HALL V. MEMPRrS &C. R. CO.
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Hence, this question cannot be determined on demurrer.(c) But this does not apply to all regulations. There are certain regulations, the reasonableness of which is so obviolls that they may be held reasonable as mattcr of law. Indeed, there are regulations, the reasonableness of which is settled IJy a line of adjudications: Of this nature may be named the regulation of railway compllllies requiring passengers to purchase tic',ets before taking seats in their cars, or, in default of this, to pay extra fare.(d) The reasonableness of such a regulation is found in the fact that, without it, carriers could not protect themselves from being defrauded at will by train agents. So a regulation of a railway company prohibiting persons from riding OIl its freight trains unless they previously purchase tickets at a station, is held reasonable as matter of law.(e) § 3. EXCLUDING PERSONS OF EVIL REPUTE. In a recent decision of the learned and accomplished who wrote the opinion in the principal case, this question is considered with reference to the right of a carrier to exclude from his vehicles unchaste women. The learned judge charged the jury that, in determining whether the expulsion was lawful or not, the same principles were to be applied to women as to men; that the social penalties of excluding unchaste women from hotels, theaters, and other public places could not be imported intQ the law of common carriers; that the carrier is bound to carry the good, the bad. and the indifferent, and has nothing to do with the morals of his passengers, if their behavior be proper while traveling.Neither can he use the character for chastity of his female passengers as a basis for classification, so as to put all chaste women, or women who have the reputation of being chaste, into one car, and all unchaste women, or women who have the reputation of being unchaste, into another car. Such a regulation would be contrary to public policy, and unreasonable. It would put every woman purchasing a railroad ticket on trial before the conductor as her judge. and, in case of mistake, it would lead to breaches of the peace. It would practically exclude all sensible and sensitive women from traveling at aU, no matter how virtuous, for fear they might be put into, or occasionally occupy, the wrong car. The police power of the carrier, the learned judge, is a sufficient protection to the other passengers, and he can remove all persons, men or women, whose conduct at 'Ule time is annoying. or whose reputation ror misbehavior and indecent demeanor in public is 80 notoriously bad it furnishes a reasonable ground to believe that the person will be offensi ve or annoying to others traveling In the same car; and this is as tar as a carrier has any right to go. He can no more classify women according tg their chastity, or want of it, tllan he can so grade men. He accordreputation ingly charged the jury, in substance, that a female passenger traveling alone is entitled to ride in the ladies' car, notwithstanding an alleged want of chastity, if her behavior is ladylike and proper; IIond she cannot be compelled to accept a seat in another car offensivEJ to her of smoking and bad tilation.(a) (c) Brown v. Memphis_ etc., R. Co.lupra. (4) In Tow" thl. rell:ul"t1on 1. allowed by stnt. ute. Holfbl&uer v. Rl&\Iroad Co. 62 Iowa. 342.
(.) J",ne v. Railroad Co. 69 Tenn. (5 Lea,) 124; Infra, t,t: (4) BrQwn v. MemphIs, etc., R. Co. 6 Fed. Rep 499. WOo ' ,
76
FEDERAL BEPORTE&
There is no doubt of tIle propriety of these views. It is equally free from doubt that, within certain limits, it is within the power of the carrier to exclude from his vehicle persons of notoriously bad repute, who seek to go on board in an indecent condition, or for the purpose of plying some vocation injurious to the welfare of the other passengers. For instance, if a person were to present himself for carriage dressed in such a manner as to make an indecent exposure of his person, no court would hold the carrier liable in damages for refusing to carry him. According-Iy, it has been held that the conductor of a street-railway car may expel therefrom a per:lOn who, by reason of intoxication or otherwise, is in such a condition as to render it reasonably that by act or speech he will become offensive or annoying to other passengers, although he has not committed any act of offense or annoyance.(b) Hailway carriers may, in like manner, exclude from their trains gamblers or monte men, whose evident purpose in taking passage is to ply their vocations; though, if such persons have purchased their tickets, they cannot thereafter be refused passage without a return of the passage-money which they have paid.(c) On the other hand, if the carrier knowingly permit such persons to take passage on his vehicle. and if a minor is SWindled out of money by their gambling deVices, through the negligence or indifference of the carrier's servants, the carrier will be liable for the money so lost.(d) So, if his servants have power to prevent it, but, neglecting- their duty in this respect, they permit drunken or disorderly persons to come on board his vehicle and injure a passenger, he will be liable; but here, as in other cases, his liability is based on the principle of negligence; he is not an insurer of the passenger, and liable at all events.(e) So . a railway conductor may eject from a coach a passenger wbo uses grossly profane and obscene language in the presence of ladies; for such conduct, although provoked to it, works a forfeiture of his right to be carried.(1) ,4. REGULATION THAT PASSENGERs ON FREIGHT TRAINS )1UST PROCUHE TICKETS.
A regulation allowing persolls to ride upon freight trains, provided they will procure tickets before entering the cars, is a reasonable regulation ;(a) and where opportunity is afforded for the procuring of such tickets, and the passenger does not avail himself of it, or make a reasonable attempt to do so, and, in consequence thereof, is expelled from ,the train, he cannot recover damages.(bb) But where the company has been in the habit of allowing its conductors of freight trains to receive money from passengers, and has changed the rule, the public are entitled to notice of the change; and a passenger who has beeuin the habit of riding on the company's freight IllinoiS, etc., R. Co. v. Johnson, 67 Ill. 311!, 314; (b) Vinton V. Middlesex R. Co. 11 Allen. 304; Chicago; etc., R. Co. V. Randolph, 53 IJI.51O; S. C. Thomp. Car. Pass. 6; Mnrphy v. Union R. ',RailwaY' Co.v. Moore, 49 Tex. 31; Hazardv. Co. 118 .l\lass. 228; Pittsburgh, elc., R. co. V. Chicago, ctc., R Co. I Biss. 603; Mobile, etc., R. "'andyne, 57 Iud. &76. See, also, State v. Ross, 26 Co. v; McArtbur, 43 Miss. 160. A regulation Is N. J. L. 224 . a1so reasonable which provides that ouly those .(c) Thurston v. Union Pacific R. Co. 4 DIll. passengers shall be carried on freight tl'lLins who _Compare. Coppin T. Braithwaite, 8 Jur.87&. are provided with tickets of 8 particular descrip. (d) Smith v. Wilsou, 31 How. Pro 212. tion; as, for inslance, a round.trlp ticket, a (.) Pittsburgh, etc., R. Co. v. Hinds, 113 Pat St. thousand.mile ticket, or a pass. Faulkner v. 612; S. C. Thomp. Car. Pass. 29&. Obio. etc., R. Co. 66 Ind. 369. (I) Chicago. etc., R. Co. v. Griffin, 68 Ill. 499. (bb) Indlaoapolls, etc., R. Co. V. KenT.eol", 3 (a) ,Lane V. Railroad Co. 69 Tenn. (& Lea,) 124. Amer. III Eng. R. Cal. 467, (Sup. Ct. lnd.) 1> ..... gulatioll refusing to carry passengers OD frei'ght trainl altogether, Is alia reasonable.
lULL V. MEMPHIS .. O. B. 00.
'17
trains. and paying his fare in this way, who has not been falrly notified of the change, and who does not, in fact, know of it, cannot be expelled for non-eompliance with it without subjecting the company to liability for damages.(c) Under the circumstances of one case, it was held that putting up a notice of this change of rule at the stat!on house was not sUfficient.(d) And if a railway eompany, after having carried passengers upon its freight cars, adopt a regulation excluding them altogether, and a person, not knowing of such regUlation, purchases a ticket of a station agent, and receives from such agent an assurance that the ti0ket will entitle him to ride on a freight train, but, attempting to ride on the ticket, is nevertheless expelled from'the train by the conductor in consequence of Buch regulation, the paBsenger may, it has been held, recover exemplary damages from the company.(e) But where a railroad company enforces such a rule, it is under an obligation to the public to furnish facilities for the purchase of such tickets, and, to this end, it must have an agent to sell them at its regular station, and Buch agent must 'keep his office open for a reasonable time prior to the regulation time for the departure of such trains. It will not be permitted to complain of a violation of its rules caused by the negligence of its own agents. If, therefore, a passenger is prevented from purchasing Buch a ticket by the absence of the agent from the station, he may rightfully take passage on such a train without a ticket, on tendering the regular fare to the conductor, and his expulsion will be unlawful.(1) § 5. PENALTY FOR RIDING WITHOUT PAYING FARE. The English railway clauses consolidation act imposes a penalty upon any person who shall travel in any carriage of a railway company without having previously'paid the fare, and with intent to avoid the payment thereof;(a) which penalty is recoYerable in a summary proceeding before two justices of the peace,(b) and enforced by distress warrant.(cc) By other sections of the BamI' act, railway companies have, it seems, power to make by-laws to prevent pel'sonsfrom riding on their cars without paying fare, and from riding on cars'of a class supel;ior to that called for by their ticket.(dd)
§ 6.
STATUTORY REGULATIONS WITHOUT EXTRATERRITORIAL FORCE.
