
    The P. C. C. & St. L. R’y Co. v. Reynolds.
    
      Rights of passenger — Duty of common carrier — Recovery for tort and not merely breach of contract, established by state of facts.
    
    Where a person has a ticket, purchased from a company engaged in the business of a common carrier of passengers entitling him to be carried from a certain station to another on the line of its road, and is good only on trains stopping at his destination, is, by the fault of the company’s station agent, induced to take a train that does not, under the schedule stop at such place, and as a consequence, is ejected by the conductor on calling for his ticket, and before reaching his destination, such facts show a right in the passenger against the company to recover as for a tort, and not merely for a. breach of contract.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Warren county.
    The action below was a suit brought by the plaintiff to recover damages of the defendant for wrongfully ejecting him from one of its trains. The issues having been made up, the case was tried to the court on an agreed statement of the facts. The statement is as follows:
    “On the 4th day of July, 1891, the plaintiff and his son, aged 12 years, at South Lebanon, purchased at reduced rates of the ticket agent of the defendant, two round-trip excursions tickets from South Lebanon, to Loveland, Ohio, and return, the distance between said points being nine miles; that the going portions of said tickets bore upon their face the following: “Good for a continuous trip, South Lebanon to Loveland, until July 6, 1891, if stamped by agent and presented on trains stopping at points named before expiration of time limit,” and the return coupons bore the.same, except that they read, “From Loveland to South Lebanon,Ohio;” The plaintiff and his son went to Loveland on the 4th day of July, 1891, on one of the defendant’s trains ; that on the 5th day of July, as they went to the station of the defendant in Love-land for the purpose of returning to South Lebanon, they saw a train approaching’ the station, and the plaintiff went to the window of the ticket office of the defendant and asked a man in the ticket office if that train just coming in would stop at South Lebanon, to which the man replied, “Yes; and the only one that will stop there to-day;” that, thereupon, the plaintiff and his son got upon the train without making further inquiry or being- stopped by the trainmen, and when a short distance out from Loveland the conductor of the train asked the plaintiff and his son for their fare; that the plaintiff tendered the two returning coupons described as aforesaid, which the conductor declined to accept, stating that his train did not stop at South Lebanon, but stated that his first stop was at Morrow, the first station immediately east of South Lebanon, and he would accept the returning coupons in part payment of their fare, and thejr could pay him the fare from South Lebanon to Morrow in cash, amounting to 25 cents for the two; that plaintiff replied he had no money, and that the ticket agent at Loveland had told him that that train stopped at South Lebanon and was the only one that would that day; thereupon the train was stopped about two miles from Loveland, between five and six o’clock in the afternoon, and upon the demand of the conductor, the plaintiff and his son were compelled to leave the train at a place where there was no station and where there was a fill - and steep bank, but that no force was used in their removal -from the train, and from there they walked to their home in Lebanon.
    “It is agreed that the ticket agent at Loveland had no power to change the terms of the tickets or to order the train to stop at South Lebanon, and that the train was one which did not stop at that station.
    “One of said return coupons is hereto attached, marked exhibit A.”
    The following is the exhibit:
    
      
    
