
    HOLT, Appellant, v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY.
    Division Two,
    May 19, 1903.
    • 1. Railroad: ejection of passenger: statutory regulation. Where the statute states the terms upon which a person offering himself as a passenger may be ejected from the train, the railroad can eject him only when the conditions therein stated are present, and can mot say that at common law there are other conditions which authorize the ejection.
    2. -: -: tender Off FARE. If a passenger tenders his fare at any time before final ejection the company is liable if he is thereafter ejected for a previous refusal to pay fare. But a distinction is to be noted between the tender of the fare and a promise to pay it.
    3. -:--:discussion of rights. A passenger is entitled to a reasonable indulgence in the discussion of his rights and duties in the payment of fare when it is demanded by the conductor. Especially is this true if the evidence tends to show that before he boarded the train he had voluntarily sought to get from the station agent a ticket and a credit slip in pursuance to a contract entitling him to a rebate when he had purchased tickets amounting to a certain sum, but was not able to do so because the agent could not change the bill which he offered in payment.
    
      4. -:-: -: rebate SLIP: evidence. Where a passenger tried to purchase a ticket from the agent but could not because the agent could not change the bill which he offered in payment, it is proper, if he was ejected from the train for refusal to pay fare, to permit him to show that he made tender of the fare on condition that he be given by the conductor a credit slip entitling him to a rebate on the terms mentioned in his “credential book,” and also to show that it was the habit and custom of defendant’s conductors to issue such slips in similar eases. In such ease the passenger is entitled to a reasonable indulgence in the discussion of his rights, and if the credit slip is still refused, a tender of the money for his fare, if made before or during the process of his expulsion, is timely.
    5. -: -: burden of proof. The burden is on the railroad to show that one ejected from a train was put off for failure to pay fare, or for some other statutory ground.
    6. -: -: from moving train. A passenger can not be ejected while the train is in motion for failure to pay fare or for other reasons. And the company is liable if he is ejected from a moving train: to nominal damages, if not injured; and to substantial damages, if injured.
    7. -: -: credit SLIP: evidence: knowledge. It is immaterial whether or not the passenger knew that conductors on trains were authorized to issue, or were in the habit of issuing, credit slips to holders of credential books authorizing them to rebate. The only question is, whether or not the conductor who refused to give him such a slip was authorized to receive it.
    Transferred from St. Louis Court of Appeals.
    Reversed and remanded.
    
      W. O. L. Jewett & Son, O. D. Jones and B. A. Cleek for appellant.
    
      Spencer & Mosman, J. D. Dale and George W. Humphrey for respondent.
   FOX, J.

This cause was certified to the Supreme Court by the St. Louis Court of Appeals, for the reason that in the opinion of one of the judges of that court, the opinion announced is opposed to the decision of the Supreme Court in the ease of Perkins v. Railroad, 55 Mo. 201. The full statement of facts and the opinion of the St. Louis Court of Appeals, by Judge Bond, are as follows:

