Kibler v. Southern Ry.

January 13, 1902. The first opinion was delivered by The plaintiff brought his action to recover damages for an alleged unlawful ejection from one of defendant's passenger trains. The particular nature of the case will best be disclosed by the pleadings, and for this purpose a copy of the complaint and answer as set out in the "Case" should be included by the Reporter in his report of the case. It appears from the testimony to be an undisputed fact that the plaintiff, on the 6th day of May, 1900, boarded the train at Newberry for the purpose of going to Helena, the next station above Newberry, and about a mile distant, without a ticket, intending to pay his fare to the conductor on the train. As to what occurred between the plaintiff and the conductor, O.E. Hughes, after the train started, when the conductor went through the coach calling for tickets, there is a direct conflict in the testimony of these two gentlemen. According to plaintiff's version, it was as follows: "On May 6th, 1900, I got on a Southern Railway passenger train at Newberry, intending to become a passenger from Newberry to Helena, the next station, one mile distant. Passengers get on and off there. I had no ticket, but offered to pay my passage. I pulled the money out of my pocket as the conductor came in the coach, in the door. I don't know exactly how much I pulled out, but more than enough to pay my fare, more than ten cents; the conductor *Page 264 did not receive my fare. I asked him the fare, and he said thirty-five cents to the next station. I told him I would not pay it — I was willing to pay the fare, the regular fare. Q. How much was that? I had paid ten cents a short while before to go up there, to make the same trip; he demanded thirty-five cents. I did not offer to get off the train. He told me I would have to get off if I didn't pay the thirty-five cents. I did not willingly leave; I told him I wouldn't leave, and he said I would have to get off if I didn't pay the thirty-five cents. He stopped the train, pulled the bell about half way between Newberry and Helena, just above Kline's shops, told me to come to the door until the train stopped. I told him I would not move until the train stopped, and if he ordered me to get off then, I would have to get off. He said he would stop, and after the train stopped, ordered me to get off again. I got off * * * He didn't mention the `excess' — I would have been perfectly willing to pay it, if he had mentioned it. He did not offer any return check, did not mention it." In his cross-examination, the plaintiff said: "I did not know that the fare paid on train was higher than when a ticket was bought. I did not know there was a placard posted in the ticket office, calling attention to that fact. I had never heard of this excess until after this happened. I don't think I ever noticed the placard in the passenger coach * * * Q. Why didn't you buy a ticket? A. Well, before that, as I said, I had rode up there without buying a ticket — it was just carelessness, I suppose. I had paid ten cents to Capt. Billy Smith. Never paid to Capt. Hughes * * * The day was a fair one in May. I was put off about half way between Newberry and Helena, and walked to Helena. The road was very good. Conductor spoke roughly to me when he demanded the thirty-five cents; I don't remember the words, he told me I would have to get off. He didn't put his hands on me." On the other hand, the conductor's version of the matter was as follows: "When we left Newberry and I went through the colored car and took up all the tickets that I could find in there, and got about *Page 265 half way to the white coach, I found this gentleman (the plaintiff), standing up in the aisle of the train, and he said he was going to Helena, and pulled some change out in his hand — I don't know the amount. I told him the fare would be thirty-five cents, and I would give him a rebate check that he could have cashed at any agency in the State, any of the Southern Railway agencies, and he said he wouldn't pay it. I told him that was the rule of the company, and I would give him a rebate check and he would have no trouble about that. He said, `I won't pay it, I will get off.' I stopped the train and he walked down and got out of his own accord. He proposed my stopping the train before I said anything about putting him off or ejecting him. If he had declined to get off, I would have put him off in as gentle a way as I could. I have the instruction from the railroad company with reference to that matter." This witness also testified to the fact that notices were posted in the ticket offices and in the passenger coaches, calling attention to the fact that passengers without tickets would be charged a higher rate than the ticket rate, and he also testified that the ticket office at Newberry was open upon the arrival of the train which plaintiff boarded. Another witness, S.H. McLean, testified that he was ticket agent at Newberry on the 6th May, 1900, and that the ticket office was open for thirty minutes before the arrival of said train. He also testified to the posting of the notices above referred to in the ticket office at Newberry and in the passenger coaches. Circulars issued by the railroad commissioners were offered in evidence, one of which, while fixing the regular passenger rates chargeable on the several railroads in this State, contained a provision allowing a railroad company to charge a passenger ten cents when the fare would be less than that amount. It also contained the following provisions: "In addition to these rates, passengers unprovided with tickets, when opportunity has been afforded them by the railroads to procure the same, may be required by the railroads to pay to the conductor twenty-five cents (25 cents) excess of the fare, *Page 266 upon receiving from the conductor a drawback ticket for the twenty-five cents, which shall be