff from the train, it was in an honest belief that he did not have a ticket to Colton, and there is no evidence showing malice or bad motive, or the use of any violent or harsh language toward plaintiff. This necessitates a brief statement of the evidence bearing upon this phase of the case.

Plaintiff's testimony, so far as material, was this: He purchased in Yuma, Arizona, a ticket entitling him to ride over defendant's railroad from there to Colton, California, paying $9 therefor -- a five-dollar bill and four silver dollars -- and it was taken up by the conductor as they were going out of Yuma. As the train was leaving Ogilby, California, the first stop west of Yuma, plaintiff left his seat and went to the rear of the car to get a drink, and while there the conductor, Fitzgerald, came up, and the following conversation between them occurred:

Conductor: "Where you going? Give me your ticket."

Plaintiff: "I am going to Colton."

Conductor: "Give me your ticket."

Plaintiff: "I gave you my ticket this side of Yuma."

Conductor: "No, you didn't."

Plaintiff: "I did."

Conductor: "You didn't."

Plaintiff: "I did."

Conductor: "Pay your fare or get off this train. What you trying to do? Hold up this train?"

Plaintiff: "No, I paid my fare. I bought my ticket, and I can prove I bought my ticket. My suitcase is on the train. My place is on the train."

Conductor: "It isn't so. Get off this train. You got on this train right there."

Thereupon the conductor grabbed hold of plaintiff, shoved him toward the door, and then out and on to the ground, causing him to fall sideways while the train was moving, though he could not tell how fast, because he was addled, dizzy-headed, sick at the stomach, and the train out of sight when he came to himself. He then walked back to Ogilby, though so ill he could hardly get there, and told the agent what had happened and spoke of his suitcase, and asked him to "tell Commodore to take care of it; because I will be over there to-morrow." He remained at Ogilby until picked up by the next train which took him to Colton. There he was met by a railroad policeman and a doctor, who took him to the latter's office and gave him a slight examination. He returned to Yuma the next day and has not been able to work since, though prior thereto he made $65 per month all the time. The place where he was thrown off was out on the desert, but he could not say how far from Yuma.

Commodore Le Grande, a colored boy, eighteen years of age, testified that he and Boyce went to the depot together and both bought tickets, he purchasing two for Los Angeles -- one full-fare ticket for himself and a half-fare ticket for his eleven year old brother, and Boyce one to Colton for which he paid $9. The conductor took them up and gave him a hat check, but did not give one to Boyce, who rode in the seat with him and had his suitcase in the rack above them. At Ogilby Boyce left the seat to get a drink of water, and soon after he heard the conductor ask him for his ticket, and Boyce said: "I paid. I have got my ticket." And the conductor replied: "No. What are you doing? Trying to hold this train up?" About this time Boyce went off the train, but he did not know how. Soon afterward the conductor asked him if Boyce had a ticket, and he replied, "Yes." The suitcase was taken off at Colton.

A. J Tullus testified that he was a cook, and that Boyce had worked for him as a dishwasher and was industrious; the wages for dishwashers in that vicinity then were from $15 to...