Summary
In Cox v. Los Angeles Terminal Ry., 109 Cal. 100, [41 P. 794], a verdict for five hundred dollars was held excessive on the ground that there was no appreciable damage and the evidence showed that "the conductor was civil and gentle in his intercourse with plaintiff."
Summary of this case from Clare v. Northwestern Pacific Railroad CompanyOpinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Los Angeles County. W. H. Clark, Judge.
COUNSEL:
The court erred in denying the motion for a nonsuit Under the facts no exemplary damages could have been given. (Civ. Code, secs. 3282, 3294, 3333, 3360; Gorman v. Southern P. Co ., 97 Cal. 6; 33 Am. St. Rep. 157; Beach on Railways, 890, 891; Louisville etc. R. R. Co. v. Guinan, 11 Lea, 98; 47 Am. Rep. 279; Pullman Palace Car Co. v. Reed , 75 Ill. 125; 20 Am. Rep. 232; Trigg v. St. Louis etc. Ry. Co ., 74 Mo. 147; 41 Am. Rep. 305; Illinois Cent. Ry. Co. v. Sutton , 53 Ill. 399; Schall v. Bowman , 62 Ill. 321; Morse v. Duncan , 14 F. 396; Indianapolis etc. R. R. Co. v. Birney , 71 Ill. 391; Wilson v. Young , 31 Wis. 582; Wyman v. Leavitt , 71 Me. 227; 36 Am. Rep. 305; Tarbell v. Central P. R. R. Co ., 34 Cal. 616; Pleasants v. North Beach etc. R. R. Co ., 34 Cal. 586; Turner v. North Beach etc. R. R. Co ., 34 Cal. 594; McLean v. Chicago etc. Ry. Co ., 50 Minn. 485.)
T. E. Gibbon, for Appellant.
William E. Cox, and Will D. Gould, for Respondent.
The defendant, having ejected the plaintiff, is responsible for any circumstances of aggravation which attend the wrong. (Sanford v. Eighth Ave. R. R. Co ., 23 N.Y. 343; 80 Am. Dec. 286; Louisville etc. Ry. Co. v. Wolfe , 128 Ind. 347; 25 Am. St. Rep. 436.) The law implies malice, where the party purposely commits a trespass. (Wright v. Clark , 50 Vt. 136.) The conductor had no badge and no authority to act. (Civ. Code, sec. 488.) An offer to pay fare before the train is stopped cannot be refused by the conductor, no matter who made the tender. (Ham v. Delaware etc. Canal Co ., 142 Pa. St. 617.) An actual tender of fare is not necessary. (Tarbell v. Central P. R. R. Co ., 34 Cal. 616; Thompson's Carriers of Passengers, 28, note 8.) The action of the conductor being malicious and oppressive, exemplary damages were proper. (Civ. Code, sec. 3294.) Compensation was allowable for humiliation and mental suffering of plaintiff. (Civ. Code, sec. 3282; McKinley v. Chicago etc. Ry. Co ., 44 Iowa 321; 24 Am. Rep. 748; Quigley v. Central P. R. R. Co ., 11 Nev. 370, 371; 21 Am. Rep. 757; Hamilton v. Third Ave. R. R. Co ., 53 N.Y. 28; Smith v. Pittsburg etc. Ry. Co ., 23 Ohio St. 10; Lake Erie etc. Ry. Co. v. Fix , 88 Ind. 381; 45 Am. Rep. 464; Fairchild v. California Stage Co ., 13 Cal. 601; Shatto v. Crocker , 87 Cal. 630; Cooley on Torts, 62-67.) The jury may inflict punishment for disregard of a public duty. (Milwaukee etc. Ry. Co. v. Arms , 91 U.S. 489; Beach on Railways, sec. 891; Gorman v. Southern P. Co ., 97 Cal. 1; 33 Am. St. Rep. 157; New Orleans etc. R. R. Co. v. Hurst , 36 Miss. 666-69; 74 Am. Dec. 785; Jeffersonville R. R. Co. v. Rogers , 38 Ind. 125; 10 Am. Rep. 103.) The damages awarded were not excessive. (Indianapolis etc. R. R. Co. v. Milligan , 50 Ind. 392; Louisville etc. Ry. Co. v. Wolfe, supra ; Jones v. Steamship Cortes , 17 Cal. 487, 500; Lake Erie etc. Ry. Co. v. Fix , 88 Ind. 381; 45 Am. Rep. 464; Graham v. Pacific R. R. Co ., 66 Mo. 538; Du Laurans v. First Division of St. Paul etc. R. R. Co ., 15 Minn. 49; 2 Am. Rep. 102; Burnham v. Grand Trunk Ry. Co ., 63 Me. 298; 18 Am. Rep. 220; Denver etc. Co. v. Reed, 4 Col. App. 500; Heirn v. M'Caughan , 32 Miss. 17; 66 Am. Dec. 588; Maroney v. Old Colony & Newport Ry. Co ., 106 Mass. 153; 8 Am. Rep. 305.)
JUDGES: Harrison, J. Van Fleet, J., and Garoutte, J., concurred.
OPINION
HARRISON, Judge
This action was brought in behalf of the plaintiff, an infant of the age of ten years, to recover damages for having been expelled from a train of the defendant, upon which she had taken passage as a passenger. At the close of the testimony on behalf of the plaintiff the defendant asked for a nonsuit, which was denied, and after other testimony had been introduced, the cause was submitted to the jury, who rendered a verdict in favor of the plaintiff for five hundred dollars.
A motion for a new trial was made and denied, and the defendant has appealed.