cashed on presentation at any ticket office of the company within twenty days after date." The plaintiff, in reply, offered in evidence a letter from the railroad commissioners, bearing date 23d October, 1900, in reply to a letter from the counsel for plaintiff, of the 18th of October, 1900, in which the railroad commissioners express "the opinion that no more than three cents per mile can be collected from any passenger, whether he presents a ticket or the money in payment of this fare." But they add these words: "We have not issued any orders in the matter." This letter was objected to, but the objection was overruled and the letter was received in evidence; and this ruling constitutes the basis of the fifth exception. Under the charge of the Circuit Judge, the jury found a verdict for the sum of $400, and from the judgment entered on the verdict, defendant appeals upon the several exceptions set out in the record, which, together with the charge of the Circuit Judge, will be reported. We do not propose to consider the exceptions seriatim, but will pass upon the questions which, as we understand it, are presented by the several exceptions. These questions may be stated as follows: 1st. Whether the Circuit Judge erred in practically instructing the jury that the regular fare for passage from Newberry to Helena was, not ten cents, but three cents, which question is presented by exceptions one, two and four. 2d. Whether the Circuit Judge erred in instructing the jury as to what would justify the jury in allowing punitive damages, which question is presented by the third exception. 3d. Whether the Circuit Judge erred in receiving in evidence the letter from the railroad commissioners to plaintiff's counsel hereinbefore referred to. As to the first question, we would remark, first, that the pleadings, especially when viewed in the light of plaintiff's own testimony, show that there was no controversy as to what the regular lawful fare for passage between the two stations, Newberry and Helena, was. On the contrary, *Page 267 it was practically admitted by the plaintiff that such fare was ten cents, and the real controversy between the parties was as to whether the conductor had the right to demand from the plaintiff the excess charge of twenty-five cents, because of the fact that plaintiff had failed to procure a ticket. The allegations in the complaint are that the plaintiff "did offer and tender to the said defendant the fare in money," and that the said defendant "not only refused and declined to accept the lawful fare so offered and tendered by the plaintiff, but demanded of plaintiff an unlawful and excessive fare, before it would transport him to his destination," and also "did eject plaintiff from the train, after having declined and refused, as aforesaid, to accept the lawful fare tendered by plaintiff, because he did not pay the very excessive and unlawful fare demanded by plaintiff." It is very manifest from the plaintiff's testimony that the amount which he offered to pay as the lawful fare was ten cents, and that he made no complaint as to the charge of the amount — his complaint being against the excess charge of twenty-five cents, because of the fact that he had bought no ticket. The Circuit Judge instructed the jury that the defendant had a right, under the law as he laid it down to the jury, to demand this excess charge of twenty-five cents, provided the jury should be satisfied from the testimony, that the conditions upon which such charge was allowed existed, to wit: that the defendant had furnished the plaintiff an opportunity to procure a ticket and he had neglected to avail himself of such opportunity, and if upon this occasion the plaintiff boarded the defendant's train, having had an opportunity to procure a ticket and failed to do so, and when his fare and the excess required of passengers without tickets was demanded, refused to pay the same, the conductor had a right, "under the regulations of the company, if you are satisfied from the testimony that such regulations existed, and that such were the circumstances as I have stated * * * to put the plaintiff off." To this portion of the charge there was no exception, and, therefore, no question can now be *Page 268 made as to whether it was correct or not, as it must be assumed, in the absence of any such exception, to be correct — as, at least, the law of this case. In a subsequent portion of his charge, however, the Circuit Judge instructed the jury that the lawful fare was three cents a mile (in which we think there was error), and if the plaintiff failed to pay the lawful fare and the excess, under a regulation of the company, then the conductor had a right to eject him from the train; but if he did not, then the conductor had no right to eject him, and if he did the company would be liable. The error of the Circuit Judge, no doubt, resulted from an oversight, in failing to notice that the very same act of 1884, 18 Stat., 759, which he had instructed the jury was not repealed by the act of 1900, contained, not only a provision authorizing the demand of an excess charge of twenty-five cents from a passenger who neglected to procure a ticket, but also provision authorizing a railroad company to "charge for short distances, where the charges per mile would be less than twenty-five cents, the sum of twenty-five cents;" and had also overlooked the fact that circular No. 42, bearing date 2d April, 1896, issued by the railroad commissioners, who are authorized by sec. 1657 of the Rev. Stat. of 1893 to establish just and reasonable rates for the transportation of passengers and freights, also contained a provision authorizing an extra charge of ten cents, when the regular fare would be less than that amount. We think, therefore, that the lawful fare in this case was ten cents and not three cents, as the jury were erroneously instructed. This was a very material error; for