“I. This action is for the unlawful ejection of a passenger from a train of defendant, which the petition alleged was done by the conductor in a rude, angry and violent manner to the great bruising and injury of plaintiff’s body. The petition asked judgment for $1,000 for actual damages occasioned by physical injuries, loss of time and business, and $1,400 as punitive damages.
“The answer avers that plaintiff was put off the train because he refused to pay his fare and denies the other allegations of the petition.
“The evidence for plaintiff tends to show that on June 13, 1899, he applied to the station agent of defendant at Shelbina for a ticket to Quincy, Illinois, at the same time laying down a ten-dollar bill in payment and exhibiting a contract for a rebate upon the purchase of a certain number of tickets, which contract entitled him to receive a credit certificate for each ticket bought until the sum specified was expended for tickets. The station agent prepared the ticket requested, the cost of which was $1.60, apd after looking in his drawer and finding only silver in the 'sum of $3.40, proposed to plaintiff to wait until the train arrived when he, the agent, would get change for the ten-dollar bill from the conductor, and hand plaintiff a five-dollar bill, $3.40, the change already on hand, and the ticket for $1.60, thus completing the transaction. In a few moments the train arrived and the station agent in company with plaintiff approached the conductor and requested him to change the ten-dollar bill, the agent explaining that plaintiff wished to get a ticket to Quincy, and had a credential contract, and nothing less than $10 to pay for it. The conductor refused to change the ten-dollar bill, but said to plaintiff, if he wanted to go to Quincy to get on the train. Thereupon, the plaintiff boarded the train and after taking his seat was approached by the conductor who demanded his fare. He answered he had no ticket, as the conductor knew, but wanted to be protected in paying his fare by getting a credit slip for the amount thereof to be used as a future basis for rebate on the said mileage contract. "What was then said and done is thus detailed in plaintiff’s examination:
“ ‘I says: “You asked me to come in here and I want the benefit of my credential.” He says, “Damn you, I want your fare, I have got no time to monkey with you.” I says, “You can issue me a credential or fix me up a statement, you understand the situation.” He says, “What are you going to do?” I says, “What are you going to do?” He says, “Damn you, I will put you off.” I says, “Don’t you put me off.” He says, “I want your fare and I want it. damned quick, what are you going to do?” I says, “Are you not going to issue a credential?” He jerked the bell cord and the train began to slow up. I says, “Although it is unfair and unjust, rather than be put off the train this time of night, I will pay my fare. ’ ’ He then signaled by pulling the bell cord, signaled them on. He then says, “I want your fare and I want it damned quick.” I says to him, “Will you please, sir, go through the train and then come back and see me?” He then says, “Damn you,” and gave me a grab and started with me towards the vestibule.’
“ ‘Q. Did he take hold of you? A. He grabbed me by the left arm and jerked-me up, or jerked me out of the chair, the chair was a reclining chair. When he grabbed me up, says I, “Take this fare, don’t you put me off.” He says, “Damn you, you have got to get off here, ’ ’ and 'he pushed me on into the vestibule.
“ ‘Q. Was he before you or behind you? A. He was behind me pushing me on. When he got out into the vestibule he pulled the cord. I says, “Take tin's fare and don’t put me off this time of night.” He says, “Damn you, you have got to get off.” He then opened up the vestibule and pushed me down. Then he says, ‘ ‘ Take your grip or I will throw it off. ’ ’ I took my grip. The train was slowed up and he pushed me down. I fell and struck this side of my face on the coal cinders and bruised my leg. ’
“Plaintiff also testified as to other injuries occasioned by his expulsion from the train, and his great chagrin and mortification occasioned by the violence of the conductor in throwing him from the train. He further stated that he had in his hand the ten-dollar bill and tendered it in payment of his fare before and until he was put off the train.
“The conductor’s version of the transaction is, that when he asked plaintiff for his fare it was refused unless he would give plaintiff a - credit slip for the amount thereof to protect him in his credential contract, whereupon he proposed to put plaintiff off and signaled the train to stop. That after he stopped, plaintiff offered to pay his fare, when he signaled the train to resume its journey and again approached plaintiff and demanded his fare and after some words plaintiff positively refused to pay his fare and that he put him off the train. That in .so doing the only violence he used was to break the hold which plaintiff took on one of the brass rods in front of the car window when he reached the platform. That after this was done, plaintiff alighted and he closed thevestibule door and saw no more of him. The case was submitted to a special jury and a verdict and judgment rendered for defendant; whereupon plaintiff appealed to this court.
“Under the common law, carriers of passengers, for their own protection and for the comfort and convenience of the traveling public, were entitled to eject from their vehicles, without unnecessary force, any passenger who refused to pay the established fare for such transportation, or whose behaviour was disorderly or who was infected with a contagious disease. In this and many of the States, the doctrine of the common law on this subject has been superseded by statutes defining the causes and regulating the procedure for the lawful ejection of a passenger from the train upon which he has embarked.
