
    The Cincinnati Northern Traction Company v. Rosnagle, an Infant.
    
      Expulsion of infant passenger — By conductor from railway train— For alleged failure to pay fare — Company liable for error of judgment by conductor — Question of legal nature of coin tendered — Redemption of coin by government — Fright and terror proper elements of damage, when.
    
    1. The power of a railway company to expel from its cars persons who refuse to pay the legal fare is vested in the conductor in charge of such cars. But if the conductor wrongfully expels • one who is entitled to the rights of a passenger, the company is liable to such person in damages, even though such expulsion is doné through an error of judgment on the part of the conductor in charge.
    2. A coin issued by authority of law to circulate as money is not deprived of its legal tender^ quality, merely by being worn in the process of circulation nor when bruised or cracked, so long as it is not appreciably diminished in weight and retains the evidence of its being genuine coinage. And when a passenger . on a car of a common carrier tenders such a coin in payment of his fare which is refused, and the passenger ejected, he may maintain an action for damages against the company, even though the conductor in good faith believed the coin not to be legal tender. In such case the passenger is not required fo tender other money in payment of his fare.
    3. The rules of the United States Treasury Department in regard to the redemption of coins authorized by statute relate simply to redemption and do not affect the question of legal tender.
    .4. In an action by an infant of tender years for wrongful ejectment from a railway car or train, which wrongful ejectment was wilful and intentional, fright and terror are proper elements of damage if such ejectment was under circumstances which would naturally cause fright and terror to the infant.
    (No. 11937
    Decided June 13, 1911.)
    Error to the Circuit Court of Warren county.
    
      ■ This was a proceeding brought in the common pleas court of Warren county by Howard F. Ros■nagle, an infant, by his next friend, against the .Cincinnati Northern Traction Company. On May 21, 1907, the infant resided at Franklin in Warren county, and was about ten years old. On that day he went to the city of Middletown in Butler county on an errand, and in the evening boarded one of the defendant’s cars at Middletown to go to his home. When the car was near the outskirts of the city the conductor asked him for his fare and he tendered him a nickel. The conductor refused to accept the nickel and requested him to leave the car, which'he did.
    The petition sets forth these facts together with the further allegation that the night was dark and that he became greatly frightened' and went to the home of a nearby resident, who gave him care and assistance and it alleges that he was damaged in the sum of one thousand dollars.
    The answer of the defendant admits the tender of the nickel and -all the. other facts, except as to damages, and further answering says that said Howard F. Rosnagle got upon the car of said defendant at 'or near Third street in the city of Middletown, Ohio, and rode upon said ’ car to the east corporation line of said city; that when the conductor of said car demanded of him his fare he tendered to said conductor the coin commonly termed a nickel; that said coin had been mutilated, defaced and was cracked; that the conductor of said car informed said Howard F. Rosnagle that he could not take said nickel owing to the condition that the same was in and said Rosnagle informed the conductor that said nickel was all the money he had, and thereupon said conductor informed said Rosnagle that he would have to pay his fare or get off the car; that said Rosnagle thereupon voluntarily left the car at said point.
    Plaintiff filed a^ reply in which he denies that he voluntarily left said car of the defendant. On the trial a verdict was returned in favor of the plaintiff upon which judgment was entered. This judgment was affirmed by the circuit court and error is now prosecuted here to reverse the judgments below.
    The nickel that was tendered by plaintiff to the conductor is in evidence and it is conceded that five cents was the regular and legal fare between the points named. The error alleged and relied on by the plaintiff in error is, that the court of common pleas charged as a matter of law that the particular nickel tendered and introduced in evidence was legal money of the United States, and a legal tender for five cents. It is claimed that there are other errors in the charge which will be noticed in the opinion.
    
      Mr. W. C. Shepherd, for plaintiff in error.
    It would seem by Sections 3505, 3529, 3585, 3586 and 3587, Revised Statutes of the United States, that so long as the genuine silver coin or one of the genuine minor coins is worn only by natural abrasion, is not appreciably diminished in weight and retains the appearance of a coin duly issued from the mint, it is legal tender for its original value. This doctrine is laid down in the eases of United States v. Lissner, 12 Fed. Rep., 840; Railroad Co. v. Morgan, 52 N. J. L., 60; Railway Co. v. Watters, 135 Ala., 227.
    