under the charge the jury were practically instructed to find a verdict for the plaintiff, as there was no pretense that only three cents was demanded by the conductor, in addition to the excess charge of twenty-five cents; but the undisputed testimony was that ten cents and not three cents was demanded, in addition to the excess charge of twenty-five cents. But if, as we have seen, the conductor had a right to demand ten cents in addition to the excess charge of twenty-five cents on account of the neglect of the *Page 269 plaintiff to procure a ticket, then the conductor would have a right to eject the plaintiff upon his refusal to pay the amount demanded, as it is admitted he did do. For the undisputed testimony was that the ticket office at Newberry was open for the sale of tickets for thirty minutes before the train boarded by plaintiff left; and the plaintiff, in his testimony, when asked why he failed to buy a ticket, replied: "It was just carelessness, I suppose." If it should be said that there was a conflict of testimony between the plaintiff and the conductor, as to whether a refunding ticket was offered to plaintiff, and the jury may have believed the version of the plaintiff rather than that of the conductor, and that this was a condition precedent to the right of the company to demand the excess charge, the answer is of a two-fold character: 1st. We do not see how such a refunding ticket or check could have been offered to plaintiff until after he had paid the amount demanded; and when he promptly and positively refused to pay the amount demanded, it would have been idle ceremony to offer a rebate check. 2d. But what is more to the point is, that when plaintiff's counsel asked the Circuit Judge to charge the jury: "that if the conductor did not offer a refunding ticket under this regulation, that he had no right to expel him," the Circuit Judge declined to do so, saying that: "I prefer to leave it just as I have charged it — leave all the facts to you;" and to this there was no exception taken. The first, second and fourth exceptions are sustained. The third exception imputes error in the charge as to what would authorize the jury to find punitive or exemplary damages. The Circuit Judge, after instructing the jury in terms which are objected to, says that if they thought the plaintiff was entitled to recover, "he should have such damages as would compensate him for the injury received, and if the act was done wilfully, wantonly, recklessly or maliciously, he would be entitled, in addition to compensatory damages, to such sum by way of examplary or punitive damages, as you may fix, as a punishment to *Page 270 the railroad for its wilful, wanton, reckless and malicious act." He then proceeded to use the following language, which is excepted to: "any malice does not necessarily import ill will or prejudice, or anything of that kind. Theintentional doing of any unlawful act would be construedmalicious." The special error complained of being in the words which we have italicized. This, we think, states the rule in stronger terms than are justified either by principal or authority. One may, intentionally, do an act which proves to be unlawful without the slightest design to do a wrong to any one. For example, one may intentionally cut trees growing on land which proves upon investigation to be the land of another, although he honestly believed at the time that the trees were on his own land, and in such a case no one would say that the act was malicious, although the person who cuts the trees did an unlawful act intentionally. So here, if the conductor demanded an amount which proved to be an unlawful charge, under an honest belief that he had a right to do so, surely his act could with no propriety be construed to be malicious. The rule is more correctly stated in State v. Doig, 2 Rich., 182, by Judge Wardlaw, as follows: "In law, malice is a term of art importing wickedness and excluding a just cause or excuse. It is implied from an unlawful act wilfully done until the contrary be proved" (italics ours). This statement of the rule was recognized and followed in State v. Alexander, 14 Rich., at page 253, where Mr. Justice Inglis, in delivering the opinion of the Court, after stating the rule as above, adds these words: "Clearly importing that such act may be wilful without being actually malicious." This case was also recognized and followed in State v. Toney, 15 S.C. 412-13, where the late Chief Justice Simpson, in delivering the opinion of the Court, quotes with approval the following passage from the opinion of Mr. Justice Inglis, in Alexander's case: "An act may be unlawful and so involve legal responsibility without being either wilful or malicious, or it may be both unlawful and wilful without being malicious." See, also, to the same *Page 271 effect, Avinger v. Railroad Company, 29 S.C. 265. See, also, 12 Encycl. of Law (2d edit.), 24-5. It is clear, therefore, that the Circuit Judge erred in laying down the rule as to what would justify the jury in allowing punitive or examplary damages, in saying that: "The intentional doing of an unlawful act would be construed malicious." The third exception must be sustained. The fifth exception must be sustained. The letter therein referred to contained nothing but the expression of anopinion, and that, too, after the commencement of this action, for the letter bears date 23d October, 1900, and the action was commenced 9th June, 1900. It surely needs no authority to show that this evidence was altogether incompetent. It does not purport to show that the railroad commissioners had ever taken any action on the subject referred to. In fact, the language found in the letter — "we have not issued any orders in the matter," shows the contrary. The judgment of this Court is, that the judgment of the Circuit Court be reversed and the case be remanded to that Court for a new trial.