A
statute ofa state which attempts to prescribe a regulation for a railway company extending another state, is inoperative beyond the limits of the . state whose legislature has passell the act. The obvious reason is that the police regulations of the states have no extratert:itorial force. But there is a further reason. Congress alone has power to regulate commerce bet:ween the states and with foreign countries; and such an act )Vould, therefore, in so far as it operates beyond the limits .of the particular state, be in contravelition·of . the federal constitution.(aa) It was therefore held, under the statute' of (c) Lanev. Railroad Co. 69 Tenn, (5 Lea.) 124 Lake Shore, etc., R. CII. V. Greenwood, 79 Pa.. St.
373. (4) Lake Sbore, etc., R. Co. I. Greenwood, anpr·. (.) Kanu8 PacUlc R. Co. v. Xan. 523. (I) Chicago, etc·· 'R. Co. v. Flagg, 43 Ill. SGtl ·lImol. Cent. R. Co. v. John,on, 67 111. 312; St. LOUIs, etc. R. Co. v. Mfrtle, 61 Ind. 6&6.
(II) Act 8 Vlet·.c. 20,' 103. 8ellReg. T. Plgot, 8Q. B.Dlv. 151. (6) Id. 1145. (cc) Id. U4S. (44) 101.111013,109. &!e Dy.sOlt v.London."e.. R. Co. 7 Q. B. Dlv. 32; Sannder. v. Bontheaaterll R. Co. 6 Q. B. DiT. 456; WatsOn v. LoJIdoll, 'et... R. Co. 4 C, p.· Dly.ltS. (III) Hall v. De Culr, 96 U. S. 4lIi
REPORTE&
Malne;(b) which declares that the bolder, of a railroad ticket shall have the right to stop over at any of the stations along the line of the road, and that it shall be good for a passage for six years from the time it was first used, that where the plaintiff, who had bought a ticket from Portland to Montreal which contained the words ., good onlyfor a continuous trip within two days from this date." was put off the train in Canada more than two days after date of the ticket. he could not recover damages.(c) II. As to the Contract of Carriage.
§ 7. GER.
EFFEOT OF DECLARATIONS OF THE COMPANY'S AGENT TO PASSEN-
There are cases where the declarations of the station agent of the company. or of its train conductor, are beld admissible, although contrary to the mles of the company, or to what appears upon the face of the ticket which the passenger bas purchased. Indeed, tbe contrary rule has so little practical sellse to support it, and proceeds in such obvious disregard of the rights of the traveling public, that it is a wonder how any court ever came to to it. The ticket agent of a railway company is appointed to give information to the traveling public about the rates and conditions of travel. To say that the traveling public are to be bound, in all cases, by what appears on the face of a ticket which is purchased, is unreasonable. The mass of the traveling pUblic are ignorant persons. Many of them are women. and even children, without discretion enough to judge in such matters. Many of them cannot read the language. Most of them would confide in a statement deliberately made by a. station agent as to what tbe train conductors of the company would do in case a particular ticket were purchased and presented to them. Now, a person presents himself at a railway ticket office and as!{s for a ticket to a distant place. and tells the agent that he wishes to stop over at an intermediate place, and the agent sells him a ticket on which is the recital, "Good 'for thIS day only." The passenger, acting on the promise of the agent, stops. off,and, when he undertakes to resume his journey, is informed that he must pay the additional fare or leave the train. Will any fair-minded person say that a fraud has not been perpetrated upon him ? Ordinary persons are bound by the acts of their agents in waiving the written conditions in contracts. Why is it that a railroad company should receive special favors at the hands. of, the law in this particular? Why should a doubtful point of law be so con· struedas to work a forfeiture of the rights of the traveler, and to permit the carrier to retain his money without giVing bim an equivalent therefor? . On this SUbject the supreme judicial court of Maine has made the follOWing. judicious observations: "Upon the plaintiff's ticket we find the indorsement 'good for th.1s day only.' The fact that he accepted and prodnced It as proof of his right to apassage would certainly be'primalacie evidence of his right to a passage on .the day or' its date alone, and possibly he would not be permitted to deny that he was bound by that indorsement, unless he could show that his assent had been, withheld with the knowledge and consent of the company. This he attempts to do by showing just what contract was made,0 with the, ticket agent Parls. But it is said· that this agent had no , anthority to change any of the rules of the company, and th.erefore his acts< (b)
Me. St. 1871, c. 223.,
Cutl,enter v. Grund Trunk R. Co. 7l! Me. 388.,
HALL ,V. MEMPHIS & C. B. CO.
79
or statements lipon this not admissible. It may be conceded that this or any other agent had no' authority to changeora1)rogate any rule es· tablished by the company; but the consequences claimed will by no mean!! ' follow. He was placed there for the purpose of selling tickets,and,itmaybe admitted, such tickets as will secure a passage in accordance with the rules of the company. The plaintiff desired to purchase just such a ticket. He was ignorant of the rules of the company. but wished to go over one portion of the road one day and another portion the next day. TlJ.e make a part of the contract. It seems that befote this the conductor had been permitted to give' stop-over checks.' This custom had been abrogated but a few days preViOUS, of which, so far as appears, no notice bad been given. This is the very point UpOIl which the plaintiff desires information. To whom shall he go to obtain it? To whom can he go but to the person appointed by the com· pany for the purpose of giving such information, and selling the proper tickets? To that person he does go, and is informed that the custom of giving stop-over checks still continues; and that it is necessary to purchase but one ticket. Relying upon this information, as he was justified in doing, he purchased his ticket and paid the fare demanded for the whole distance. The real contract between the plaintiff and the ticket agent was made before the ticket was seen. The plaintiff paid his money upon the statement of the agent, and not upon any indorsement upon the ticket. He took the ticket, not as expressing a contract, but as proof of the contract he had already made with the agent. He had neither seen 110r assented to the indorsement, 'nor' was he asked to assent to it. As between the plaintiff and agent the contract was definite, with no misunderstanding or suggestion of it. Under that contract the plaintiff commences his journey, and, on the first day asks for his , stop-over check,' and is informed by the conductor, not that his ticket is not sufficient, or in any way different from those preViously issued, but that his orders were not to ¢ ve out any more 'stop-over checks.' Still he was permitted to retain his ticket, encouraged to expect that he would be permitted to complete his passage according to his understanding of the contract. On the next day, however, his ticket was refused, and, upon demand being made, he refused to pay a second fare, whereupon he was expelled from the cars. The conductor acted in obedience to orders from his superiors ; the plaintiff, in obedience to information he had received from the ticket agent and upon· which he had paid his money; surely, then, he was not in thewrong.Bllt it is said the company were not bound by tit!' contracts ofits agent" Admit it. The conductor had proof from the ticket that the fare had been paid for the whole distance, and, from the statements of the plaintiff,' which he had no,reason to doubt, and which were continued by the custom so lately 'abrogated, that he had paid it upon the representations of the agent that the ticket would carry him through. If, under these circumstances, the companY,throughtlte conductor, would repudiate or the contract, the least they could do would be to pay back the surplus money that they had receiVed, or deduct it from the fare claimed, neither of which was done, or offered to be done; and this they were legally bound to do before refusing to execute the contract made by their agent, even if they were not uound byit."(ai (a) Burnham v. G. T. Ry. Co. 63 Me, 298,302.
80
FEDERAL REPORTER.
In like manner, where a person purchased of the agent of a railway company a ticket sold at reduced rates to persons intending to purchase lands of the company, called" a land-exploring ticket," which ticket embodied the terms of a special contract to be signed by the purchaser of the ticket, the fact that the purchaser had not signed the ticket would not authorize an agent of the company to refuse to honor the ticll:et; since it was the duty of the agent selling the ticket to require the signature of the purchaser. The holder of the ticket could not be affected by the neglect of the company's agent in this particular, nor could the company plead his default, when sued for a breach of the contract named in the ticket.(b) So, a steam-ship company forwarded passengers from Hamburg to AmerIca, partly by connecting lines. Its passenger agent at Hamburg, who was also agent for other lines of steamers, made verbal representations to the plaintiff that the company would be responsible for his baggage in the hands of connecting lines, as well as in its ownhallds. The plaintiff purchased a passage ticket on the faith of these representations. His trunk was lost by one of the connecting lines. It was held that the company selliug the ticket was liable for the loss, and that it was no defense to show that thA agent, in making such representations, exceeded his instructions.(c) But it 1ms been held, in accordance with the view of the learned judge in the principal case, that while the company may be liable for a breach of the contract' embodted in the agent's representations, on the faith of which the passenger has paid his money, yet this will not justify the passenger, on learning that the agent exceeded his instructions; in insisting upon being expelled from the train, in order to make his expulsion a ground for recovering enhanced damages. Thus, in the view of the supreme court of Michigan, passengers may rightfully rely upon information given by station agents of the companyas to the particular trains on which they will be allowed to travel on a coupon ticket; but if t4e information thus given is erroneous, so that th@ passenger finds himself on a train which does not stop at the desired point, he must, upon being advised of that fact by the conductor, get off at thB preceding station; he cannot remain upon thE:. train if it has gone beyond the point where he desired to get off, and to which his ticket entitled him to ride, provided he had got upon the train which, according to its schedule, stopped at that point, and refuse to pay fare, and compel the conductor, acting under the rules of the company, to put him off, and then seek redress in damages. The safety of the public requires that rail way trains sllould be run according to fixed regulations and schedules, and when the passenger discovers that the agent at the station has given him erroneous information, he must act reasonably; he cannot compel the conductor to depart from the schedule upon which he is required to run his train, merely by informing him that the station agent has said that the train would stop at a particular place; but he must either get off before the train reaches the station in question, or go on to a succeeding station, paying the additional fal'e, and then seek his redress in damages for the failure of the company to tl'alisport him according to the representations of its agent. He cannot recover for the additional damages which (&) Gregory v. Railroad Co. 10 Neb. 250.