“Our statute is, to-wit: If any passenger shall refuse to pay LA fare, or shall behave in an offensive manner, or be guilty of repéated violations of the rules of the company, it shall be lawful for the conductor of -the train and the servants of the corporation to put him and his baggage out of the cars', using no unnecessary force, at any usual stopping place, or near any dwelling house, as the, conductors shall elect, on stopping the train.’ [R. S. 1899, sec. 1074.]
“It' will be seen from the terms of the foregoing statute that a passenger can only be put off the train, for the reasons therein specified and in the manner therein prescribed, when it shall have been brought to a stop at one of its stations or near any dwelling house. With reference to these provisions, our statute is a literal copy of the one in force in the State of Wisconsin, and' it has been uniformly held in that State that such a statute by necessary implication prohibits the forcible ejection of a passenger for refusal to pay his fare, except at the places and in conformity with the other conditions specified in the statute. [Boehm v. Railroad, 65 N. W. 506, and cases cited.] And such is the uniform doctrine in other States having similar statutes. [Railroad v. Latimer, 128 Ill. loc. cit. 171; Railroad v. Branch, 45 Ark. 524; Stephens v. Smith, 29 Vt. 160.]
“A passenger is one who enters the vehicle of a carrier with the intention of paying in money the usual fare for his transportation, or who is supplied with a ticket or pass, entitling him to ride to a given point. After his relation a,s such is established, the next inquiry in the-construction of the statute is, what is meant by the terms, ‘shall refuse to pay Ms fare,’ upon which depends the lawfulness of his expulsion from the train? This particular delinquency, unlike the other instances of misconduct mentioned in the statute, concerns the carrier alone, and is of no interest to fellow-travelers. It authorizes a removal of the passenger upon the just principle that he who refuses to pay shall be refused a ride. The law only imposes the duty of carriage for reasonable hire; it does not force carriers to perform this obligation without any compensation. To protect them in the reasonable avails of their services, the statute (like the common law) permits them to compel payment of a just recompense under penalty of ejection, of a recusant passenger. In applying this wholesome doctrine, a greater number of the cases in other States have announced the rule that although the passenger who has once refused to pay his fare may change his mind and offer to pay his fare before any steps are taken for his expulsion, and thus gain the right to complete his journey; yet the moment anything has been done looking to his removal from the train, no submission thereafter, nor an actual tender of the fare during the process of his expulsion will make the same unlawful or entitle him to remain on the train. ■ [4 Elliott on Railroads, sec. 1637, and cases cited; 1 Fetter on Carriers of Passengers, sec. 314.] This rule, however, is not universal and its extreme rigidity is opposed to some well-considered cases in other States. [Railroad v. Garrett, 8 Lea (Tenn.) 438; Bond v. Railroad, 62 Tex. 442.] In- this State the question as to whether the, passenger may prevent his ejection if he actually tenders the money for the fare after the process of expulsion has begun, but before it is completed, has not been directly decided. The remarks of the court in Perkins v. Railroad, 55 Mo. 201, are far from determinative in themselves. The appeal in that case was by the defendant railroad and the principal question ‘reviewed was the' liability of such corporations for punitive damages. In considering, however, the admissibility of the evidence introduced by the respondent going to show that while he was being put off the train for refusal to pay the full fare demanded, a fellow-passenger offered to pay the balance of his fare, the court remarked that the trial court had correctly instructed that such evidence was ‘not proper to show that plaintiff was from that time entitled to remain on the car.’ It is evident that the mere offer or expression of a willingness to pay, whether by a passenger or other person, is quite adifferentthingfrom the actual tender of the money. The former would not be considered in a matter of contract for the payment -of money, as of any legal efficacy whatever, while an actual tender would, under such circumstances, completely stay the running of interest on a matured debt. Besides, the mere offer to pay fare might be followed by subsequent refusals of actual payment ad infinitum; and if that alone were sufficient grounds for the cessation of the ejection of a non-paying passenger, the railroad companies might find it out of their power to adhere to any schedule as to time in the running of their trains, and the traveling public might be subjected to the annoyance and inconvenience of repeated stoppages of the train thus- occasioned. No such consequences, however, could ensue if, after a first refusal, the carrier was only required to cease the ejection of a nonpaying passenger upon actual tender of the fare; for by receiving the money thus tendered, the company would at once get its own and escape even the delay attending a complete expulsion of a passenger, and necessarily avoid any future repetitions of the delay, in running its train, incident to controversies over fare with a passenger of a vaccilating mind. If the rulings as to the effect of second offers to pay fare in prevention of expulsion had been made to conform to this essential distinction between the actual tender of the money, and the mere promise or offer to pay, they would rest upon a just and rational basis which would effectually prevent any