Atchison, Topeka & Santa Fe Railroad v. Dickerson

The opinion of the court was delivered by Dennison, J. : The first error complained of by the plaintiff in error is that the court erred in giving the jury the instructions marked A, B, C, and D. Para [353] graph 1324 of the General Statutes of 1889 provides that no railroad company shall charge or receive a rate in excess of 3 cents per mile for transportation of. a passenger. Paragraph 1325 id., which was in force from February 25, 1886, until its repeal on April 5, 1893, provided that, when a passenger failed or neglected to procure a ticket prior to taking passage on a train, the company might lawfully charge 10 cents excess for a journey of 15 miles or less, etc. Said paragraph also contains a proviso that said act shall not apply to any passenger taking passage on any railroad-train if the company shall fail or neglect to keep its ticket office open for the sale of tickets for at least 30 minutes immediately prior to the starting of such train. A careful examination of the instruction marked “A” convinces us that it clearly lays down the law applicable to keeping open a ticket office, and, as the jury found generally for the plaintiff below, we must consider it as a settled fact that the ticket office at Hillsboro was not open for the sale of tickets at least 30 minutes, or any part thereof, immediately prior to the departure of the train on which Dickerson took passage on August 6, 1890. It therefore follows that the provisions of paragraph 1325 supra did not apply to him, and that the company or its employees had no legal right to demand, charge or receive more than the regular fare of 3 cents per mile, or 31 cents, from him. Did they have the right to expel him from the train for refusing to pay the 10 cents excess? It must be conceded that he was not a trespasser upon the train. He had paid the full legal fare. He was therefore entitled to ride to Marion, and, being entitled to ride to Marion, the company or its employees did not have the right to expei him from the train for refusing to pay the excess. [354] This question will be more fully discussed under the objection to instructions marked “ G ” and “ D.” The counsel for plaintiff in error object to that portion of instructions ‘^’’and^D” which permits Dickerson-to recover damages as a recompense for the suffering of outraged and humiliated feelings natural to a man who is compelled to submit to such indignity in such a public place. The contention is that this case comes within the rule that, when a conductor, in enforcing a valid regulation, in good faith and without unnecessary force, ejects a passenger from the train, the corpbration is not liable for indignities and insults suffered. The conductor testified that the rule of the company is that if a passenger gets on his train and offers to pay cash fare he must pay the excess, whether he has a chance to buy a ticket or not, and, if he does not pay it, the conductor must remit it himself, or put the passenger off. We are not called upon to decide as to the validity of that part of the rule which requires the conductor to remit the excess himself. We do decide that a rule of a railroad company which requires a passenger either to pay an amount in. excess of the highest amount that can be legally charged for his passage or be expelled from the train is not a valid rule. It is also contended that Dickerson could have escaped the humiliation and indignity by paying the excess, and then his measure of damages would be 10 cents ; that he had no right to aggravate the cfamages by not complying with the demand of the conductor. We are not partial to a rule that would require a per,son to submit to an extortion for the purpose of relieving the extortioner from the natural consequences of his acts ; but we need not consider that in this case. The jury specially find that Dickerson did not have [355] money enough to pay the 10 cents excess. It was therefore not in his power to avoid being expelled from the train by paying the illegal excess fare demanded. The instructions, “A,” “B,” “0,” and “D,” given were the law that governs this case, and no error was committed in giving them. Plaintiff in error complains that the court erred in refusing to give the instructions asked for by it. ' We have carefully examined all the instructions given and those refused, and find that the material instructions asked for which should have been given are included in the instructions of the judge which were given to the jury. The next error complained of is in the refusal of the court to submit certain special questions to the jury. In the case of Jordan v. Johnson, 1 Kan. App. 656, this court has held that ‘ ‘ either party has a right to prepare and ask the court to submit special questions in writing to the jury, and if they are material and relate to some of the facts which the jury must determine in arriving at their verdict, the court must submit them to the jury and insist upon clear and unevasive answers thereto.” We have carefully examined the special questions refused, and find that all of them, except 23, 24, 25, 26, and 27, are either immaterial, and the jury need .not pass upon them in determining the amount of their verdict, or the facts which must have been determined by them were uncontradicted and were necessarily included in the general verdict. As to the special question No. 23, the jury by answering No. 22-, must have answered No. 23, which they do by stating that one of the elements of damages included in their verdict is for “physical and men356 cal suffering and humiliation.” No. 24 asks the jury to separate the amount they allow for mental pain and suffering from the. amount they allow for physical pain and suffering. The court instructed the jury that they could not allow the plaintiff anything for mental pain and suffering, except such as grows immediately out of or results directly from the physical pain he endured. It could therefore serve no good purpose to require the jury to separate the damages allowed for physical and mental pain and suffering when they cannot allow anything for mental pain and suffering except such as is so closely connected with the physical pain and suffering. In this case, the plaintiff below must recover, if he recover at all, for the labor and.inconvenience to which he was put, for the physical and mental pain and • suffering endured by lj.im, and for the humiliation to which he was compelled to submit. If requested, the court- should have submitted questions as to how much is allowed for each one of these elements of damage, but we can see no good reason for requiring ■any one of these three elements of damage to be divided up into minor subdivisions. As to Nos. 25, 26, and 27, the court had instructed the jury, that they could not allow the plaintiff anything for punitive or exemplary damage, and their answer to No. 22 shows that they followed this instruction. We think the court committed no error in refusing to submit the special questions above mentioned. The plaintiff in error also complains that the attorney for the plaintiff below was guilty of misconduct in his argument to the jury. We have carefully examined the arguments made, and are of the opinion [357] that both sides took considerable latitude in the argument to the jury. Both sides tried to prejudice the jury against the opposite party. • The plaintiff below called attention to the claim that Dickerson had tried to put up a job on the company, and that, if it was not true, they should decide against it because it had slandered him. The attorney for the company frequently called the jury’s attention to the fact that when Dickerson was put off the 'train he was parading around wearing a hundred-dollar diamond pin. There is nothing in the record which authorizes either statement. The plaintiff in error, before objecting to the statements of counsel for the defendant in error, should have repudiated the improper statements of its own counsel. (The State v. Mortimer, 20 Kan. 93.) A verdict of $296.34 for the damages, for labor and inconvenience, physical and mental pain and suffering, and humiliation, upon such a state of facts as is shown in this case, is not excessive. Perceiving no material error prejudicial to the rights of the plaintiff in error, the judgment of the district court is affirmed. All the Judges concurring.