
    C. J. Percy, Respondent, v. Metropolitan Street Railway Company, Appellant.
    Kansas City Court of Appeals,
    April 30, 1894.
    1. Evidence: pleading: reasonableness op regulation as to transfer tioket. In an action for unlawful ejection from a street car, evidence that regulation requiring the holder of a transfer ticket to take the other line at the point of transfer; was reasonable and necessary to protect the company against fraud and imposition?" is admissible without being specially pleaded, and the admission of such evidence is not a violation of the rule declared in Northrup v. Insurance Company, 47 Mo. 435.
    
      2. Street Railways: regulation as to transfer check reasonable : acceptance op CHECK. A regulation requiring a transfer check is not unreasonable and the passenger must comply with the condition thereof to entitle him to passage; and this is so when the charter of ■ the company provides for passage over two lines for one fare.
    3. -: -: conductor’s duty: ejecting passenger. When a passenger enters the car at a point other than that prescribed by the transfer check which he has accepted, it is the duty of the conductor not to receive the ticket and to require the payment of fare; and if plaintiff refuse to pay, the company can not be held liable for putting him off the train without physical hurt or damage.
    
      Appeal from the Jackson Circuit Court. — Hon. Ed. L. Soarritt, Judge.
    Reversed.
    
      James Black and Pratt, Ferry & Hagerman for appellant.
    (1) Defendant’s instruction for a verdict should have been given. Woods v. Railroad, 48 Mo. App. 125, 130; Hejfronv. Railroad, 52 N. W. Rep. (Mich.) 802; Pine v. Railmad, 52 N. W. Rep. (Minn.) 392; Bradshaw v. Railroad, 135 (Mass.) 407; Gale v. Railroad, 7 Hun, 670. (2) The court erred in excluding the offer of proof from Mr. McCarty; Woods v. Railroad, 48 Mo. App. 125.
    
      Porterfield <& Pence for respondent.
    (1) Appellant in its brief entirely ignores the real issue in this case, which is a question of pleading. Defendant’s only pleading to the petition was a general denial. Defendant insisted that it should have been permitted to prove its regulations under the general denial. If the lower court was right in excluding evidence of defendant’s rules then all of the numerous instructions asked by defendant based upon the rules were properly refused by the court. There is one precedent in our own reports which we regard as exactly in point on this question; the case of Hides v. Railroad, 68 Mo. 329; Bliss on Code Pleading [2 Ed.], §ec. 352, secs. 327, 330, and cases cited. Pomeroy’s -Remedies and Remedial Rights, secs. 657-661. The whole transfer arrangement was simply an arrangement or regulation of the company for the convenient management of its business, and made in pursuance of its duty to carry and transfer passengers from one of its lines to another. The plaintiff did not count upon the transfer check; he made his case upon the petition without it. Defendant introduced it in evidence, or a check similar to the one received by plaintiff, over the objection of plaintiff, and sought thereby to prove the rule or regulation of the company that the passenger must enter the defendant’s car at the point of transfer. We submit that it had as much right to introduce evidence of an accord and satisfaction, or any other matter in confession and avoidance, under the general-denial. The rule or regulation of the company was strictly new matter. It was an attempt to prove a fact which was not included in the allegations necessary to the support of the plaintiff’s case. Northrwp v. Ins. Co., 47 Mo. 435; Kersey v. Garten, 77 Mo. 645; Myer v. Broadwell, 83 Mo. 571, 574; Musser v. Adler, 86 Mo. 445; Hyde v. Hazel, 43 Mo. App. 668, 671.
   Smith, P. J.

This is an action ‘ by plaintiff to recover of defendant, an incorporated street railway company, damages for the wrongful ejection from one of its trains by the conductor thereof. There was a trial in the circuit court, resulting in a judgment for plaintiff, from which defendant has appealed.