of the mischiefs sought to be escaped, by the doctrine of the finality of the first refusal to pay fare, as a ground of lawful ejection. A passenger is entitled to a reasonable indulgence in the discussion of his rights and duties in the payment' of fare when it is demanded by the agent of the company. This is illustrated in the case at bar. Here the uncontradicted evidence shows that the plaintiff had voluntarily sought to get a ticket before boarding the train and also a credit slip in pursuance to a contract to give him a rebate after purchase of tickets to a certain amount which was binding on the 'defendant; that his difficulty in this matter was explained to the conductor by the station agent of defendant. What is more natural than that the plaintiff when approached on the train should endeavor, while paying it, also to secure from the conductor a credit slip such as the station agent would have given him before boarding the train, if the ten-dollar bill, tendered in payment, could have been changed? .Nor do we think his insistence upon this to a certain degree was unreasonable, especially in view of the testimony which plaintiff proffered, but which was excluded by the court, tending to show that it was the habit and custom of the conductors on defendant’s road to issue just such credit slips in similar cases. Under these special circumstances, the subsequent actual tender of the money for his fare by plaintiff, if made before or during the process of his expulsion by the conductor, should have been accepted and he should have been allowed to remain upon the train. We therefore think that instruction number four, requested by plaintiff and refused by the court, is applicable to the phase of the evidence presented by the testimony given for plaintiff and that such instruction should have been given. The instruction is, to-wit:
“ ‘4. Although the jury should find that plaintiff did at first refuse to pay his fare, yet if, when he saw the conductor was stopping the train to put him off, he then changed his mind and offered to pay and tendered to the conductor the money for his fare, it became the duty of the conductor to accept it, and if you so find that plaintiff did thus offer to pay, your verdict must be for the plaintiff.’
“II. The learned trial court also erred in refusing the instruction (Ño. bi -vom-iocd-prl bv plaintiff, to the effect that the burden of sustaining the affirmative defense set up in its answer, by a preponderance of the evidence, rests upon the defendant. The defendant could only escape liability for putting plaintiff off the train by proving the happening of the contingency upon which such right would accrue under the statute, supra, and by further proving a compliance with all the provisions- of such statute regulating the mode and place of its enforcement. Necessarily the burden of sustaining this defense pleaded in the answer, rests upon the defendant.
“The learned trial court also erred in giving instruction number ten at the request-of defendant, which stated substantially that plaintiff would not be entitled to recover upon evidence that he was put off defendant’s train while it was in motion. This instruction is diametrically opposed to the provisions of the aforesaid statute, which requires that the train shall be stopped before the ejection of a passenger for the causes mentioned in the statute. For the breach of this statutory duty, defendant was clearly liable for nominal damages, irrespective of any injury caused thereby to plaintiff. If any injury resulted to ,plaintiff from his ejection while the train was in motion, then defendant would also be liable for substantial damages, but its infraction of any one of the statutory provisions regulating the right of expulsion — whether as to place or ¿stoppage of the train — of itself entitled an expelled passenger to recover nominal damages regardless of the infliction of any other injury upon him. [2 Rorer on Railroads, p. 666, and cases cited; Railroad v. Branch, 45 Ark. loc. cit. 529.]
“The learned trial court also erred in excluding the testimony tendered by plaintiff to prove that it was the usual custom and habit of conductors on defendant’s road to issue to passengers upon payment of cash fares, credit slips upon contracts like the one exhibited by plaintiff. Such evidence had a tendency to show a waiver by defendant "of the requirement in such contract with reference to the obtention of such credit slips from station agents at the time of purchase of tickets. If it went to the extent of showing a general custom and habit on the part of the conductors to issue such slips, it was clearly competent and it makes no difference whether plaintiff was advised of the authority thus conferred upon defendant’s conductors before entering the car; he had the right, if the authority existed, to demand its exercise. It is the fact of agency which binds the principal, not knowledge thereof by the party dealing with the agent. If the authority to issue such credit slips was confided by defendant to the conductor in charge of its train when plaintiff was put off, then his ejection was unlawful, and in the event of proof of such authority on another trial the jury should be so instructed.
“For the foregoing reasons the judgment herein is reversed and the cause remanded. Judge Bland-concurs. On motion for rehearing (which was overruled) Judge Goode withdrew his concurrence and dissented. ’ ’

We have reached the conclusion, after a careful' consideration of the case of Perkins v. Railroad, supra, that the opinion of the St. Louis Court of Appeals is-not in conflict with it.

The opinion as herein quoted, correctly declares the law, as applicable to the facts of this case; hence, we adopt it as the opinion of this court, and accordingly order that the judgment of the trial court he reversed and remanded.

All concur.  