Opinion
(Filed 1 November, 1911.)
1. Carriers of Passengers — Mileage Book — Exchange for Tickets — Wrongful Refusal — Ejection from Train — Damages.
When the owner of a mileage book has properly requested the carrier's agent for a ticket in exchange for his mileage, to which he was entitled under the rules of the company, and has been refused by the agent, it is incumbent upon the conductor of the carrier to take the mileage on the train for his transportation; and the ejection of the passenger by the conductor because the former did not have the ticket and, after explanation, had insisted on his taking the mileage to destination, subjects the carrier to the payment of the damages sustained in consequence.
2. Carriers of Passengers — Mileage Exchanged — Wrongful Refusal — Intermediate Point — Consent — Evidence.
When the owner of the carrier's mileage book has requested under the rules of the company a ticket to his destination in exchange for his mileage, and has been refused by the agent an exchange except to an intermediate point, and then requested, with the same result, a ticket to a further point towards his destination, it is competent to show that he had not consented to the agent's giving him the ticket to the intermediate point as evidence that he had not withdrawn his request for the ticket to the point beyond.
3. Evidence — Rebuttal — Examination on Matters Already Testified — Appeal and Error.
Examination of a witness in rebuttal upon evidence he has already gone over in his original examination, while irregular, does not constitute reversible error on appeal.
4. Carriers of Passengers — Mileage Exchanged — Refusal — Ejection of Passenger — Punitive Damages.
The wrongful ejection of the plaintiff, a passenger on defendant's train, by the conductor, porter, and baggagemaster, in a very rough manner, with anger and violence, because he insisted upon the conductor's taking his mileage for his transportation, as under the circumstances he had a right to do, justifies a charge to the jury that in their discretion they might, if they saw fit, award punitive as well as compensatory damages.
(440) APPEAL from O. H. Allen, J., at June Term, 1911, of LEE.
A. A. F. Seawell and D. E. McIver for plaintiff.
Rose Rose for defendant.
CLARK, C. J., concurring.
The action was brought to recover damages for unlawful ejection from defendant's train. Appropriate issues were submitted to which there is no exception.
There was a verdict and judgment for plaintiff, from which defendant appealed.
The evidence of the plaintiff tends to prove that on 30 October, 1909, he presented his mileage book issued by defendant to its agent at Red Springs in due time before arrival of its train for Fayetteville and demanded a ticket for Siler City, N.C. This being refused, he demanded ticket to Sanford, N.C. which was likewise refused. The agent stated he had no time, and gave plaintiff a ticket to Fayetteville. It is necessary to change cars at Fayetteville for Sanford and Siler City.
While plaintiff was alighting from train at Fayetteville he saw Conductor McCulloch of the train from Fayetteville to Sanford, and asked him if he, plaintiff, had time to get a ticket; he was told by the conductor that he did not have time, and the train left immediately. Train was in motion by the time plaintiff could get to his seat. Conductor McCulloch demanded a ticket of plaintiff. Plaintiff tendered his mileage coupons, explaining the circumstances stated above, which the conductor refused. The conductor, aided by his porter and baggagemaster, by force, in a very rough manner and with anger and violence, ejected plaintiff from defendant's train.
There was evidence offered by defendant contradicting, qualifying, and explaining the plaintiff's evidence which it is unnecessary to set out.
The three assignments of error relating to the evidence cannot be sustained.
It was permissible to ask plaintiff whether he consented to the agent giving him a ticket to Fayetteville in order to show that plaintiff had not voluntarily withdrawn his application for a ticket to Sanford.
Allowing the plaintiff to be examined in rebuttal upon evidence already gone over in his original examination, while (441) irregular, does not constitute reversible error.
The remaining assignments of error relate to the charge and to refusal to give certain instructions, which it is unnecessary to set out here.
The propositions of law chiefly urged by the learned counsel for defendant are settled in Harvey v. R. R., 153 N.C. 568.
It is decided in that case that a mileage book is a contract for carriage, subject to certain restrictive regulations; that the owner is compelled under the terms of the contract to present it at the ticket office in reasonable time, and, when he does so, that he is entitled to receive a ticket in exchange for his mileage strip.
If the traveler fails to do this, he has no right to have the book accepted for transportation on the train. When he complies with the contract on his part and the carrier fails to give him the requisite ticket in exchange, the carrier is at fault and may not lawfully refuse to honor the mileage contract on the train, and cannot rightfully eject him. The plaintiff, according to all the evidence, complied with the contract on his part. He waived his right to a ticket to Siler City, but not to Sanford. It was defendant's duty to furnish plaintiff a ticket to Sanford in exchange for his mileage, which he had bought and paid for. The plaintiff, according to the evidence, had no time to present his book at Fayetteville, even if that was necessary, which we do not admit, as plaintiff had already presented it at Red Springs.
If the railway companies insist upon the traveler presenting his book at the ticket window, they must be prepared to honor it there. If they fail to do so, they should instruct their conductors to honor it on the train. This will prevent much friction and will doubtless save the railway companies from much litigation and expense.
(442) In the Harvey case it was admitted that there was no foundation for punitive damages, and two members of the Court thought the verdict rendered grossly excessive and that it should have been set aside for that reason. But in this case the plaintiff offers evidence which fully justified the court in instructing the jury that in their discretion they might, if they saw fit, award punitive as well as compensatory damages.
We think the charge of the court is a full presentation of the contentions of both parties and is free from error.
No error.