The case appears, from the record before us, to be something like this: The defendant, at the time of the injury complained of, was operating what is known as the Fifth street line, running from Kansas City, in the state of Kansas, to Market Square of Kansas City, in this state. It also operated another line, known as the Eighteenth street line, running north on Main street to Third, and south on Delaware from Third, crossing the Fifth street line at the intersection of Fifth and Delaware streets, where there was stationed a transfer agent, whose duty it was to give transfer checks to passengers, leaving one line to take passage on the other. Plaintiff, at some point on defendant’s Fifth street line, took passage on one of its trains and, on arriving at Fifth and Delaware streets, left the .same and obtained from the defendant’s agent stationed there a transfer check, which on its face provided that “this check will be received only from passengers getting on Eighteenth street line at corner of Fifth and Delaware streets. ” The cable on the last named line had temporarily stopped from some cause, and so plaintiff walked south three blocks, to Seventh and Delaware streets, where there was a train standing, which, had the cable been in motion, would not have been one on which he could have taken passage, because it had passed Fifth street before plaintiff reached there. The. plaintiff entered this train, and almost immediately thereafter it started. He tendered the transfer ticket to the conductor in payment of his fare, which was refused. The conductor insisted to plaintiff that he could not ride on this ticket, because he did not enter the train at the corner of Fifth and Delaware streets. The conductor further told plaintiff that he must either pay his fare or leave the train. The plaintiff then told the conductor that he considered the ticket good and that he would not pay another fare, and that, if he wanted him to leave the train, he would have to put him off. The conductor then ejected the plaintiff from the car, using no more force than was necessary for that purpose. The ejection was not accomplished - under such circumstances as indicated malice or wantonness. The question is, whether, on this state of facts, the plaintiff is entitled to recover.

The defendant offered to prove by the defendant’s general manager, who had been introduced as a witness by-plaintiff, that the only way defendant could protect itself in the operation of its several lines of railway against fraud and imposition was to require that the passenger receiving a transfer ticket should get on the other line at the point of transfer. This offer was rejected, on the ground that the defendant had not -pleaded the ‘rule or regulation which it was offered to prove. If plaintiff accepted, as it appears he did, the transfer ticket plainly telling him that he was required to enter the train of the Eighteenth street line at the corner of Fifth and Delaware streets, he was not entitled to take a car on that line at another and different point. By accepting such transfer he so far consented to the regulations of the defendant in respect to the place designated for entering the cars of the line on which the ticket entitled him to ride. Pine v. Railroad, 52 N. W. Rep. 392. If there had been any question as to the reasonableness -of the regulation, it would have been error to have rejected the defendant’s offer. Woods v. Railroad, 48 Mo. App. 125. Evidence of the existence of the regulations under which plaintiff accepted the transfer ticket would have tended to disprove plaintiff’s entire cause of action, which was for his wrongful- ejection from defendant’s train. It would tend to show that the transfer ticket on which plaintiff based his right to ride on defendant’s train conferred no such right under the peculiar circumstances of the case. Evidence tending to establish such regulation or its reasonableness is admissible in such case without being specially pleaded. Logan v. Railroad, 77 Mo. 663; Alcorn v. Railroad, 108 Mo. 81; Woods v. Railroad, 48 Mo. App. 125. And to admit such evidence is not violative of the rule declared in Northrup v. Ins. Co., 47 Mo. 435, and the cases that have followed it, for the very obvious reason that such evidence tends to establish facts which are included within the allegations necessary to the slxpport of the plaintiff’s case.

We think that it is now fairly well settled that a regulation requiring a transfer check is not unreasonable, and that a passenger must comply with the conditions thereof to entitle him to passage. And this is so when the charter of a railway company provides fox-passage over two lines for one fai-e. We caxx discover nothing unreasonable in the requirement of the defendant’s regulation printed on the face of the transfer ticket itself.

It was clearly the duty of the conductor when the plaintiff entered defendant’s train at a point other than that of transfer not to receive the ticket and to require the payfnent of five cents fare, and if the plaintiff failed to make such payment, as he did, then the defendant can not be held liable fox- putting plaintiff off the train without physical hurt or damage.

It inevitably must follow from this that the cireuit court erred in refusing to instruct the jury in effect that the plaintiff was not entitled to recover, axxd that the judgment must be reversed.

All concur.  