Strull v. Louisville & N.R. Co.

Citation76 S.W. 181
PartiesSTRULL v. LOUISVILLE & N. R. CO.
Decision Date15 October 1903
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Green County.

"Not to be officially reported."

Action by Max Strull against the Louisville & Nashville Railroad Company. From a judgment granting insufficient relief plaintiff appeals. Reversed.

Noggle & Graham, for appellant.

W. C McChord and Edward W. Hines, for appellee.

NUNN J.

The appellant sued the appellee for damages in the sum of $500 alleging in substance, that he purchased a round-trip ticket which entitled him to a passage from Greensburg, Ky. to Louisville, Ky. and return; that he made the trip on the ticket to Louisville, and returned as far as Lebanon Junction, and there took another train of the appellee for his home in Greensburg, and on that train the conductor took up his ticket which entitled him to passage to Greensburg, and after passing the station of Campbellsville the appellee, by its agent and servant, the conductor, willfully, unlawfully, and wantonly demanded of the appellant further and additional fare before it would carry appellant to Greensburg, Ky. as it had contracted and agreed to do; that he notified the conductor that he had once paid his fare, and that he had surrendered his ticket to him after leaving Lebanon Junction, and refused to pay any further or additional fare, and appellee's conductor became abusive and insulting, accusing appellant, in the presence and hearing of other passengers on the train, of trying to cheat and defraud the appellee out of a fare from Campbellsville to Greensburg, and threatened to stop the train and put the appellant off; that, in order to prevent being further abused and insulted in the presence and hearing of other passengers on the train, and to prevent being put off of the train, he did, under protest, pay the conductor the further and additional fare to Greensburg, Ky.; that he was greatly insulted and humiliated by the unlawful, willful, and wanton conduct of appellee's conductor in charging him, in the hearing and presence of other passengers, with trying to cheat and defraud appellee out of a fare. The appellee answered, in the first paragraph alleging that appellant was not a resident of Green county, Ky. and that he resided in Jefferson county, and that the injuries complained of, if any, were received in Taylor county, and asked that appellant's action be dismissed. By the second paragraph of its answer it denied that its conductor charged the appellant with any intent to cheat or defraud the company out of a fare, or that its conductor abused him or wronged him in any way, but alleged that its conductor had made a mistake, for reasons set forth in its answer, and improperly collected the fare from appellant, and tendered the amount to the appellant in its answer. The issues were completed, the trial was had, and the evidence heard, whereupon the appellee moved the court to give a peremptory instruction to find for appellant 36 cents, the amount of the fare, and the court gave the instruction, and the jury returned a verdict in accordance therewith. The court thereupon rendered the following judgment: "It appearing to the court before the institution of this action defendant attempted to tender plaintiff thirty-six cents in full of his demands herein, and the court is of the opinion that the tender was not directed to plaintiff, and therefore not in fact a legal tender, but with the filing of its answer herein defendant tendered in court thirty-six cents in full of demand sued for, which plaintiff refused to accept. It is therefore adjudged that plaintiff recover of defendant his costs accrued up to the filing of defendant's answer, and it is adjudged that defendant recover of plaintiff its costs herein expended after the filing of its answer herein." From this judgment appellant has appealed.

As appears from the record, the evidence of appellant conduced to prove the allegations of his petition, and that he was a resident of Greensburg, Ky. and that the conductor, in the presence of other...

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2 cases
  • Weltner v. Thurmond
    • United States
    • Wyoming Supreme Court
    • December 24, 1908
    ... ... F. 359; In re. Currier Est. (Colo.) 74 P. 340; Boyd Co. v ... Arthur, (Ky.) 82 S.W. 613; Strull v. R. R. Co., ... (Ky.) 76 S.W. 181; In re. Sullivan Est., (Wash.) 78 P ... 945; Cobb v. Rhea, ... ...
  • Stephens v. Wilson
    • United States
    • Kentucky Court of Appeals
    • October 15, 1903

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