    We do not understand that fright and terror are elements which the jury can consider in awarding compensation. The only element that enters into this case is that of mental suffering.
    The supreme court of this state in Smith v. Railway Co., 23 Ohio St., 10, held that the injury to the feelings caused by a public expulsion from the car is a proper subject for the consideration of the jury in awarding damages. That is as far as the court has gone in this 'state.
    In Miller v. Railroad Co., 78 Ohio St., 309, the court holds that ño liability exists in an action for negligence caused from mere fright or shock.
    It seems to' us that the fright and terror this boy was put in, by his expulsion from the car, and there was no physical injury, would have come under the ruling of the court in the case of Miller v. Railroad Co., supra.
    
    In a case of this kind where a passenger is expelled from a car and seeks to recover for fright as an element of damages, the ground of the recovery is based upon the contractual relation of the parents. Railway Co. v. Gott, 20 Tex. Civ. App., 335; Railway Co. v. Hayter, 77 Am. St. Rep., 866.
    
      Mr. P. H. Rue, for defendant in error.
    The nickel in question was as clearly subject to redemption or exchange as if it had become imperfect or worn by natural abrasion, and coins of this description, so long as their genuineness can be determined, are held to be a legal tender for car fare. Ruth v. Transit Co., 71 S. W. Rep., 1055; Traction Co. v. McClevey, 126 Ill. App., 21.
    We contend that it is well settled that where a right of action for damages arises by reason of the defendant’s tortuous act, independent of the fright or other distress of mind then the plaintiff is, as a part of damages to be recovered 'for such wrongful act, entitled to have his mental suffering or distress of mind, which was the natural or proximate result of such act, taken into consideration in fixing- his damages, even though there may have been no physical injury. Smith v. Railway Co., 23 Ohio St., 10; Railway Co. v. Ebert, 19 C. C., 725; 6 Cyc., 566; Gorman v. So. Pac. Co., 97 Cal., 1; Sloane v. Railway Co., 111 Cal., 668; Railway Co. v. Flagg, 43 Ill., 364; Railway Co. v. Holdridge, 118 Ind., 281; Curtis v. Railway Co., 87 Ia., 622; Railway Co. v. Rice, 38 Kans., 398; Willson v. Railroad Co., 5 Wash., 621.
   Johnson, J.

There is no claim that the five cent piece which was tendered by plaintiff was not originally a genuine coin issued by the United States.

The testimony and an inspection of the coin disclose such genuine character. It has the appearance of being somewhat bruised and there is a slight crack from the rim toward the center.

The minor coins of the United States are provided for. by Section 3515, Revised Statutes of the United States, in which the alloy and weight are prescribed. Section 3587, Revised Statutes of the United States, provides that the minor coins shall be legal tender at their nominal value for any amount not exceeding 25 cents in any one payment.

It is not doubted that a railway company may expel from its cars persons who refuse to pay the legal fare. Necessarily that inherent power is vested in the conductor employed by the company and placed by it in charge of the train or car. But if the company wrongfully expels one who is entitled to the rights of a passenger, it is liable in damages to such person, and this is so even if such expulsion is done through an error of judgment on the part of the conductor or agent in charge.

And where a passenger tenders to the conductor a genuine coin of the United .States, not so worn, defaced or mutilated, but -that its ’mint marks are plainly discernible and not appreciably diminished in weight, and such tender is refused and the passenger ejected on refusal to pay in other money, he may have an action of damages against the company. And this is so even if the conductor in good faith believed the coin to be counterfeit or not a sufficient coin.

In such case the passenger is not required to tender other money if the first coin tendered was sufficient. Chicago Union Traction Co. v. McClevey, 126 Ill. App., 21; Jersey City & Bergen Rd. Co. v. Morgan, 52 N. J. L., 60; Mobile St. Ry. Co. v. Watters, 135 Ala., 227; Atlanta Con. St. Ry. Co. v. Keeny, 99 Ga., 266.