(_) Maskos v. American Steam-ship Lo,ll Fed. Rep. 698.
HALL t7. IIEMPIDS & O. B. 00.
81
he causes to himself by his own voluntary act; he cannot, by insisting upon remaining upon the train without paying fare. in violation of what he learns is the rule upon which the conductor is required to run his train, subject himself to forcible expulsion from the train, and then recover damages for the force used.(d) A case in New York proceeds on substantially the same grounds. A\passenger having purchased a ticket for L., told the ticket agent what train he wished to take, and was directed to take a particular train. He followed this direction; but the train which he took, after running 150 miles, deflected to a branch road, which did not pass through, but was followed an hour later by a train which did pass through, that place. It was held that if, on the arrival of the train at the point of deflection, notice was given that the passengers for L. must change cars, in such a way that passengers of ordinary intelligence and understanding, making proper use of their faculties, could h-ear it and understand it, the plaintiff was wrongfully on the cars after they left that point; and if he was carried past the point of divergence without fault on his part, but was apprised of his error, and requested to take a return train, upon which he would have been carried back free in season to have reached the train which would have carried him to L. without delay, his refusal to do so, and his persisting in remaining on the wrong train, rendered him liable to expulsion as a trespasser.(e) On the contrary, it has been held in Jersey that a passenger cannot rightfully rely upon the assurance given him by a train conductor, contrary to the purport of his ticket, that it will entitle him to stop over and resume his joarney, although the conductor, in earnest of what he says, puts his initials upon the ticket; and where, in such a case, it appeared that only train agents had the power to modify the statements made on the tickets themselves, it was held that the passenger who had received and acted upon such information, and had subsequently been put off the train by a subsequent conductor, had no cause of action against the company.(f)
§ 8. CARRIER, HOW FAR BOUND BY STATElIlENTS OF TICKET. On the other hand, the carrier is bound to make good what the tieket imports on its face, and the passenger is not bound by any rule or usage of the company not ISO expressed, limiting the ticket, unless he has notice of the same. Thus, in a reeent case, it appeared that the plaintiff, having paid for his passage over the defendant's route of street railway, was given, at an intermediate point therein, in return for an additional sum paid by him, a ticket on which were these words: "Third-avenue Railroad Company. Good only from Sixty-fifth street up to Yorkville and Harlem for a continuous ride. By order of the President." The ticket was indorsed, "Ticket check, July 6th, 1878." The plaintiff did not then use the ticket, but afterwards, on the same day, he entered one of the defendant's cars below and paid fare to such intermediate point, and, at a place above said point, tendered the conductor the ticket, which (01) Lake Shore, etc., R. Co. v. Pierce, 47 Mich. 277; 8. C. 3 Amer·· Eng. R. Ca·. 3tO. (.) Barker Y. New York Central R. Co. 24 N. Y. (n Petrie Y. P·· R. Co. 42 N. I. L. 449; S.Q 1 Amer." Eng. R. Cu. aaa.
609.
v.15,no.1-6
82
was not accepted, and, on his refusal again to pay fare.. was ejected from the car. It was held that, in the absence of knowledge by the plaintiff of any rul':! limiting· his rights lInder said ticltet, the company was liable for the above act of its servant.(a) So, where a railway company had a rule which restricted to certain special trains the holders of a particular class of tickets, which tickets, nevertheless, purported to entitle the holder to passage on allY regular trai n, it was held that the company could not rightfully expel from a regular train the holder of a ticket taking passage thereon, unless he had notice of the rule; and, upon the question whether he had such notice, evidence was admissible that the person of whom he bought the ticket told him that it would entitle him to ride on the train from which he was expelled, although the seller was not the agent of the corporation.(b) Of course, this applies only in cases where the statements of the ticket are explicit. A railway ticket is ordinarily a mere token of the fact that the holder Or some other person has paid to the company issuing it the sum of money which entitles the holder to ride from a point named to a point named within the dates named.* There may be outside of the ticket, in particular cases, an arrangement advertised by the company, under which the ticket is is:lUed, which will limit the terms of the ticket itself. Thus, a railroad company got up a cheap excursion over its road from Dexter to Belfast. It hired .. band of mUSIC to accompany it, paying each member thereof $25, and agreeing to give him a ticket for a lady free of charge. One member of the band did not bring a lady. but brought his brother. a minor. The boy somehow got one of these tickets intended for the ladies who should thus accompany the members of the band. This ticket did not specify that it was for a lady, but simply read: .. Maine Central R. R, July 30,.1877. Dexter." It was hel(l that this ticket did not entitle the boy to ride to Belfast without paying fare.(c)
§ 9. ASSIGNABILITY OF RAILROAD TICKETS. As stated above, arailroad ticket is not ordinarily a complete contract to carry; it is looked upon either ltS a receipt for passage or as a token which, wh'3n presented by the buyer to the proper agent of the cornpallY over whose road it is issued, indicates to the latter that the person presenting it is entitled to be carried from and to the places named therein.(aa) This ticket is ordinarily assignable by delivery, so as to pass to another holder the rights of the original purchaser, as against the company issuing it, or against the company on whose authorit)· it may have been issued by another company. If such a ticket is dishonored, one who has purchased it of a passenger has the same right of action against the company, by or for whom it was thusissned, which the original purchaser would have had. Thus, where tickets were issued by the authority of the defendant company, over its line and a connecting line. 'to a point beyond its own terminus, for the purpose of promoting travel over its own line, and the (a) .M"M"hon v. Thir,] Ave. R. Co. 41 N. Y. Snp. (Jane. & S.) 2R2 (b) "uroney v. Old Colony, etc" R. Co. 106 lr13. *See next section. «(') Cr' ,hy v, Maine Central R. Co. G9 Me, 418. (00) Qnimhy v. Vanderhilt. 17 N. Y. 306: Hen. del'lSOn v. SlCVCllSlHl, L. H. 2" .\pp, 470 per 1
Ld. Hutherley; Rawson v. Pa. R. Co. 48 N. Y 212; Klmot'e v. Sllnd., 55 N. Y. 512,516; John'on v. Concord R. Co. 46 N. Y. 213; Gordon v. MunChester, etc., R. Co. 52 N. H. 596; Stnte v. Over. ton. 21 N. J. L, 435,438; Barker v. Coffin, 31 Barb. 51;\).
BALL
v.
MEMPHIS &C. B. 00.
83
connecting line refused to honor them, it was held that a." ticket broker" who had purchased them from the passengers who could not use them for the reason named, could maintain an action against the company by whose authority they were thus issued, for the proportion of the passage money which they represented. (b) § 10. COMMUTATION TICKETS ISSUED TO PARTICULAR PERSONS. Railroad companies frequently issue tickets at reduced rates to persons living on the line of their roads, in the vicinity of cities, in which such persons transact their business, good for a prescribed period of time. These tickets are issued to the particular person, and embody the terms of a special contract with him, to the' effect that the ticket shall be forfeited if found in the hands of any other person. Where snch a ticket contained the stipulation, " If found in the hands of anyone but the party in whose name it is issued, this ticket will be forfeited and taken up," it was held that it might be taken up by the conductor of the company issningit, even when tendered by the party to whom it had been msued, if, in fact, it had been used by some other person.(a) But the holder of such a ticket is not, it seems, bound at his peril to see that no other person gets it and uses it. .. There are," says the Maryland court, "circumstances under which the Use of the ticket by another than the person to whom it was issued would not have the effect of its forfeiture,-where, for example, it had been taken from him by force or violence, and some means against which he could not have reasonably guarded; but he cannot be ex. cused if he has been gnilty of negligence or a want of due care. From the character of the ticket, and its liability to be used by another in fraud of the agreement that it is to be used only by the person to whom issued, the implied obligation rested upon him when he accepted it from the company to keep it with due and proper care. If, from his negligence, it came into the hands of another, and was fraudulently used upon the company's road, he' is just as amenable to its forfeiture as if it had been used with his assent."(bb) In England, railroad companies sOPletimes exact a deposit from persons purchasing such tickets, to he forfeited on certain conditions. The courts of that countr.r seem disposed to constr.ue the contract embraced in such ticket strictly, and not to relieve against the forfeiture; for they regard a strict compliance with the conditions as being of very great importance to the railway companies in the transaction of their business, and of little importance to each particular passenger,-the deposit being generally small, say 10 shillings. Hence, where one of the conditionsof such lit ticket was that it should be delivered up to the company "on the day after expiry," the court refused to extend this lallguag.e 110 as to make it mean that the ticket should be delivered up within a reasonable time after expiry.(c.) § 11. SPECIAL TICKET OBTAINED THROUGH FRAUD OF PASSENGER. The rule that a person who has been induced through fraud to enter into a contract cannot rescind the contract and at the same time keep the.consideration, (b) Hodson v. KanS08 Paclnc R. Co. 9 Fed. Rep. 879. Tbe bllilyof the ticket torned on the proYlsions of a stntute relating to the nSR'gn. m,,"t of choRes In .etlon, wblch. It I. presumed has a coullterpal·t ill mosL of the st"tes. (a) Freidenrlcb V. Baltimore, etc., R. Co. 63 Md. 201. (bb) Id. (c) Oooper v. I;.ondon, etc., R. Co.4 E1Cb, Div.
