Chicago, Rock Island & Pacific Railway Co. v. McDermott

Kirby, J., (after stating the facts). It is undisputed that the station agent of the defendant did not demand nor receive more for the round-trip ticket from Little Eock to Hot Springs than the law allows to be collected for such distance and also that inadvertently and by mistake the station agent gave appellee only a round-trip ticket to Benton, a much shorter distance, instead of to Hot Springs, and charged the regular fare to the latter station. Neither is there any dispute that said company refused to take said ticket for appellee’s passage from Little Rock to Hot Springs and notified him upon its presentation that it would only be good to Benton and that he would have to pay the regular fare from there on. Nor that appellee then took his ticket back and paid the regular fare to Hot Springs and thereafter purchased a return ticket at the usual rate. This court has already decided that an honest mistake as to the distance between its stations will not excuse the railroad company for a charge of more than the statutory amount for the actual distance, correctly holding that the company is bound to know the distance between its stations. Railway Company v. Smith, 60 Ark. 221. In Railway Company v. Clark, 58 Ark. 490, a penalty suit, the court said: ‘ ‘ The corporation, of course, must be held to know the distances over its line between different points; and whenever an excessive amount is received it is prima facie liable. The presumption of intention which follows the mere act of taking or receiving may be overcome by proof to the contrary.” It then suggested a reformation of the instruction refused, which it held should have been given, saying: “It would have been in better form to make the latter clause read, ‘An honest mistake by a conductor in making change without the intention of taking an amount greater than was lawful, will not make the defendant liable,’ if the conductor intends to receive the excess the company is liable whether the passenger calls his attention to it or not. ’ ’ In St. Louis, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42, the court said: “If the company or its agent demands and receives for the fare ‘ an amount that is in excess of what is lawful,’ knowing that it is receiving that amount, then the company is liable.” In this case, the station agent Intended to and actually did receive no more than the amount of the legal fare for the ticket that was demanded and the auditor, upon presentation of the ticket for passage to Hot Springs, reading only to Benton, declined to receive same for more than passage to Benton, the station designated in the ticket, and demanded no more fare for the trip to Hot Springs than the law allowed, after appellee asked that his ticket be returned to him and refused to permit it to be taken up for passage to Benton. In neither case was more money received by the railroad company’s agents than the fare allowed by law to be collected and it is undisputed that there was no intention to charge, demand or receive more than said legal rate. An unintentional mistake was made by the railroad company’s agent in handing the appellee a round-trip ticket to Benton instead of to Hot Springs, for which he paid. The case falls within the doctrine of the Clark case, supra, and the mistake being honest and without any intention to charge more than the legal rate the statute does not apply and the appellant is not liable for a penalty thereunder, according to the facts in the case. It is liable, of course, for the damage resulting to appellee for its mistake and failure to furnish him the right ticket, • which would include the amount paid out on account thereof. The judgment is reversed and the cause dismissed.