Memphis & Charleston Railroad v. Chastine

Chalmebs, J., delivered the opinion of the court. Could we pass upon the testimony contained in the bill of exceptions, we should say that the verdict was manifestly wrong, and the damages grossly excessive. But no formal exception was taken in the court below to the action of the court in overruling the motion for new trial; and it was held in Scott v. State, 31 Miss. 473, that under such circumstances this court could not revise such action, although the overruling of the motion was followed by a bill of exceptions embodying all the testimony. The statute, Hutch. Code, 885, art. 7, § 1, is substantially the same as § 648 of Code of 1871, and we [508] shall not depart from the construction adopted,- though rigid. We may look at the testimony, however, in order, to test the correctness of exceptions taken to the giving and refusing of instructions, and the admission of evidence. Jamison v. Moon, 48 Miss. 598. The third instruction given for the plaintiff below was errone-. ous. It would have been correct if the passenger had in fact paid for his ticket; but payment in counterfeit money was no payment at all. That the ticket had been so paid for, though not knowingly, is perfectly manifest, if not admitted. The instruction was calculated to mislead the jury into believing that this circumstance did not change the rights of the parties. The railroad company was under no obligation to transport a man who, however^innoeently, had defrauded them in the purchase of his ticket, and would have had the right to eject him from the train had refused to rectify the wrong. The testimony with regard to^the temporary detention of the hundred dollar bill was improperly admitted. There was no count in the declaration under tvhich it was admissible. The only counts were, first, for a failure to transport to Memphis ; ■second, for a forcible bringing back to Corinth. The accidental carrying of the hundred dollar billbeyond Corinth, and its consequent detention, if a wrong ác all, was wholly independent of those complained of, and should have been made the subject of another count. “ In trespass for taking a horse, nothing can be given hi evidence which is not expressed in the declaration ; and if money be paid over (i.e. to the party taking) in order to regain possession, such payment should be alleged as special damage.” 1 Cliitty PI. 442. “ Therefore, in trespass quare clausum fregit, the plaintiff would not, under the general allegation (i.e. of alia enormia), be permitted to give evidence of the defendant’s taking away a hprse,” while committing the trespass. 1 Chi tty PL 443. vThe principle is that a recovery cannot be had for an act which amounts of itself to an independent trespass, though connected with the one sued for, unless it is counted on in the declaration. To allow it would operate as a surprise upon the defendant. The original demand for and taking of fhe $100 by the first conductor was, perhaps, a part of the history of the wrongs com [509] plained of by the declaration, and so inseparably connected with it as to be admissible as part of the res gestee. The carrying of it beyond Corinth by the second conductor was not, because all the wrongs complained of by the declaration ended with the arrival at Corinth. Judgment reversed and cause remanded.