Serwe v. Northern Pac. R.

Mitchell, J. The cause of action alleged in the complaint is that the plaintiff having purchased a ticket over defendant’s road from Butte, Mont., to St. Paul, and having taken passage for his destination on one of defendant’s regular passenger trains, and having on demand delivered his ticket to the conductor, the latter refused to ac [80] cept it in payment of his fare, and required and compelled him, against his will, to leave the train at a station 10 miles out from Butte. The ticket, which was in evidence, showed on its face that it was sold at reduced rates, and was not transferable; that is, could only be used by the original purchaser. Defendant’s contention is that the conductor had a right to refuse to accept the ticket, and to eject the plaintiff from the train, because he was not the original purchaser, but had bought it from a “scalper.” But the assumed facts were not proved. The evidence was not sufficient to support, certainly not to require, a finding that plaintiff was not the original purchaser of the ticket. We think it shows that plaintiff, being sick, gave the money to a friend named Murphy to buy a ticket for him; that Murphy bought the ticket for plaintiff from defendant’s ticket agent, who issued it without requiring the purchaser’s signature accepting its conditions; that Murphy delivered the ticket to plaintiff, who then signed it. But the court submitted the question to the jury whether the ticket was “genuine,” — that is, whether plaintiff was the original purchaser, — instructing them that if Murphy purchased the ticket for plaintiff, and not for himself, then the plaintiff was the original purchaser, and the ticket was good in his hands for his passage. This was certainly as favorable to the defendant as the evidence would warrant. It does not appear that there was any rule of the company requiring the party desiring to ride on such a ticket to purchase it in person, or to sign the acceptance of its conditions at the time of its issue, or, if so, that plaintiff had notice of any such rules. The evidence, therefore, justified, if it did not require, a finding that plaintiff had the right to ride on the ticket, and consequently that the act of the conductor in compelling him to leave the train was unlawful. No physical force was used, and there was no evidence that the conductor was aetuatéd by malice. His act was simply a mistake or blunder, he having obtained the impression that the plaintiff had bought the ticket from a scalper, because his name and that of the witness to his signature were written with different inks. The plaintiff was therefore entitled to only compensatory, as distinguished from punitive, damages, as the court properly instructed the jury. The next question is, what elements of damage are proper to be taken [81] into consideration in such a ease ? As bearing upon this subject, counsel for defendant has discussed at some length the question whether this is an action ex contractu or an action ex delicto. Inasmuch as the conductor did nothing but what he would have had a right to do had plaintiff had no right to ride on the ticket, it is evident that plaintiff could not have maintained the action at all without pleading and proving his contract with the defendant, and its breach either by malfeasance or nonfeasance. In other words, an action could not have been maintained for a tort simply without reference to the contract between the parties. In that sense it is an action arising on a contract. But it is not an action on the contract, properly so called. The gist or gravamen of it is a tortious act, which constituted a breach of the contract. It is what is sometimes called “an action for tort founded on contract” or “an action ex quasi contractu.” In considering the measure of damages and the elements of damage proper to be considered, the courts in this country have almost universally treated such actions as sounding in tort, and have held that the passenger who was wrongfully ejected from the train could recover all damages sustained by him, as the direct and natural consequence of the wrongful act, such as the indignity of being ejected and injury to the health through exposure to the weather. This is the rule recognized and adopted by this court in Carsten v. Northern Pac. R. R. Co., 44 Minn. 454, (47 N. W. Rep. 49,) and Hoffman v. Same, 45 Minn. 53, (47 N. W. Rep. 312.) The leading ease in England on the subject is the Hobbs Case, (Hobbs v. London & S. W. Ry. Co.) L. R. 10 Q. B. 111, which, however, was disapproved in McMahon v. Field, 7 Q. B. Div. 591. While the authority of that case has been generally acknowledged, at least nominally, in this country, yet, as Mr. Sedgwick in his work on Damages (section 868) remarks, the practical effect of it has been virtually neutralized in most jurisdictions by holding, as already stated, that actions like the present sound in tort. But it seems to us that very often a great deal of time and learning has been unnecessarily expended in discussing the exact nature of such an action. The important question, after all, is whether the injury was the direct and.proximate, or only the remote, consequence of the wrongful expulsion. [82] The only other question is whether the damages were excessive. The jury awarded plaintiff $775. This was reduced by plaintiff to $550, in accordance with a condition attached to the order of the court denying a new trial. The evidence tends to show that plaintiff was quite ill, and under a physician’s care, and was going to his father’s, in Wisconsin, to recuperate his health; that he was put off the train in the night, in cold weather, in November, at a small station in the mountains, without hotels or lodging houses; that he had to find his way back to Butte in the nighttime on a freight train, and then walk a mile to reach shelter; that the exposure and anxiety considerably aggravated and prolonged his sickness. While the verdict still seems rather large, yet, under all the circumstances, we do not feel warranted in disturbing it. Judgment affirmed. (Opinion published 50 N. W. Rep. 1021.)