    
      It is agreed that the coupons were stamped on the back by the agent at South Lebanon.
    The court, on the agreed statement, found for the defendant, and dismissed the plaintiff’s petition. A motion for a new trial was made and overruled, and exceptions taken. The agreed statement of facts is made a part of the record by a bill of exceptions. On error to the circuit court, the judgment was reversed on the ground that “the court erred in finding that the plaintiff had not stated a cause of action which was sustained by the agreed statement of facts.” This is the question presented here on error. In his petition the plaintiff averred that the defendant is a common carrier of passengers in this state; that on July 4,1891, he purchased of the defendant’s agent at South Lebanon two round-trip tickets to be valid until July 6, one for himself and one for his son, who was about eleven years of age, entitling him to ride from South Lebanon to Loveland and return on trains of the company, and “that on the 4th‘dayof July, 1891, he boarded one of defendant’s trains at South Lebanon, and went to Loveland, as he had a right to do on said ticket, and on the 5th day of July, desiring to return to South Lebanon, the plaintiff entered the defendant’s office at Loveland and inquired of defendant’s agent, there, if the train then approaching was the one for him to take to South Lebanon ; said agent replied that “it was, ” and “that it was the only train that would stop there that night;” thereupon the plaintiff and his said son boarded said train, and while riding on said train, at a point about two miles from Loveland, defendant, by its agent, the conductor then in charge of said train, assaulted plaintiff and ejected him and his said 'son, without cause or fault on his part, from said train of said company and before the end of plaintiff’s said journey, and before the arrival of said train at anjr station; and plaintiff further states that he tendered, the tickets purchased as aforesaid, for return passage • to South Lebanon, Ohio, to° the conductor of said train, which he refused to accept, and ejected plaintiff from said train, to his damage in the sum of $1,000. 'Wherefore plaintiff prays judgment against defendant in the sum of one thousand dollars.”
    The case is here on error to reverse the judgment of the circuit court; and the only question presented is, whether, on the facts, the case made in the petition was sustained.
    
      Gha/t'les Darlington, for plaintiff in error.
    The train was one that did not stop at South Lebanon. The plaintiff had a ticket that did not entitle him to ride upon that'train. He was in the position of a passenger without a ticket. He could do one of two things. He could pay his fare to the next station at which the train did stop. This the conductor proposed to do, accepting as part pay the ticket in question. The plaintiff refused to do so. It was then his duty to get off. As between the conductor and the plaintiff, the latter was then on the train without, a right to be there, and it became the right of the conductor to put him off. This was done in a proper manner. R. R. Co. v. Skillman, 39 O. S., 444.
    No violence offered him and none claimed in the evidence. Should the company then be mulcted in exemplary damages, as is sought in this action, because the conductor performed his duty? A brief consideration of some of the adjudicated cases bearing upon this question will, it seems to me, make clear the fact that it should not be, and that the plaintiff mistook his remedy. The A. T. & St. F. R. R. Co. v. Gantz, 38 Kan., 608; Frederick v. R. R. Co., 37 Mich., 345; Yorton v. The M. L. S. & W. Ry. Co., 54 Wis., 234; Townsend v. Railroad Co., 56 N. Y., 295; Railroad Co. v. Griffin, 68 Ill., 499 ; Shelton v. Ry. Co., 29 Ohio St., 214; McClure v. Railroad Co., 34 Md., 532; Bradshaw v. South Boston R. R. Co., 135 Mass., 407; Petrie v. Penn. R. R. Co., 42 N. J. L., 449; Railway Co. v. Pierce, 47 Mich., 277; Hufford v. Railroad Co., 53 Mich., 118; McKay v. Ohio R. R. Co., 11 Southeastern Rep., 737.
    The conclusion from these authorities is that the plaintiff, riding upon that train without a ticket entitling him to do so, and refusing to pay to a station at which the train stopped, was properly ejected from the train.
    The conclusion from these authorities equally is, that the misdirection of the agent caused a breach ’of the contract to carry, and for which in a proper action he is entitled to recover.
    