88.
FEDERAL BEPORTER. is a familiar one. The application of this rule to contracts made by agents is also well settled. Such a COil tract is not void, but voidable at the election of the principal, provided the election is made within a reasonable time after the discovery flf the fraud. He may reject or ratify it, but he cannot ratify it in part and reject it in part. He cannot ratify it in so far as it is beneficial to him and reject it in so far as it is prejudicial to him. He cannot reject it and, at the same time, keep the consideration. This rule, of course, applies to the case where a person, through a fraud practiced upon the agent of a railway company, procures from the agent of the company a special ticket sold by the company at a reduced rate. Another agent of the company, on presentation of the ticket, cannot, on discovery of the fraud, refuse to honor the ticket without tendering to the hc,lder the purchase money. or so mUCh of the same as is unearned. Such a refusal will give the holder of the ticket a cause of action against the company.(d.) § 12. TICKETS ISSUED BY AGENTS OF OTHER COMPANIES. There seems to be a custom among connecting railroad companies in the United States to issue what are termed "coupon tickets" over each other's roads. Such a custom has been proved in cases which have come under the writer's cognizance, one of which is a recent case in Texas.(a) What the rights of the holder of a ticket issued in accordance with such a custom would be, it is not proposed now to discuss. It is supposed that if the custom had come to be a matter of public knowledge, and well recognized, a company refusing to honor a ticket, one of the coupons of which called for a passage over its road, would subject itself to an action. But if the ticket is not issued in accordance with the custom, clearly the holder of it has no action agninst a company, other than the one whose agent issued it. for refusing to honor it, unless it is shown that the agent bad express authority from such company to issue it. It is said, in substance, that the agent of one railroad company thus issuing tlekets over other roads, in accordance with such a custom, would, at most, stand in the position of a special agent for the other companies. He would not be their .general agent in the sense which would make them liable for his reprp-sentations and for his acts, done within the apparent scope of his authority. person purchasing the ticket of him would act at his peril. The scope of his agency would be limited by the custom; and if the ticket did not conform to the custom,no action would lie against another company for refusing to honor it.(b) § 13. "NOT GOOD IF DETACHED. Coupon tickets, issued for a continuous passage over connecting lines, generally, if not universally, contain upon each coupon the legend, "Not good if detached," No action lies against a railroad which contains this recital, and company for refusing to honor a coupon which, when presented to the conductor, is detached from its stub; and this is so, although the coupon may have been sold to the holder, thus detached, by the agent of a oonnecting company.(c) 14. RIGHTS OF PASSENGER ON TRAIN WHICH DOES NOT STOP AT THE STATION CALLED FOR BY HIS l'ICKET. In the ausence of a Iltatutory provis(d) Gregory v.Railroad Co. 10 Neb, 250. (a) Houslon, etc" R. Co. v. F01'd. 63 'l'ex. (6) Id.
(c) Houston, etc., R. Co.
T.
Ford, 63 Tex. <164.
HALL V. MEMPHIS & C. R. 00.
85
ion to the contrary, a railway company may, for the benefit of its through travelers, and for the purpose of attaining speed in the conveying of mails and express matter, adopt a regulation that a certain train or trains of passenger cars running regularly on its road shall not stop at designated stations or places; and one traveling as a passenger on such road is bound to inquire whether the train upon which he takes passage stops at the station or place to which he is going.(a) And, ill the absence of such a statutory provision, where the conductor of a road which has made such a regulation finds, after the train has started, a passenger who holds a ticket for a station at which the train does not stop, and the passenger is unwilling to go to a station at which the train does stop, he may, in a proper manner, be removed from the train.(b) .But the power of a railroad company to adopt or enforce such a regulation is subject to legislative contro1.(c) And where there is a statute requiring all passenger trains to stop on arrival at anJ' municipal corporation on the line of the railway, having·a given population, any persoll may purchase a ticket for such a city or town, and may claim the right to ride thereto and be lHlt off thereat, on any passenger train which the company may run. A notice printed on a ticket so purchased thll.t particular trains do not stop at such a place, is of no binding force as against the passenger.(d) It could not possibly impose upon him a greater obligation than would be imposed upon him by a special contract entered into between him and the company, that he should not be entitled to ride upon a particular train j and such a contract would be of no binding lorc6, because it would be in contravention of a statute passed on considerations of the public good, and hence illegal.(e) So far as a ticket containing such a Hotice may be held to embody the terms of a contract, it is subject to the rule that where a contract contains several covenants, some of which are in contravention of law, those which are lawful will be held valid, and those which are unlawful may be disregarded.(f) III. As to the Expulsion and Detention of Passengers.
§ 15. UNDER WHAT CIRCUlIISTANCES THE CARRIER WILL BE LIABLE FOR 'I'HE ACT OF HIS SERVANT IN WRONGI<'ULLY EXPELLING PASSENGER. In one of the most recent contributions to the law on this subject, the following propositions are said to have been finally and firmly esta1JlishtYl: (1) Th,lt whether a wrongful act done by a servant of a rail way company, not entirely inconsistent \\' ith the nature of his employment, was done by him in pursuance of his employment, and to serve the interest of his mnployer, or wickedly and maliciously, out of his own personal spite, is always a question for the jury. (2) That where the jury find such an act to have been done in pursu(a) PlI. R. Co. v. Wentz, 37 Ohio St. 333, 337; Pittsburgh, etc., R. Co. v. Nuzum, 60 Ind. 141; Ohio, etc., R. Co. v. Applewhite. 52 Ind. 640; Ohto, etc., R. Co. V. Swarthout,67 Ind. 667. (6) Pa.. R. Co. v·. Wentz, 37 Ohio St. 333, 337. (c) Id.; citing Com. v. Ellstern R. Co. 103 Mass. 254; Shlelds v. State. 26 Obio St. 86; S. C. 95 U. S. 319; Stota v. New Haven, etc. R. Co. 43 Conn. 3!\1; New'Ho",en, etc.,R Co. v.State,44 Conn. 376; Pierce, RaUr. (Ed. 1881,) 460 j Const. Ohio, art. 13. 12. (d) Railroad Co. v. Campbell, 36 Oblo St. 647. (e) Pat R. Co. v. Wentz, 37 Ohio St. 333, 338. See Leake, Cant. 723; Spurgeon v. McElwain, 6 Ohio, 442; State v. Findley, 10 Ohio, 51; Bloom v. Richards,2 Ohio St. 281; Huber v. GermanCou. 16 Ohio St. 371 ; Delaware Co. v. Audrews, lS·0bio 8t. 49; Hooker v. De Palos, 23 Ohio St. 251. (1) Railroad CO. V. Wentz. 37 Ohio St. 333, 339; citing Plgot's CaRe, 11 Coke, 27b; Pollock, Cant. (Wald's c. 6.
