LOUISVILLE, NEW ALBANY & CHICAGO R. Co.

ย.

WOLFE.

(Indiana Supreme Court, May 23, 1891.)

Expulsion of Passenger-Use of Profane Language-False Charge by Conductor. A railroad company cannot justify the act of a conductor in expelling a passenger from a train, who has paid his fare, on account of his having, in the heat of passion, when falsely charged by the conductor with failure to pay his fare, used profane language in response to such charge, in the presence of ladies.

Same-Injuries Caused by Passenger's Resistance. Where a passenger is lawfully in a railroad car and has the right to be carried, he has the right to make reasonable resistance to the efforts of the conductor to expel him, and for such damages as he may sustain on account of his removal from the car while so resisting, the company is liable.

Same-Exemplary Damages may be given in an action against a railroad company, for the wrongful ejectment of a passenger, if malice and oppression are shown.

APPEAL from Harrison Circuit Court.

Jewett & Jewett, E. C. Field and S. O. Pickens, for appellant. Alex. Dowling, for appellee.

OLDS, C. J.-This is an action by the appellee against the appellant for being wrongfully expelled from the appellant's train by its servants, with force and violence, unCase stated. der humiliating circumstances. Issues were joined on the complaint by a general denial and answers in justification, one alleging the non-payment of fare, and the other non-payment of fare, and the use of profane and indecent language, and that he was guilty of disorderly conduct. The appellee replied in denial to the answers in justification. There was a trial by jury, and a verdict in favor of the appellee for $1,500 damages. The jury also returned answers to special interrogatories. Appellant moved for judgment on the interrogatories and answers, for a new trial, and to modity the judgment; all of which were overruled, and judg ment rendered on the verdict. Appellant's counsel discuss three propositions: First, that appellee, by his conduct and language used, forfeited his right to be carried as a ger, and appellant had the lawful right to eject him from the train; second, that the damages are excessive; and, third, that the court erred in the instruction given in relation to damages. The jury by their answers to interrogatories find

passen

that appellee, on August 29, 1887, purchased a ticket at New Albany for passage on appellant's train from New Albany to Mitchell, Ind., and on said day he took passage on appellant's train for Mitchell, and, on demand of the conductor, surrendered his ticket. That the conductor demanded fare or a ticket twice before stopping the train to put appellee off, and the train was stopped not at a regular station or stopping place to put him off. That the train was stopped before any effort was made to eject appellee, and before he was put off the train he said to the conductor: "If you say I did not give you a ticket, you are a God damned lying son of a bitch." That the words were spoken in a loud voice, and there were ladies in the car at the time. That when the trainmen undertook to put the appellee off the train he resisted, and struggled, and attempted to hold on to the seats in the car, and while so resisting he was injured about the arms and hands, and this was all the physical injuries that he received. It is insisted that these facts entitled the appellant to a judg ment, notwithstanding the general verdict, on the theory that the appellee, by the use of the profane and improper language in a loud tone, in the presence of the lady passengers, forfeited his right to be carried as a Use of propassenger, and the conductor had the right to stop fane lan the train and put him off. It is assumed in the ar- guage did not gument that this finding of fact shows the appellee sion. to have used this improper language before the train was stopped for the purpose of putting him off, but this assumption is not warranted by the finding. The finding is that he used this language "just before he was put off of defendant's train." We do not think it presents the proposition discussed by counsel, viz., that if a passenger delivers to a conductor a ticket or pays his fare, and afterwards the conductor calls upon him to again pay his fare, and disputes the first payment, and a dispute arises, in which the conductor demands fare, and the passenger refuses to pay it on the ground that he has once paid, but in his refusal he becomes boisterous, and is guilty of unbecoming conduct, or the use of vulgar, obscene, and profane language, he forfeits his right to be carried further, notwithstanding he has paid his fare; and the conductor may stop the train, and expel him without liability. From aught that appears in the finding in this case, the appellee may have conducted himself in a perfectly civil and gentlemanly manner until the train was stopped, and the employes of the appellant had taken hold of him, and a struggle ensued, and the appellee taken from his seat; and that it was just as he was about to be finally ejected from the car when he used the language. If such were the facts,-and

justify expul

they may have been, from aught that appears from the finding, it would present a very different case than if the language was used in the first instance; for in such a case as we have put it would be clear that the language used had nothing to do with the ejectment from the train. It would be clearly apparent, under such a state of facts, that he would have been ejected without regard to the use of the language; but, conceding that the language was used before the train was stopped, it does not appear that he was ejected on account of the vile language used. It is undoubtedly true that a passenger, by a breach of decorum, either by his acts or his language, may forfeit his right to be carried as a passenger, and may be expelled from the train, notwithstanding he has paid his fare; and this may be true even if he be led to such breach by reason of an insult offered him by an employe of the company. A wanton insult or false accusation ofttimes causes a sudden outburst of temper, and the use of language which one in an instant after regrets, and feels the mortifica tion more keenly than do those in whose presence it is uttered. One who utters the language in a heat of passion, caused by a sudden and wanton insult and unexpected charge against his truthfulness and honesty, must be dealt with with more leniency than if used deliberately, without prov ocation, or after reasonable time for second thought, and opportunity to bridle or control his passion. The fact that a false and slanderous charge is made in the heat of passion may be proven in mitigation of damages. If a conductor, after having received a ticket for fare from a passenger, should return to him, and falsely deny having collected his fare or received a ticket, and demand pay again, and it was refused, and the conductor should abandon any further effort to collect again the fare or threats of putting off the train, and the passenger, after having reasonable time to control himself, should persist in the use of profane or indecent language, to the annoyance of other passengers, he would no doubt violate his right to be carried; at least, if the unearned fare was tendered back to him; but the company cannot jus tify the act of the conductor in expelling a passenger who has paid his fare on account of his having, in the heat of passion, when he was falsely charged with the failure to pay, used improper language, such as was used in this case, in response to such false charge, even though it was heard by other passengers; the wrong committed by the passenger was provoked by the conductor. It does not lie in the mouth of the appellant to say: "True, you paid your fare. You had the right to be carried. But when the conductor falsely charged you, in the presence of the other passengers, with