      William McDonald and W F. Fltzroth, for defendant in error.
    Counsel for plaintiff in error contends that defendant in error has misconceived his remedy, he having brought an action in tort, while his right of action was for a breach of contract.
    The learned judge of the court of common pleas held that the recovery should be for a breach of the contract. But how can this be? There was no refusal of the defendant to carry the plaintiff on trains stopping at South Lebanon, as agreed in the contract, but there was a refusal to carry plaintiff to South Lebanon on an express train which did-not stop at South Lebanon. There was no breach of the contract in this, and he was put off of this train rightfully, perhaps, so far as the conductor was concerned. But he was wrongfully placed by the company, without fault on his part, on this train, and he has the right to secure whatever damage may have resulted to him by reason thereof. Therefore, he has a cause of action. What is it?
    Similiar actions have given rise to considerable discussion as to the motive of such actions and there has been a conflict of decisions on the question, especially in England, but under our rules of pleading, such distinctions are not considered of vital importance. 50 N.W. Rep., 104; Railway Co. v. Pauson, 17 U. S. C. C. of Appeals, 287; McGinnis v. Railway Co., 21 Mo. App., 407; Railroad Co. v. Roberts, 91 Ga. 513; 18 S. E., 315; Hall v. Railroad Co., 15 Fed. 59. In all such actions the plaintiff is not to be confined in his recovery to the price of his extra tickets or fare or mere loss of time, but the jury may award damages for the humiliation or injury received by his wrongful expulsion from the train. Zion v. Southern Pacific Co., 67 Fed., 503, and authorities there cited. Poole v. Railroad Co., 16 Or., 261; 19 Pac., 107; State v. Hungerford, 39 Minn., 7; 38 N. W. 628; Everett v. Railway Company, 69 Iowa, 15; 28 N. W., 410. Unless the railroad company furnishes the necessary conveniences or facilities for procuring tickets, the passenger cannot be considered to be in any manner at fault. Ray, Neg. Imp. Dut. 181.
    With reference to the right of a passenger to be carried on the wrong coupon, where the coupons are detached by the conductor on the going trip and the returning coupon, instead of the going coupon, is retained by the conductor, and the going coupon instead of the returning coupon, given to the passenger, which the passengér retains without discovering the mistake until he presents it to the conductor on the return trip, and then makes his explanation as to how the mistake occurred, the courts have held that under such circumstances the passenger has the lawful right to be carried on his return trip on presenting the going coupon with the explanation, and, if expelled for not paying his fare, he is entitled to recover damages for the expulsion. Pennsylvania Co. v. Bray, 125 Ind., 229, 25 N. E. 439; Railway Co. v. Fix, 88 Ind. 381; Railroad Co. v. Bambrey (Pa. Sup.) 16 Atl., 67; Wightman v. Railway Co. (Wis.) 40 N. W., 689. Railway Co. v. Rice, 64 Md. 63, 21 Atl., 97. Rouser v. Railway Company, 97 Mich., 565, 56 N. W., 937. These cases as well as the others previously referred to, all proceed upon the broad ground that the passenger was wholly without fault; that he had done all that could reasonably be required of him to do; and that the railroad company, by the mistake, carelessness or negligence of its agents or conductors, was itself at fault. This is the underlying principle of all the well considered cases upon this subject. This principle is fair to both parties. It is sound, reasonable and just. In further support of it we cite the following additional authorities: Johnson v. Railway Co., 46 Fed., 734; Zion v„ Southern Pacific Co., 67 Fed., 506; Head v. Railway Co., (Ga.) 7 S. E., 217; Railroad Co. v. Dougherty, 86 Ga., 744, 12 S. E., 747; Railroad Co. v. Roberts, 91 Ga., 514, 18 S. E., 315; Railway Company v. Hennigh, 39 Ind., 509; Hufford v. Railroad Co., 64 Mich., 631, 31 N. W., 544; Railway Co. v. Mackie (Tex. Sup.) 9 S. W., 451; Railroad Co. v. Conley (Ind. App.) 32 N. E., 96; Murdoch v. Rail
      
      road Co., 137 Mass., 293; Muckle v. Railway Co., 79 Hun., 38, 29 N. Y. Supp., 732; McGinnis v. Railway Co., 21 Mo. App., 399; Burnham v. Railway Co., 63 Me., 298.
    So in this ease, Reynolds, having done all that he was required to do, having been, in fact, placed upon the train by the company itself, he was a legal passenger thereon and the railway company is liable in damages for his expulsion.
   Minshall, J.