86
ance of the servant's employment, and to serve the interests of his employer, the employer is liable.(a) In affirming this judgment, the rule is peFhaps more clearly stated by tlie New York court of appeals. A boy eight years of age, attempting to steal a ride upon the platform of the defendant's car, had been kicked off by the conductor or, by a brakeman, as some of the evidence tended to show; and the question was whether, if this evidence were correct, the conductor or brakeman acted within the scope of his authority, so as to bind the company. It was held that he did, the court saying: "It is conceded that authority in a conductor to remove a trespasser in a lawful manner, whether conferred by the rules or not, is implied, and is incident to his position. We think the same concession must be made in respect to the authority of the brakeman who finds a trespasser on the platform of a car. His duties do .not primarily pertain to the protection of the cars against intruders; but he is a servant of the company on the train, concerned in its management, and fully cognizant of the obvious fact that intruders, who jump upon the train for a ride, without intention of becoming passengers, are wrongfully there. Suppose a train was standing still, and a trespasser was put off by force by a brakeman, using no unnecessary violence, would it not be a good defense to au action against him for the assault that he was brakeman, aud did the act complained of in that capacity, although without express authority? 'fhe implied authority in such a case is an inference from the nature of the business, and its actual daily exercise, according to common observation and experience. But, assumillg authority in the conductor or brakeman to remove a trespasser in a lawful manner, the question remains whether, wheu a conductor or brakeman, without warning or notice of any kind, kicks a boy of eight years from the platform of a car, while the train is funning at a speed of 10 miles an hour, he can be said to be acting within the scope of his employment, so as to make the company liable for the act. Assuming the case made by the plaintiff, the act was flagrant, reckless, and illegal; but the point is, was the act within the scope of the employment and authority? If it was, and the servant, in doing what he did, undertook to act for the company, and not for himselt or his own ends, the company is not exonerated, although the servant may have deviated from the instructions in executing the authority, or may have acted without judgment, or even brutally. The removal of trespassers from the cars was, as we hold, within the implied authority of the defendant's servants on the train. The fact that t,hey acted illegally in remo\'ing the plaintiff while the train was in motion, does not exonel'ate the defendant. In some cases. where the existence of an authority in the servant to do a particular act is in controversy, and the authority is sought to be established by inferences and implications, it lUay be a material circumstance, bearing upon the non-existence of the authority sought to be implied, (a) Hoffman v, N. Y. Cent, R. Co. 46 N. Y. Bup. (J. & s.) 526, 028; S. C. 44 N. Y. Sup. (J. & S.) 1. Bee Rounds v. Delaware, etc .. R. Co. 64 N. Y.129. Isaacs .v. Third Ave., etc., R. Co. 47 N. Y. IZl; Cohen v. Dry Dock, etc., R. Co. 40 N, Y. Sup. (8 J. & B.) 368; B. O. sffirmed. N. Y. 170; Jack.on v. Becond Ave. R. 00. 47 N Y. 214; Mott v. COllsum.rs' Ice Co. 73 N. Y. &13 j leek v. N. Y.
Cent. R. Co. 70 N. Y. 587; Oarretzen v. DuenckeJ. 60 Mo. 104; Bayley v. M., etc., R. 00. L. R. 8 C. P. 148; S. C. in court below, L. R. 7 O. P. 415. Poulton v. London, etc.· R. Co. L, R. 2 Q, B. 534; Oliver v. Northern Transp. Co. 3 Or. 84; Garrett v Louisville, etc" R,Oo.3 Am.&> Eng. R.Caa.41C1. (Sup. Ct. 'renn. 1881.)
HALL
MEMPHIS & C. R. CO.
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that the act was one which the master could not do himself without a violation of law. But this fact would not be decisive. No doubt the kicking of the boy off the car was not only a wroug to the plaintiff, but was a violation of the duty which the train servants owed to the defendant, to exercise proper care in executing the authority confided to them; but in most cases, where the master has been held liable for the acts of a servant, the tortious act was a breach of the servant's duty. In this case, the authority to remove the "plaintiff from the car was vested in the defendant's servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible, unless the brakeman used his authority as a mere cover for accomplishing an independent and wrongful purpose of his own. The general subject has been recently considered in this court, and itis unnecessary further to elaborate it.(b) We think the court would not have been justified in taking the case from the jury."(c) Accordingly, where a boy sued for injuries alleged to have been received by being thrown from a street railway car by the conductor, the following charge was held proper: If the conductor" acted neither maliciously nor with a view to effect some purpose of his own, but within the general scope of his employment, while engaged in defendant's business, and with a view to the furtherance of that. business and the defendant's interest, believing from the appearances before him, and upon which he had to exercise his judgment, that his duty to the defendant required him to act, then the defendant is responsible for the manner in which he acted, and the conseqnencesof his act. though he may have acted in excess of his real authority."(d) In a late case in the appellate court of l11inois it is laid down that, while it is a general rule that where an employe goes outside the line of his employment, and, for purposes of his own, inflicts an injury upon the person of one who has no claim upon the employer, arising from any special relation existing between them, the employer is not liable; yet, when applied to the treatment by a cornmon carrier of its passengers, the rule does not apply. The reason of is said to be that a common carrier owes a duty to passengers that they shall be protected from all danger, so far as the efforts of the carrier and its servants· can be made available. TlIe grounds on which the court proceed are thus well expressed by PILLSBURY, J.: "It' is impossible for a railroad company, as such, to perform the contra:.1t upon its part, as it can act only through its agents and servants. The performance of its contract is intrusted to agents and servants selected by its authority, for their known or presumed fitness t6 perform the duties assigned to -them. The passenger has no voice in the selecUon of the employes charged with the fulfilling of the company's contract with him; but, relying upon the reasonable presumption that the company has selected competent, faithful, alld humane servants, he confidently submits himself to their control and direction until the completion of the contract. 'fhe employe.:! of the company have exclusive control of the train.· In its operation and manltgement, and in the performance of the company's contract with the passenger, they are the representatives of the company, and as to (b) Citi"l!Higgjns v. Wntervliet Turnpike C<'.46 N. Y. 2:!; Rounds v. Delaware, etc.,R. Co. 64 N. Y.l29. (c) Hoft'lnnn v. N. Y., etc., R. Co. 87 N. Y. 25,30. (d) Schultz v. Third Ave. R. Co. 46 N. Y. Sup (14 J. & S.) 211.
88
such passenger they stand in the place of the company, and all their acts, so far as they have a direct connection with the performance or non-performance of the contract, must be held to be acts of the company itself. The company, knowing at the time of entering into the contract for carriage that its servants in charge of the train are the only instrumentalities through and by which it can perform its contract, must be considered as having agreed that such servants should not, either willfully or negligently, violate such contract to the injury of its patron. If the company has stipulated that the passengel' shall, during his transit, receive kind treatment at the hands of its servants, appointed by itself to fulfill its agreements in that regard, we fail to perceive why it should not be held liable for a breach of its contract in that respect, as well as in allY other. Neither can we fully appreciate the argument that a ne,(jligent violation of such contract is a breach thereof, while a willful one is not. The wrongfnl act of the employe violates his own contract with his employer at the same time that it violates that of the employer with the passenger. And it seems to us to be more in accord with the reason and philosophy of the law, as well as with a sound public policy, that the master should be held to a reasonably strict accountability for such acts of the servant; and if anyone is to look to the servant for indemnity, let it be the employer who has Se411cted such servant, and intrusted him with the fulfilling of the master's duty to the passenger, rather than apply a principle that would confine the remedy of the passenger to an action against a servant, who in many cases might be insolvent, and for whose appointmeut the injured one is not in any manner responsible. The fact tbat the servant is liable in tort for his wrongful act, does not lessen the liability of the master, where such act is also a breach uf the master's contract. In such case the injured party has his election to sue in assumpsit for a breach of contract duty, or in tort for the ful injury."(e) The court of Pennsylvania appears still to adhere to the old idea. that if the act of the servant of a railway company in expelling a passenger was" malicious," the company will not be liable. 'rhus, it is said by that court in a late caSe: "If the conductur was at the time acting in the line of his duty and within the scope of his employment in putting Toumey off, under the existing'circumstances, the company is liable for the act of the conductor, although he may have done it in a careless, negligent, or reckless manner; but for his unauthorized, willful, and wanton or maliciolls trespass, the company is not liable."(f) In the case in which this language was applied there was evidence tending to show that a person who had no right to ride upon a particular train was pushed off by the conductor while the train was going at the rate of eIght miles an hour, in consequence of which he sustained severe injuries. It is obvious that not only the doctrine laid down, but the application in the particular case, is not in accordance with the best modern authorities. It is well settled that a railway company is liable for the unauthorized acts of its employes, as well as for those which are authorized. The words ,. willful, wanton, and malicious" are little more tban epithets referring to (t) Railroad Co. v. Flexman, 9 Bradwel1, :l50, 254. (f) Pa. R. Co. v. Toomey, 91 Pa. St. 256, 259; cltmg PhUa., etc., R. Co. v. Wilt, 4 Whal't. 143; Pa."engel'R. Co. v. Donahne, 70 Pa. St. 119.
