Trice v. Chesapeake & O. Ry. Co

• Decision Date: 27 March 1895
• Citation: 21 S.E. 1022,40 W.Va. 271
• Court: West Virginia Supreme Court
• Parties: TRICE . v. CHESAPEAKE & O. RY. CO.

21 S.E. 1022

40 W.Va. 271

TRICE .

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

March 27, 1895.

Ejection of Passenger — Mistake in Ticket by Agent—Damages.

1. By mistake, a ticket agent selling a mileage ticket good for one year stamps upon it, as the date of issue, 4th March, 1892, instead of 1893. The passenger tenders it on 24th April, 1893, in payment of fare, but it is refused, and he ejected for nonpayment of fare. The passenger can recover damages.

2. By mistake a ticket agent selling a mileage ticket good for one year from issue stamps upon it, as the date of issue, 4th March. 1892, instead of 1893, and after the figures 189-writes the figure 3. making the date of the expiration of the book 4th March, 1893, and then corrects the latter mistake by writing over the 3 the figure 4, making it read 1894, not correcting the 1892. On 24th April, 1893, the holder tenders this book in payment of fare, but it is rejected as out of date, and he is ejected from the train, after explaining to the collector that the agent had madethe mistake, and he had himself not altered the ticket, and asking that the collector wait until the train reached Huntington, where the book was sold, so that the collector would be satisfied that the book had not been fraudulently altered; and the collector made no inquiry at any of several telegraph stations of the railroad company as to it. The passenger can recover damages of the company.

3. Where the case is one of indeterminate damages, and the law gives no specific rule of compensation, the decision of the jury upon the amount of damages is generally conclusive, unless the amount is so large or small as to induce the belief that the jury was influenced by passion, partiality, corruption, or prejudice, or misled by some mistaken view of the case; but, if so excessive as to induce such belief, it will be set aside.

(Syllabus by the Court.)

Error to circuit court, Cabell county.

Action by R. C. Trice against the Chesapeake & Ohio Railway Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Simms & Enslow, for plaintiff in error.

E. W. Wilson, for defendant in error.

BRANNON, J. Trice sued the Chesapeake & Ohio Railway Company, in Cabell county, for damages for his ejectment from a train, and, on demurrer to evidence, recovered judgment for $550, and the defendant brought the case here. The facts, in short, are as follows: Trice boarded a passenger train on the 24th of April, 1893, at Charleston, to go to Huntington. He had a mileage ticket issued for 1, 000 miles, having remaining unused coupons for 40 miles' travel. These tickets are good for one year from issue. This one had stamped upon it as date of its issue March 4, 1892. For date of expiration there were printed on it the figures 189-, to be filled out with the particular year of issue; and there was inserted in ink, with the pen, the figure 3, making the date of expiration 4th March, 1893; but over the 3 was written with pen and ink the figure 4, making the expiration, considering the figure 4 as the right one, and disregarding the figure 3, 4th March, 1894. The question is, when was this ticket issued? When fare was demanded, Trice gave the collector this mileage ticket as paying 40 miles' fare, and 50 cents in money, which the collector accepted, and passed on, saying that there was some change coming to Trice, which he would hand him. The collector soon returned, saying to Trice that his ticket was not good, because out of date. When the dates on the ticket were called to his attention, Trice insisted that the ticket was good; that he had purchased it at the Huntington office 4th March, 1893, and that the stamp of 1892 as the date of purchase was a mistake in the agent who sold it to him; that, even though the stamp gave the date 1892 for its purchase, still the date of expiration on the ticket was 1894. Whereupon the collector said: "That won't help you any. That four has been made there since you bought the ticket You have changed that three to a four. I won't accept it." Trice still insisted upon the correctness and validity of the ticket, and said, if there was any mistake, it could be rectified at Huntington, and the collector would there find out that it was genuine and correct, to which the collector replied that he did not have to go to Huntington to ascertain about it, and that he would have to put Trice off, and told him to get off at next stop. Trice did not get off at the next stop, Spring Hill; and, after the train left Spring Hill, the collector said to Trice that he would have to pay fare or get off the train, and handed him back the mileage book and 50 cents. Then the conductor came to him, inspected the book, said the collector was right in rejecting It, and Trice would have to get off at St. Albans, which he did under protest, still demanding right of passage.

Was the mileage ticket still good for 40 miles' travel? That depends on whether it was issued in 1892 or 1893, and this depends on whether the stamp date, 4th March, 1892, was a mistake as to the year, or was right, and the figure 4, written over the figure 3 in its date of expiration, was wrongfully put there by forgery. Trice swears be purchased the ticket 4th March, 1893, and that he did not put the figure 4 in the date of expiration, but that the agent at Huntington did. There is no evidence to the contrary; and, even if we were not deciding the cast on a demurrer to evidence, we would be required to say that the facts are as Trice states them; but the more certainly and plainly that is our duty under principles governing us upon a demurrer to evidence. Where is the registry kept at the Huntington office, if any was kept, showing sales of mileage books by date and number? Where the agent who sold this book? They are absent, and their absence unaccounted for. No alteration in the ticket is shown. We must consequently say that the stamped date of issue is a mistake of the selling agent, as also the date of 1893 for expiration a mistake, and that he discovered it, and corrected it by writing the figure 4 over the figure 3 in date of expiration, and omitted to change the 1892 in date of issuance. It does seem strange that the selling agent would retain as late as 4th March, 1893, the old stamp of 1892, and still more that he would put 1893 in date of expiration if the book was issued in 1893, making two mistakes. Did this happen only in the case of this ticket? How did it happen? We do not know. But the evidence shows mistaken date of issuance. The collector could not say that the date 1892 in date of issue was...