We think there can be no question but that the petition states a cause of action founded on tort' — the wrong of the defendant by its agent in ejecting the plaintiff and his son from the train. Then do the facts contained in the agreed statement support the complaint? We think they do. The plaintiff and his son were at Loveland, and each had a ticket which required the company to carry them to South Lebanon that day, on anjr train stopping at that place. He inquired of the agent at the station if a train then approaching was the train for him to take. The agent said it was, and that it was the only train that would stop at his destination that afternoon. He then with his son boarded the train. It proved to be a wrong one. This was the fault of the company; and he and his son were, afterward, and before reaching their destination, ejected, because under the instructions the conductor had from the company, it was his duty to do so. The argument in support of thé company’s claim is, that the agent under the circumstances, had the right to eject them, as the tickets did not authorize the plaintiff and his son to ride on that train, because it did not under its schedule, stop at the plaintiff’s destination. And, therefore, the plaintiff’s .remedy was for a breach of the contract, and a different measure of damages would apply -in such case.

It may be observed that under the code this was not a sufficient reason for the judgment of the common pleas dismissing the action. For if the agreed statement showed the plaintiff entitled to any relief upon the averments of the petition, the court should have awarded it.- It makes no difference what the plaintiff may regard the nature of the wrong of which he complains, if the facts stated show that it is a wrong for which he should be compensated in ’ damages, and the proof supports his petition. But this is not material here, as we regard the facts disclosed by the agreed statement, as constituting a tort, and for which damages should- have been assessed him by the court under the case made in his petition.

There are some cases which seem to support the contention of the plaintiff in error, but they, as does the reasoning of the plaintiff in error, depend upon what seems to be an evident fallacy. They assume as a premise, that the act of the conductor in putting the plaintiff off, was rightful, and, therefore, the company cannot be held guilty of a tort. But the act of the conductor is immaterial except as it affects the liability of the company. The suit is not against him but against the company. As between the conductor and the company, the latter may have no right to complain of him. He violated no duty he owed to the company. He simply obeyed his instructions as received from the company, applicable to such a case. Therefore, it may well be said, that as between him and the company, the conduct of the conductor was rightful. But as between the company and the passenger, the question is wholly a different'one. Where a company by the act of a proper agent, causes a passenger, as in this • case, to take the wrong train — one that does not stop at his station —it must be held to have contemplated, that under the instruction given its conductor, the passenger would be put off the train as soon as the error should be discovered by the conductor, unless he should, as demanded, pay additional fare and be carried beyond his station. The act of the first agent of the company, misdirecting the passenger, is the wrongful act for which the company becomes liable in tort, and the act of the conductor in ejecting him is a consequence of the first wrongful act — is the proximate cause of the passenger being ejected; and as against the passenger, the act of the conductor in ejecting him, being the act of the company, is wrongful. The fallacy, as before stated, arises out of the mistaken assumption, that the act of the conductor is rightful as against the passenger. This can in no instance be the case, where the company is responsible for the mistake of the passenger in taking the wrong train. All the cases cited in support of the contention of the plaintiff in error, that in any way do so, are based on the fallacy that the conductor had the right to eject the passenger, when, as a matter of law, the real question is, whether the act of the company done by its agent, is rightful as against the ejected party. The question may be simplified by eliminating the fact of agency in each instance; that is, by supposing that the- common carrier in each instance, acts for himself or itself. Here no mind would doubt but that the carrier, having instructed the passenger to take one of his trains, with knowledge of his destination, would be a wrong-doer, should he on discovering his own mistake, eject him from the train, on the ground that he had taken the wrong train. But the intervention of an agent, by whom the act is done in each instance, does not change the ease. For each act of the agent, done in the scope of his agency, must be imputed to the principal — is, in law, the act of the principal. To use the language of Chief Justice Ryan, in Craker v. Railway Co., 36 Wis., 674, ''Quoad this contract and this passenger, the corporation was present on this train to care for her (the passenger,) represented by the officers of the train, who possessed, pro hac vice the.whole power and authority, and were the living embodi-' ment of the real ideal entity which made the contract, was bound to keep it, and is appellant here to contend that it has no responsibility for the . flagrant violation of the contract, which the respondent paid it to make and to keep, as its sole present representative appointed to keep it on its be- ■ half.”