HALL V. MEMPHIS
&
C. 1\. CO.
89
the psychological condition of the actor, and conveying no meaning which can be the foundation of a sound juridical distinction. In another case that court has gone even further, and held that, to maintain an action of trespass vi et armis against a railway company for the wrongful act of its train-conductor in ejecting a passenger, it must appear that the act was done by the command or with the assent of the f'ompany. When, therefore, a passenger presented a ticket to the conductor, and the conductor refused to honor it, but expelled him from the train, and the only question was whether the ticket was one which entitled him to ride on the particular train, the conclusion was reached that, if the ticket was not one which entitled him to ride on the particular train, the passenger could not maintain an action, because the conductor had a right to put him off; and if the ticket was one which entitled him to ride on the particular train, the could not recover damages, because, in putting him off, the conductor acted without the authority or assent of the company. The remedy of the passenger in such a case was said to be against the conductor, whose trespass it was.(g) It is hard to believe that the highest court in the second state of the American Union administers justice-if that word can be so abused-under such a worn-out rule of law,-' a rule which, in such an application, ignores the plainest principles of public right, We seek curiously for the causes which could have led to the preservation of such a rule in that state. § 16, DISTINCTION AS TO THE KIND OR GRADE OF SERVANT WHO DID THE ACT. Within the meaning of the above rule, there seems to be no just distinction with reference to the grade or office of the servant who did the act. It will be for the jury to say, in each case, whether the servant who did the act was, in a general sense, acting within the scope of his employment, and in furtherance of his master's business. Thus, in order that a person may recover damages from a railway company for being improperly expelled from its train, or for being expelled therefrom at an improper place, or in an improper manner, it is not necessary that the expulsion should have been done by the conductor of the train; he will be entitled to recover if it was done by some other servant of the company acting in the manner above stated.(a) Accordingly, damages have been reco.vered against railroad companies for trespasses committed by their servants, where the wrongful act was done by a porter,(b) by a servant emplo.yed to clean the cars,(o) and, in cases of street railroads, by the driver.(d) § 17. RIGHT OF PASSENGER TO RF..8IST UNLAWFUL EXPULSION. ltseems that passengers have a right to resist unlawful expulsion, but that they have no right to carry resistance to an extreme point. On the one hand, they have no right to resist for the J!lere purpose of bringing upon themselves violence, in order to make such violence ground of recovering enhanced damages.* The (g) Allegheny Valley R. Co. v. McLain, 91 Pa, st. 412; citing j hila" etc., H. CO v, Wilt, 4 Whort. 142; Yerger v. Wanen, 7 Cagey, 319, (It) Hoffman v. N. Y.Cent. n. Co.46 N. Y. Sup. (14 J. & S.) 526, (b) Bayley v. r.InncheRler, etc" R, Co. L. R. 8 C. P. 148; S, C. In court below, L. R, 7 C. p, 14&.
«) Northwestern, etc., R. Co. v. Hack. 66 Ill.
238. (d) Lovett v. Salem R. Co. 9 Allen, 657; Cohen v. Dry Dock, etc., R. Co. 40 N. Y. Sup, (8 J. & S,) 368. "Ante, 17.
90
Jaw will not encourage such a degree of resistance, for the further reason that it would lead to breaches of the peace. On the other hand, they are not bound to submit to the indignity and wrong of being expelled from a public conveyance where they rightfully are, without making any resistance whatever. They will in all cases be justified in maldng sufficient resistance to show that they do not acquiesce in the command to leave the vehicle, and that they leave it under physical compulsion. Now, it is a well-settled principle of'law, founded in considerations of obvious justice, that a party who is subjected to an injury must use such means as he reasonably may to prevent an enhancement of the damages which will naturally flow from the injury. It seems to follow that, where a passenger is from a carrier's vehicle,although the expulsion be unlawful or unjustifiable, yt:t if the passenger resists to an unreasonable extent, such fact may be considered by the jury in mitigation of darnages.(a) In one case, however, the right of the passenger is more strongly put: ., When a conductor is in the wrong, the passenger has a right to protect himself against any attempt to remove him, and resistance can lawfully be made to such an extent as may be essential to maintain such a right. Cases occur where circumstances may imperatively require that the passenger should remain on the train on ·account of others who may be there in his charge, or where it is indispensable that he should hasten on his journey without delay; and if, by reason of the mistaken judgment or willfulness of the conductor, should be expelled when lawfully there, serious injury might follow. The law does not, under such circumstances, place the passenger within the powel' of the conductor; and, when lawfully in the cars, he is authorized to vindicate such right to the full extent which might be required for his protection."(b) ;' But," it has been well observed, " if the conductor has the right to eject the passenger, and is proceeding to do sotn a lawful manner, the latter has no right to resist; and if in doing so he receive injury, he will have no one to blame but himself."(c) § 18. EXPELLING PASSENGER AT PLACE OTHER THAN REGULAR STOPPING-PLAOE. A statute of Texas provides that "if any passenger shall refuse to pay his fare or toll, it shall be lawful for the conductor of the train, and the servants of the corporation, to put him out of the cars, at any usual stopping-place which the conductor may select."(d) The words" usual stopping-place," as above used, are held to mean a regular station or any other place which the company, expressly or impliedly, by use for such purposes, had designated as a proper place for passengers to get on or off its trains,and where they would, in consequence thereof, have the right to demand the exercise of this privilege. A place where trains stop for the purpose of taking on wood and water only, is not a "usual stopping-place" within the meaning of the above statute.(e) A similar statute exists in Illinois. The term" usual stopping-place," employed therein, means a regular station, at which passengers get on ll.wloff (a) Brown v.l\.Iemphls, etc., R. Co. 7 Fed. Rep. 51,65. (b) English v. De)aware, etc., Canal Co. 66 N. Y.451.
(c) Hutch. Car. § 593. (Ii) Pasch. Dig. Tex. st. art. 4892. (t) Texas, etc., R. Co. v. Casey, 52 Tex. 112,122.
HALL V.MEMPHIS& C. R. CO.
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the company's trains.(f) Under it, where the passenger is rightfully put off, the only wrong being the wrong of putting him off at'n place not a regnlar -stopping-place, the supreme court has shown a disposition not to allow large damages. They have set aside verdicts for $l,OOO,(g) for 8450,(h) and, for .$500.(£) But they have affirmed judgments for $100(j) and for $200.(k) No,r does the court favor the giving of exemplary damages in such cases. The damages are limited to compensation for the actual injury, unless circumstances of aggravation be shown.(l) Where the train from which the passenger is expelled is a freight train, this rule does not require the conductor to cause the train to be drawn up to the platform before expelling the recusant passenger. The passenger may, although a woman, be put off 011 a side track, uuless it is customary for freight trains to land their passengers at the .platform.(m) § 1\). WHETHER CONDUCTOR BOUND TO RECEIVE FARE TENDERED AFTJ<;R lIE HAS COMMENCED TO PUT PASSENGER OFF. Where a person is upon .a train under circumstances which entitle the conductor to demand pa:rment of fare of him, and he fractiously refuses to pay fare. and the conduetor thereupon, as he may rightfully do, signals the train to stop and commences tc. :put him off, if the passenger then changes his mind and offers to pay fare. Qr some one offers to pay it for him, the conductor is nevertheless not bound to desist from putting him off. (a) .But where the passenger has acted in good faith, if, before the work of putting him off is complete, another passenger tenders his fare for him, the conductor, it ,has been beld, is bound to accept it and desist from putting him off.(b) But the refusal to pay fare does not work a forfeiture of the right of the passenger to ride, under reasonable conditions, upon thp. payment of his fare; the company cannot visit upon him the punishment of refusing to serve him, upon tendering the. price, as it is bound to serve any other member of the pUblic. While, therefore, the passenger cannot be allowed to llxperiment with the conductor, who has been compelled to commence stopping his train on account of the former's contumacy, yet if be com-. mences to rut him off for refusing to pay his fare at a regular station, at which the train would have stopped in any event, seems to be no good reason Why the conductor should be upheld in refusing to allow him to ride upon tendering the proper amount of fare; and it has been held that such a refusal cannot be justified.(c) But even here, it bas been held, he is not entitled to resume his journey unless he pays fare for a passage from the station where he first entered the train.(d) (f) Chicago. etc., R. Co. v. },'lagg, 43 111. 364; Chicago, etc., R. Co. v. Parks, 18 Ill. 463; Terre Haute. etc., R. Co. v. Vanatta. 21111. 183. (g) Terre Haute. etc., R. Co. v. Vanatta, 21 Ill. 188; Chicago, etc.· R. Co. v.' Peacock, 48 Ill. 253. (h) Chicago, etc., R. Co. v. Roberts,40 Ill. 503. (I) Illinois, etc., R. Co. V. Cunningham, 67 111. 316. (j) Ohicago, etc., R. Co. v. Flagg, 43 111. 364. (k) Illinois, etc., R. Co. v. Johnson, 67 111. 312. (I) Toledo, etc., R. Co. v. Patterson, 63 HI. 301. (m) Illinois Cellt. R. Co. v. Nelsoll. 59 Ill. 110. (a) O'Brien v. N. Y., etc., R. Co. 80 N. Y. 236; S. C. 1 Arne,'. & Jo;nr.. R. Cas. 259; Hollbauer v.
Rallrood Co. 52 Iowa, 342; Stone v. Chicago. etc., R. Co. 47 Iowa, 82; O'Brien v. Boston, etc .. R. Co. 15 Gray, 20; Hibbard v. N. Y. Cent. R. Co. 15 N. Y. 455; People v. Jillson, 3 ParI<. Cr. R. 231, 230; Stone v. ChicllgO, etc., R. Co. 47 Iowa, f·9; State v, Campbell, 32 N. J. L. 309. (b) Garrett v. LOUisville. etc., R. Co. 3 Amer. & Eng. R. Caa. 416, (Sup. Ct. Teun. 1881;) S. C.72 Tenn. (8 Lea,) 438. (c) O'Brien v.N. Y.,etc.,R. Co. 80 N. Y.236; S. C. 1 Amer. & Eng. R. Cas. 259. (d) Stone v. Chicslt0. etc .· R. Co. 47 rO"'.,82; S. C. 10 Chi. Leg News, 78; 6 Repol·tel', 4,,9.