In Jersey City & Bergen Rd. Co. v. Morgan, 52 N. J. L., 60, the court in the opinion say: “It seems by these statutes (U. S. Statutes) that so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value. The coin in question in this case was shown to the court and jury, but does not appear in the evidence to have been so worn that it was light in weight or not distinguishable as a genuine dime. ■ If' no limitation is put upon its circulation by the government it would seem none was intended so long as it was not defaced, cut or mutilated, and was only made smooth by constant and long continued handling and by being circulated as a part of the national currency.”

■ The question as to what treatment, usage or acts amount to mutilation of coins was before the court in United States v. Lissner, 12 Fed. Rep., 840, and the court in that case hold: “Where a coin which had been regularly coined at the mint was afterwards punched and mutilated and an appreciable amount of silver removed from it, and the- whole plugged up with base metal, or any substance other than silver, it is an act of counterfeiting; but it is otherwise where the hole was punched with a sharp instrument, leaving all the silver in the coin, through crowding it into a different shape.”

Now in this case as to the five cent piece or nickel, the bruise and the crack may have been caused by a blow from a hammer or other heavy instrument, but it retains all of its material and all of the evidences of genuine coinage, though the material is very slightly “crowded into different shape.”

There is not such mutilation, defacing, punching or cutting as to deprive it of its legal tender character within any of the rules laid down in the authorities or the statute. The law does not require that minor coins tendered in payment of debt or for service which the person making the tender has the right to demand, shall be absolutely perfect.

It is contended by defendant in error that so long as a coin is in such condition that it would be redeemed by the United States Government, it does not lose its legal tender character.

The trial court appears to have adopted this as a reasonable test by which to determine the question. The United States Statutes provide that the treasury department may prescribe rules by which coin and paper money which may become unfit for circulation may be redeemed or exchanged, and such rules have been so prescribed. One of the provisions is that “pieces that are stamped, bent or twisted out of shape or otherwise imperfect, but showing no material loss of metal will be redeemed.”

We do not think that the existence of this rule, even though adopted under sanction of the statute, would justify the tender to a railway company or other creditor of a coin which “had become unfit for circulation,” and thus impose on the payee the burden of applying to the treasury department for a coin fit for circulation nor to impose on him the risk of failing to obtain it.

This view in a case where a piece had been torn from a one dollar bill, was adopted by the court in North Hudson Ry. Co. v. Anderson, 61 N. J. L., 248.

In this case we think the evidence shows the coin was not so affected in any manner as to be deprived of its legal tender character and therefore the court did not err in its charge to the jury in that regard.

Plaintiff in error also urges that the court erred in its charge as to the measure of damages. The court charged that “if by the wrongful act of defendant, plaintiff was put off the car under circumstances which would naturally result in great fright and terror to the boy, he is entitled to have proper compensation for that injury.” It is contended that fright and terror are not elements that can- be taken into consideration in awarding compensation, and the case of Miller v. Ry. Co., 78 Ohio St., 309, is relied on in support of this contention. That case was an action for negligence. The court, Crew, J., points out that there was no claim that the negligence of the defendant was wilful or wanton. There was no intentional wrong. In the opinion many cases are examined and discussed, all of which are negligence cases and the conclusion of the court was that no liability exists for acts of negligence causing mere fright or shock where the negligent acts complained of are neither wilful nor malicious.

Such a rule is salutary and necessary in negligence cases. But the reasons for the rule do not apply in cases where the act complained of is not only wrongful but intentional and wilful. In such a case mental suffering and fright and terror where they would naturally ensue as in case of an infant ten years old wilfully expelled from a car at night may be taken into account. 6 Cyc., 566; Curtis v. Ry. Co., 87 Ia., 622; Smith v. P., Ft. W. & C. Ry. Co., 23 Ohio St., 10; C., St. L. & P. Rd. Co. v. Holdridge, 118 Ind., 281; Sloane v. Ry. Co., 111 Cal., 668.

- We find no error in the record and the judgments of the courts below will be affirmed.

Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.  