1. The motion for a nonsuit should have been granted. The plaintiff, in company with two younger sisters and another girl about her own age, were attending school at Tropico, in the county of Los Angeles, and on the morning in question had taken passage upon the cars of the defendant, at Bond station, for the purpose of being carried to Tropico station, about a mile and a quarter distant. The rate of fare between Bond station and Tropico was ten cents. When the conductor asked for their fare the plaintiff tendered him twenty cents as the fare for herself and her two sisters. The conductor told her that the fare was ten cents for each of them, and that unless they paid that amount of fare [41 P. 795] they would have to get off. He also told the plaintiff that the twenty cents was enough to pay for two of them, but that the others would have to get off. The plaintiff then told the conductor that she did not like to go on without the others, and that, if they got off, she would get off too. Thereupon the conductor handed the money back to plaintiff, and when the next station was reached he stopped the train, and the plaintiff, with her sisters and the other girl, got off. There was no evidence of the use of any violence or oppression or force toward the plaintiff on the part of the defendant or its employees; on the contrary, the entire evidence shows that the conductor was civil and gentle in his intercourse with the plaintiff.
The plaintiff's right of action is limited to the conductor's treatment of herself alone, and as, instead of accepting the offer of the conductor to ride for the fare tendered by her, she chose to take back the money and get off the car with her sisters, rather than go on without them, her leaving the car must be regarded as a voluntary act on her part. The fact that on a previous occasion another conductor had allowed the three girls to ride for ten cents did not render the act of the conductor in demanding the regular fare on this day improper, or place the defendant in the wrong; nor is the plaintiff entitled to recover from the defendant because another passenger said that she would pay the fare for the other girls. No tender of fare was made by her, and the plaintiff, instead of availing herself of the offer, testifies that she did not hear it made.
2. Section 488 of the Civil Code is as follows:
" Every conductor, baggage-master, engineer, brakeman, or other employee of any railroad corporation, employed on a passenger train or at stations for passengers, must wear upon his hat or cap, or in some conspicuous place on the breast of his coat, a badge indicating his office or station, and the initial letters of the name of the corporation by which he is employed. No collector or conductor, without such badge, is authorized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or property."
There was evidence tending to show that the conductor on this morning did not wear any badge upon his cap, and the court gave to the jury the following instruction:
" Every conductor employed on a passenger train must wear upon his hat or cap, or in some conspicuous place upon the breast of his coat, a badge indicating his office or station, and the initial letters of the name of the corporation by which he is employed; and no conductor without such badge is authorized to demand or receive from any passenger any fare or ticket, or exercise any of the powers of his office; and no conductor without such badge has any authority to meddle or interfere with any passenger or property"; and further instructed the jury: "If you find that the conductor in this instance did not have upon his cap or breast such a badge, then he had no right to meddle or interfere with the plaintiff, and, if he did interfere and compelled her to leave the train, such act would be unlawful, and your verdict should be for the plaintiff."
The object of this section is not to limit the power of the corporation in the conduct of its business, but it is for the protection of passengers, by requiring a designation of the person whom they are to recognize as entitled to receive their fare, or to represent the corporation in other respects. The restraint which the section places upon the authority of a conductor is to be limited to the matters specified therein, and is not to be extended to cases not included within the language of the section. Without a badge indicating his office, the conductor is not "authorized" to demand or receive any fare or ticket from the passenger, or to exercise any of the powers of his office or station. The passenger in such case would be justified in refusing to pay him the fare, or to surrender to him his ticket, or to comply with his orders; but it does not follow that, if the passenger recognizes him as the conductor, and pays his fare, or complies with his directions, he can recover the fare back from the corporation, upon the ground that the conductor was not "authorized" to receive it, or maintain an action against the corporation for complying with the directions of the conductor on the ground that he was not authorized to give them. The passenger does not become entitled to free transportation upon the railroad by reason of the omission of the conductor to put on this badge, and if, after recognizing him as the conductor, and treating with him as such, when he is without the badge, the passenger would avail himself of the protection intended by this section, he should place his refusal to pay the fare, or to comply with his directions, upon this ground, in order that the conductor might have an opportunity to obviate the objection. The plaintiff herein made no objection to paying the fare to the conductor at the time he demanded it, but recognized him as sufficiently authorized to receive it, irrespective of the absence or presence of a badge; nor did she at the time she got off the car make any objection to so doing upon the ground that the conductor was without his badge. As she was not entitled to ride upon the road without paying her fare, she was deprived of no right by being excluded from the cars for failure to make such payment; and, if there was any reason why she should not have been excluded, she ought then to have stated the reason. After having complied with the order of the conductor without making this objection, she cannot afterward be allowed to raise an objection, which, if then stated, might have been obviated.
The latter clause of the first of the above instructions goes beyond the language [41 P. 796] of the code. The language of the section is that "no other officer or employee without such badge has any authority to meddle or interfere with any passenger or property"; whereas, the jury were told that "no conductor without such badge has any authority to meddle or interfere with any passenger or property." The use of the term "other officer or employee" expressly excludes the conductor from the limitations of authority contained in this clause, and confines such limitation to the acts specified in the preceding clause of the sentence.
3. We are of the opinion that the verdict was excessive. Without reviewing the evidence, it is sufficient to say that there was no evidence before the jury which justified them in giving punitory or exemplary damages, or to take the case out of the rule given in section 3333 of the Civil Code. (See, also, Tarbell v. Cent. P. R. R. Co., 34 Cal. 616; Gorman v. Southern Pacific Co ., 97 Cal. 6; 33 Am. St. Rep. 157.)
The judgment and order are reversed.