92
The reason of this rule and of the exception to it seems to 1)e tllat the passenger, having first broken the contract, cannot afterwards tender performance of it and insist that it shall be reinstated by the carrier; but as the carrier is bound to receive at any regular station any pel:son (with certain exceptions not necessary to notice) who purchases a ticket or tenders fare, it is bound, the train being at a regular station, to make a new contract with the obstinate passenger, the same as it is bound to do so with any other proper person; and it cannot take it upon itself to punish his obstinacy by denying to him the rights which it is bound to extend to the public generally. The reason of the rule was quite forcibly expressed by DENIO, J.: ,. Hailroad trains are now run according to a scheme in which the time required in passing from one point to another and the time required for the necessary stoppages is accurately calculated. Any disarrangement or departure frol11 the time,fixed is exceedingly hazardous to the safety of the company's property and the persons employed in running the train. The most horrible calamities have often been the result of such disarrangements. And if one passenger can by his unjustifiable humor cause the cars to stop, another may do the same thing, and the utmost irregularity may be brought about. The rule. therefore, was, in my judgment, plainly reasonable. which imposed a forfeiture of his right to proceed further on the cars upon a person who should refuse to show his ticket to the conductor when requested. If he forfeited his right by his improper conduct, it was for the company or its agents to say whether he should be retained after having occasioned the inconvenience of the stoppage by his pertinacity."(e) In addition to this, it is said that .. if the rule were otherwise it would enable a pas::>ellger so disposed to pay his fare only on compulsion and after the train had stopped, repeating the uperation between all stopping pfJints along the route of the road. The passenger must, therefore, stand or fall uy the right of the company to expel him. If he incur the exercise of this power, he is at the mercy of the company. If they are wrong, they must respond. If he is in error, he must hear the blJrden of his folly. He cannot, as suggested, create the facts and circumstance::> out of his own wrong; he must take the consequences, which are expulsion at the will of the company expressed through its agent, the condnctor, awl the inconvenience resulting from that incident."(f) So, where a passenger had e:ll..hibited a spent ticket. and insisted on his right to ride upon it. until the conductor stopped the train to put him off, it was held that he could not, on producing a r0gular ticket, claim the right to be allowed to remain on the train. "In my opinion," said BEASLEY. C. ,J., "such a doctrine is not consistent with either law or good sense. Its estnlilishment would practically annul the power of a railroad company to req \lire passengers to show their tickets; for it is obvious that, if the only pmJalty on a refractory passenger is a momentary expnlsion, he will be enabled, at ;1 small sacrifice, by repeated refusals, to compel an abandonment of the demand upon him. A p<lssenger takes his ticket subject to the reasonable regulations of the company; it is an implied condition in his contract that he will submit to sllch regulations; and if he willfully refuses to be bound by them, (.) Hlbbal'd v. N. Y R. Co. 15 N. Y. 455.
(I) Ne1.on v. Long Island R. Co. 7 HUll. 14U, 145, pel' Bradr. J.
MEMPHIS & C. B. CO.
93
by so doing he repudiates his contract, and, after such repudiation, cannot 'Illaim any right under it. In this case, the passenger, with full knowledge of the regulation in question, refused to show his ticket, which alone gave him a right to a seat in the cars. The exhibition of the spent ticket did not help the matter; he stands, therefore, on the same footing as any other pas" senger who, when properly applied to, will not exhibit the evidence of his rightful presence in the car. If this particular passenger had the legal right to re-enter the cars after his tortious refusal, so, on all similar occasions, will all other passengers be entitled to the same right. We come thus to the result that railroad passengers may violate, with full knowledge, a legal regulation of a company in whose cars they are calTied: they may resist, short of a breach of the peace, all attempts to expel them; they may, by this means, at a loss to the company, and to the peril of the pUblic, disarrange the order of successive trains upon the road with regard to each other; they may occa· sion a tnmult and disorder in the car in which they may happen to be; and, after being expelled, they may immediately return to repeat, if so inclined, the same misconduct. I must think it requires no argument to show that such a license to do evil as this does not exist."(g) In like manner the supreme court of Iowa hold that if a passenger refuses to pay his fare when demanded, the conductor may rightfully put him off, although he offers to pay it before he is actually expelled. "The rule," says J, "that a passenger may contest the regulations of the company and' the firmness of the conductor by refusing to pay full fare, and still save himself from expulsion by tendering full fare after expulsion has commenced, is not only uncalled for for the just protection of the recusant passenger, but would tend to encourage a practice, which, if indulged in, would interfere with the convenience of the company, and the dispatch and quiet to which other passengers are entitled."(h) § 20. WUETHER THE BEFORE EXPELLING THE PASSENGER, MUST REFUND THE UNEARNED PASSAGE MONEY'. Where a traveler, on the faith of representations made to him by the company's agent, stops over on his ticket and attempts to resume his journey on the same ticket after it has, by its terms, expired, the conductor cannot lawfully expel him from the train without first restoring to him that portion of the passage money which is represented by that part of the transit called for by the ticket which has not yet been made, or deducting it from the fare claimed for the rest of the journey. The ticket is evidence that the fare has been paid for the entire transit, and there is no rule, founded in sense or justice, which will allow the company to keep the passenger's money, where he has acted in good faith, without transporting him over the route for which he has paid.(a) In a late case the plaintiff entered the defendant's cars without procuring a ticket, and handed to the conductor the ticket fare. The conduetor afterwards demanded of the plaintiff the additiunal amount required by the rules of the company to be paid by persons who had not purchased tickets before entering the train. This the plaintiff refused to pay. The conductor thereupon, without first offering to retum the amount which the plaintiff had paid (g) State v. Campbell. 32 N. 1. L. 309,312. (11) Hotrbauer v. Railroad Co. 52 Iowa, 3-12. (a) Burnham v. Grand Trunk R. Co. 63 lI'Itt. 298,30;.
94
J'EDERAL BEPOBTEB.
him, stopped the train. As 800n as he had signaled to stop the train, the plaintiff offered to pay the rest of the Bum demanded. but the conductor, carrying out a rule of the company not to accept fare after the train had been signaled to stop in order to put a passenger off for non-payment of fare, refused this, laid hold of the passenger, dragged him out of the car. and; as the plaintiff was in the act of leaving the car, handed to him the money which he had paid. It was held that the company was liable to pay damages. If the conductor accepted, without objection, the money tendered by the passenger as payment of full fare, he could not thereafter change his mind and demand the extra fare; nor could he commence proceedings to put the plaintiff off, without first returning to him the money which he had paid.(bb) § 21. DETAINING PASSENGERS FOR NON-PAYMENT OF FARE. Wherearailroad company had a regulation that passengers on leaving its trains must exhibit their tickets to the gateman at the company's station, and a passenger tried to pass out without exhibiting his ticket, alleging that he had lost it, and the gateman thereupon detained him, and caused him to be arrested and confined in the police station over night, on the charge of disorderly conduct. and he was discharged by the police justice the next morning, it was held that he could maintain an action against the company for false imprisonment. The power which the company sought to exercise was not like the power to expel a passenger from its cars for non-payment of fare, but it was the power to imprison for debt. (a) -
IV. As to Damages.
§ 22. MEASURE OF DAMAGF.8 FOR EXPULSION OF PASSENGER. In an action for damages for refusing to carry the plaintiff in defendant's carB, the following facts appeared. The plaintiff, a colored woman, the wife of .. colored l'reacher, haVing purchased a first-class ticket, applied. for admission into a first-class car and was refused, and directed to go into the smoking car, where there were none but men, and some of them smoking. This she refused to do, and left the cars. She was lady.like in appearance, and at the time carried a sick child in her arms. The court instructed the jury that she was entitled to such damages as would make her whole; and that, in estimating such damages, the jury should consider the loss of time, the inconvenience she had been put to, and the probable amount of expenses incurred in the vindication of her rights. The jury returned a verdict for $l,OOO.(b) The rule thus laid down that the jury, in estimating the plaintiff's damages, may take into consideration the expenses incurred by him in the litigation. has been held allowable in courts of law, where the case is a proper one for exemplary damages.(a) Such expenses are allowed by statute in Georgia, " when the defendant has acted in bad faith, and been stUbbornly litigious, or (bb) Bland v. Southern Pac. R. Co. 66 Cal. 5101 8. C. 3 Amer... Eng. R. Cas. 285. Ca) Lynct v. Metropolitan, etc., R. Co. 24 Hun, 606. See Chilton v. London, etc., R. Co. 16 Meel.
"" W. 212. (b) Gray v. Cincinnati Sonthern R. Co. 11 Fed. Rep. 683, before Swing, J.
(c) Beecher v. Derby Bridge Co. 21 Conn. 496; Lindsley v. BUshnell, 15 Coon. 235; Welch v. Durand,36 Conn. 182; Dalton v. Beers, 38 Conn.4291 New Orleans. etc., R. Co. v. Allbritton. 38 Miss. v.Swtb. 242; Landa v. Obert, 45 Tel<. 539; 31 Ohio St. 629.