not having paid your fare, and demanded that you again pay are or he would stop the train and put you off, you became angry; you used improper language to the conductor in the presence of lady passengers." If the theory contended for by the appellant be the true one, then it would be an inducement for the employes of railroad companies, under such circumstances, to wantonly and purposely address the passenger in such a manner as to provoke him to the use of bad language or bad conduct as affording an excuse, in case he refused to pay a second time, to eject him from the train. The damages sued for accrue on account of an injury on the part of the employe of the appellant to the appellee. The offense committed by the appellee is against the other passengers. He was provoked to the commission of it by the act of the employe of the appellant in falsely accusing him, in the presence of the other passengers, of not having paid his fare. Certainly the company ought not to defend against the unlawful act of their agent on account of such unlawful act having provoked a breach of decorum, or even a breach of the peace, on the part of the appellee. It is true the language used was unjustifiable, and was an insult to those in whose presence it was uttered; but it is evidently the fact that this breach of decorum was provoked and caused by an insult offered by the conductor to the appellee in the presence of these same passengers; and we see no just reason why, under such circumstances, it should operate as a defense to appellee's right of action, and bar him from a recovery.

by resistance.

It is next contended that the verdict is excessive, for the reason that the jury find that all the physical injuries inflicted were caused by the appellee resisting, and that he cannot recover for the injury caused by his resistance. There is nothing to show that the jury did in- Injury caused clude any damages for the injury occurring by reason of appellee's resistance; but, the appellee being lawfully in the car, and having paid his fare, he had the right to be carried, and he had the right to make reasonable resistance, as he did by holding onto the seats; and he was forced loose and taken from the car; and for such damages as he sustained on account of such removal from the car the appellant is liable. English v. Delaware & H. Canal Co., 66 N. Y. 454; Southern Kan. R. Co. v. Rice, 38 Kan. 398, 34 Am. & Eng. R. Cas. 316; Lake Erie & W. R. Co. v. Acres, 108 Ind. 548, 28 Am. & Eng. R. Cas. 112; Chicago, St. L. & P. R. Co. v. Holdridge, 118 Ind. 281.

Some objection is made to the giving of the seventh instruction, and the refusal to give instruction 7 asked by appellant. We have examined these instructions, and think

Exemplary

damages.

there is no available error in the instruction given. It is evident the jury was not misled by any technical error in the language used, even if it is erroneous. The instruction relates to the right to give exemplary damages, and there was some evidence which, if true, authorized the assessment of exemplary damages. Jeffersonville R. Co. v. Rogers, 38 Ind. 116. When the offense is not punishable by the criminal law, and malice or oppression mingle in the controversy, exemplary or vindictive damages may be assessed. What we have said as to the other alleged errors disposes of the question presented by the instruction. refused.

It is further contended that a new trial should have been granted on account of accident and surprise on account of an absent witness. There is no diligence shown, no application for a continuance, and the evidence is merely cumulative. There is no error in the record. Judgment affirmed, at costs of appellant.

Expulsion of Passenger for Failure to Procure Ticket-Failure to Have Ticket Office at Station. -Under Rev. St. Tex. art. 4238, declaring the intersection of two railroads to be a depot where the companies must receive passengers, and § 4226, requiring passengers to be carried to and from such junctions on payment of the legal fares, and Sayles' Civil St. art. 42586, § 9, requiring ticket offices to be open half an hour prior to the departure of trains, and authorizing a charge of only three cents a mile by the conductor if the offices are not so open, a company is liable for the ejection of a passenger from a freight train, who gets on at a junction where there is no ticket office, notwithstanding its rule that passengers without tickets cannot ride on such trains. Eddy v. Rider (Tex. Dec. 9, 1890), 15 S. W. Rep. 113.

Expulsion of Passenger Having Ticket Punched by Mistake-Misconduct of Conductor. In Johnson v. Northern Pac. R. Co., 46 Fed. Rep. 347. it appeared that plaintiff purchased a ticket for an extended journey, the latter part of which was over defendant's road. By mistake the agent punched the ticket so as to indicate that it expired on the day on which it was issued. The mistake was not discovered until she was on the first division of defendant's road, when the conductor, upon telegraphing to the head office. received orders to honor the ticket until further instructions. At the end of his division, when he left the train, he delivered her the telegram. The conductor of the next division, notwithstanding the telegram, and the evidence on the face of the ticket that it had been honored, telegraphe i to the division superintendent, and received no answer, and meanwhile, from time to time, for several hours, worried plaintiff by making remarks calculated to disturb her, and make her realize the disadvantage of her situation, and showing a desire to be unduly familiar. Finally, about midnight, after she had been carried a great distance, he put her off the train. She had explained in her first conversation that she was far from home, her means were exhausted, and she was not able to pay her fare. Held, that plaintiff was entitled to recover damages for the expulsion and ill treatment, in an action on the contract represented by the ticket.

Expulsion-Tender of Fare before Train has Stopped.- Where a conductor is about to expel a passenger from a train, an actual tender of the fare made before the train is stopped, cannot be refused by the conductor, no