The plaintiff in error claims that the case of Shelton v. Railway Company, 29 Ohio, St. 214, is decisive of this. There the plaintiff on a commutation ticket, had gone on the train from his home to Cleveland. For some claimed irreg’ularity in the ticket, it was taken up by the conductor of that train and returned to the general agent of the company, of which he notified the plaintiff. “ In the afternoon of the same day,” as stated in the report of the case, “the plaintiff not having recovered the commutation ticket, nor provided himself with a ticket, entered the defendant’s cars at Cleveland, which were then in charge of another conductor, to return to Vermillion, and was put off the cars at Berea, a regular station on the line, of defendant’s railway, by the conductor then m charge of the train, for refusing to pay' the fare prescribed by the defendant for a passage from Cleveland to Vermillion, for which last mentioned injury the action was brought. ’ ’ The court held that the plaintiff could not, under these circumstances, maintain an action for being put off the train; and that his' remedy was for the wrongful taking up of the ticket by the first conductor. When he took the train at Cleveland, he knew his ticket had been taken up, and must have known that he would be put off before reaching his home. He took the train to return with this knowledge, and his ejection was the result of his own fault. He should either, in this case, have purchased a ticket to return on or have paid fare when demanded. A party cannot, as a rule, recover damages for the aggravation of an injury caused by his own fault. In the case before us, the plaintiff, when he took the train at Love-land, did so by the fault of the company, and could not then have anticipated that he would be put off before reaching his destination. His right of action, then, is for the wrongful expulsion.

The case of Railroad Co. v. Gants, 38 Kan. 608, cited by the plaintiff in error, and quoted from, is not in' point, for the reason that there it was by his own fault that the passenger took the wrong train and was ejected; he made no inquiries as to the train he should have taken.

Most of the cited cases are, for like reasons, not in point. They go no further than to require the passenger to submit to the enforcement of the reasonable rules of the company, and deny to him the right to resist expulsion and recover for such injuries as he may receive thereby, yet allow a recovery for all other damages resulting from his expulsion, where wrongful on the part of the company. Thus in Railroad Co. v. Connell, 112 Ill. 295, it is said: “We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place where he was ejected from the cars to New York. He was also entitled to recover such damages as he sustained on account of the delay occasioned by the expulsion and all additional expenses necessarily occasioned thereby, as well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for the personal injuries received unless the expulsion was malicious or wanton.”

Not only the better reason, but the greater weight of authority are to the effect that when a passenger is ejected in a case like the present, he may recover damages as for a tort, for though the relation of the parties had its origin in contract, the ejection is in the nature of a tort, and he is not limited to such damages as would be proper in a mere breach of contract. In such cases it can make no difference to the passenger, so far as his injury is concerned, whether the wrong resulted from the breach of an obligation imposed by contract, or from the breach of a duty imposed by the law; the loss, inconvenience, delay and humiliation will be the same to him, and his damages should be measured by a like rule in either case.

On the question of the character of the plaintiff’s right of action and the measure of damages, and, also, on the liability of a company to a passenger ejected from one. of its trains, where, by the fault of its agents he took the wrong train, we refer to the following cases: Railroad Co. v. Roberts, 91 Ga. 513; McGinnis v. Railway Co.,21 Mo. App. 399; Gorman v. Railway Co., 97 Cal. 1; Railway Co. v. Hennigh, 39 Ind. 509; Hufford v. Railroad Co., 64 Mich,. 631; Railway Co., v. Pauson, 70 Fed. Rep., 585. In the last ease the decisions are pretty fully collected and reviewed. Pennsylvania Co. v. Bray, 125 Ind. 229.

The general principle derived from the cases is, that where, by the fault of an agent of the company, a passenger takes the wrong train, or is without a ticket, or one imperfectly or erroneously stamped, or for any similar reason, and is ejected by the conductor of the train, in pursuance of the rules of the company, it is liable to him as for a tort. The rule concedes to the company the right to make reasonable rules for the conduct of its business and to require their enforcement by its agents. The contingency that in certain cases the company will be made liable by the act of its conductor in following its rules, where the appearances on which he acted were created by the fault of another agent, of which he had no knowledge, is a risk incident to the privilege enjoyed of making rules, and it should suffer for the fault of the agent that caused the mistake, rather than an innocent person.

Judgment affirmed.  