95
has caused the'plaintiff unnecessaty"trouble and expense."(d) In admiralty, where, as is well known, the rules as to the measure of damages are not the same as in conrts of law, such !lJl;penses have been likewise allowed in the case of an injury to a passenger· at sea.(e) But the propriety of allowing counsel fees to be taken into consideration in estimating exemplary damages hlis been denied by some of the best courts.(I) 23. EXEMPLARY DAMAGES IN SUCH CASES. it has been well said that .. there is no class of cloSes where the doctrine or exemplary, damages can be more beneficially applied than in the case of railroad corporations in their capacity of common carriers of passengers ;"(a) and the courts are in the constant habit of upholding the giving of exemplary damages in the case of the wrongful expulsion of passengers from railway The grounds on which these damages bavebeen generally given are gross misconduct towards the passenger on the part of the company's servants ;(c) but they have also been given where the agent acted without unnecessary violence and upon conscientious views of his duty. The injury which will entitle a passenger to such damagcs may consist in the act of the conductor in executing a rule of the company, as where, without malice on the part of the conductor, a well-behaved woman is expelled from a first-class car on account of her color.(dd) Here it will be no reason for instructing the jury that they should not give exemplary damages that the conductor acted without malice; for, in such cases, punitive damages may be inflicted for the purpose of enforcing upon the corpora.tion obedience to the duties required of it as a common carrier.(ee) ,. The only way carriers of passengers can be held to reasonable regulations, is by allOWing juries to inflict punitive damages for a violation of the lights of the public; and the establishment of unreasonable regulations is the grava;. men of the offense, that being a disregard of the rights of the public for which the carrier is punished. The mere price of a ticket or refunding of the money will not answer the purpose in all cases; that would be simply to permit the carrier to enforce the unreasonable regulation, because he woulq never claim to keep the money while refusing to render the service. He would take no money, or refund all rec::-.ived, and go on with his business in his own way, and the plaintiff or the public would be no better off. r.rhis rule of damages (a) Code Ga. (Ed. of 1873) § 2942. See Savannah v. Waldner. 49 Ga. 316: Gurnsey v. Shellman, 59 Ga. 797. (e) The Oriflamme, 3 Sawy. 397, 404. (1) Day v. Woodworth,lJl How.3ll3; Oelrichs T. Spain, 15 Wall. 211; Fairbanks v. Witter, a Wis. 287; Earl v. Tupper, 45 Vt. 275; Hoadley T Watson, Jd. 289; Kelly v. Rogers, 21 Minn. liS I Howell v. Scoggins. 48 Cal. 355; Falk v. Water. man,49 Cal. 224. And see Lincoln v. Schenec. tady, etc.,R. Co.Zl Wend. 425. The costs of prior litigation are recoverable 3S damngeson the prine cipie of compensation, where they have !lowed as the necessary or prOXimate result of the wrong done the plalntllf,-as In actions for malicious prosecUtion or false Imprisonment. Pritchet v. Doevey. 1 Cro. & M. 775; Bonesteel v. Bone.teel,
30 Wis. 511; Blytbe v. Thompkins, 2 Abb. PI'. Foxnll v. Barnett, 22 Eng. Law & Eq. 179; Parsons v. Harper, 16 Grot. 64. But see Strang v. Whitehead, 12 Wend. 64; Bradlangh v Ed. wards, 11 C. B. (N. S.) 377. (0;) Goddard v. Grand Trunk R. Co. 57 Me.202; S. C. 2 Amer. Rep. 39; Haley v. Mnblle, etc., R. Cp.7 Baxt. 243; Garrett v. Louisville, etc., R. Co. 3 ArneI'. & Eng. R. Cas. 416, (Sup. Ct. Tenn.l"Sl.) (b) Brown v. Memphis. etc., R. Co. 7 Fed. Rep. 51; Evans v. St. Louis, etc., R. Co. 11 Mo. App. (c) See the discussion of this question in Mil. waukee, etc., R. Co. v. Armstrong, 91 U. S. 4S9; also Ackerson v. Erie R. Co. 32 N. J. L. 254, 2;0. (cld) Rallroad v. Brown, 17 Wall. 446; Brown ,.. Mempbls, etc., R. Co. 7 Fed. Rep. 51, 63. <cc) Brown v. Memphis, etc., R. Co. Aupra.
96
would be simply rescinding the contract to carry, which is all the carrier demands, and sufficient for his purpose."(/)
§ 24. INSTANCES OF THE AMOUNT OF DAMAGES. A boy eight years old jumped upon a street-railway car, having money in his pocket to pay his fare. After the car had proceeded about a block, the conductor came from inside the car, when another boy, who had got upon the car, put his hand to his nose alld jumped off. Thereupon the conductor, without asking the former boy for his fare, or giving him an opportunity to pay it, and without stopping the car, threw him off from it. He fell on the defendant's other track, about four feet distant, and another of the defendant's cars, which had this moment come up the track, ran over him. His collar-bone was broken, so that it protruded from the skin. His .second and third ribs were also broken. His right arm was broken near the shoulder in four or five pieces. The small bone of his left arm was broken near the wrist, and 80 was his thigh joint between the middle and upper third. There were great contusions and abrasions, and the boy was permanently injured and deformed. The court could not say that $15,000 were an excessive award of damages for such injuries.(a) Where a person purchased a collector's certificate of the payment of a cere tain sum as railroad taxes, which was more than the amount of fare, according to the company's regular schedule of fare, for the distance which be desired to travel, and got upon the train in good faith, supposing that this would pay his fare, there being no agent at the station where he got upon the train to inform him of his error, and presented such certificate to the conductor when his fare was demanded, who refused to receive it, and demanded the payment of the fare in money. which the plaintiff was unable to pay, and thereupon the conductor took hold of him to put him off the train, when a fellow-passenger, out of motives of humanity, offered to pay the fare demanded, which the conductor refused, but puL the plaintiff off the train, it was held that the company was liable, that it was a case for exemplary damages. and that $2,000 damages were not excessive.(b) A well-dressed colored woman was put out of the lady's car because of her color, and also because of a claim, on the part of the conductor, that she was known to him to be a woman of lewd character. She resisted, and a good deal force had to be used in expelling her. Her testimony showed that her thumb was dislocated, and that she was severely choked, while other testimony tended to show that no unnecessary violence was used. It was held that an award of $3,000 was not so gross as to authorize the court to set aside the verdict, though the learned judge would have been better satisfied if it had been smaller.(c) The wife of an employe of a company got upon the train without a pass, having been told that she would be allowed to ride free without a pa:!8 being required of her. The conductor ordered her to leave the train, not at a station, but at a water-tank where the train had stopped. Her petition aI(f) Id., per Hammond, J. (II) Sehnltz v. Third Ave. R. Co. 411 N. Y. Sup. (141. &I S.) 211. (b) Garrett T. LonlsTllle, etc., R. Co. 3 Amer.· Eng. R. Cu. 416, (Sup. Ct. Tenn. 18S1.) (c) BroWD T. Memphis, etc.. B. Co. 7 Fed. Rep. &1,62.
JOHNSON
V.
HANOVEn FIRE INS. CO.
97
leged that she offered to explain to the conductor why she had no written . pass, but he refused to receive ber explanation, and put her off the train in the presence of a large number of passengers, in a "rude, wanton, alid malicious manner." She claimed that, in consequence of being so put off, she was greatly mortified, frightened, had to walk with her infant child in her arms, two or three miles, and, ·in consequence thereof, suffered a miscarriage. 'fhe jUry were instructed that, under the pleadings, they could not give exemplary damages; but that they must confine their verdict to" such actual damages" as the evidence should satisfy them were suffered" pecuniarily, and in feelings, injuries, and sufferings resulting from an unlawful act." The evidence is not set out, but, in the opinion of the court, it is said to have preponderated in favor of the defendant. The jury, under the instructions, returned a general verdict for $2,500, and the supreme court refused to set it aside.(d) Where a passenger, after having been carried but a few miles, was put off from a railway train, was detained but a few hours, and suffered no special damage from inconvenience and loss of time, a verdict for $750 was held excessive.(e) SEYMOUR D. THOMPSON. St. Louis, M'issow'i, (.) HOUltoD, etc., R. Co. v. Ford, 63 Tex. 36'.
JOHNSON and others v. HANOVER
FIRlIl
INS. Co.
Court, N. D. Illinois. January 15, 1883.) 1. FOREIGN CORPORATIONS-SERVICE OF SUMMONS ON.
An insurance company existing under the laws of one state and doing business in another, may be served with a summons by service upon anyone of its agents appointed to transact its business in such other state.
2.
SAME-APPOINTME
OF AGENT OR ATTORNEY.
B. D. Magruaer, for plaintiffs. W. I. Culver, for defendant. BLODGETT, J. This is a suit on a policy of inslll'ance alleged to have been issued by defendant to plaintiffs. The defeudant is a corv.15,no.1-7