Stevens, J.,
delivered the opinion of the court.
Appellant, as plaintiff in the court below, sued appellee for the alleged wrongful ejection of appellant from one of the regular passenger trains operated by appellee between Mobile and New Orleajis, through the state of Mississippi. Appellant, a resident of Crystal Springs, had occasion to go to George county to consummate the sale of some real estate. After selling his property and receiving, as a part of the purchase price, several one hundred dollar bills, he boarded the train of appellee at Pascagoula, Miss., and went to Gulf-port, where he proposed to stay until the arrival of the regular fast train of appellee, due at Gulfport about two hours afterwards. While in Gulfport, appellant claims to have spent all the small change he had in his pocket, and he, in company with a traveling man, went to the station of appellee twenty-five minutes before train time for the purpose of purchasing transportation from Gulfport to New Orleans. The evidence shows, however, that the ticket agent did not open the window of his office and offer to sell tickets until the train blew for the station of Gulfport; that as the train came in sight the ticket agent threw open the window, and thereupon appellant tendered a one hundred dollar gold certificate to the agent and requested a ticket to [661]*661New Orleans, La., the regular fare being two dollars, and one cent.. The agent, without making any effort to change the bill, stated that he could not make the change, and said to appellant. “You will have’to pay your fare on the train.” Thereupon the companion of appellant purchased his ticket and both boarded the train for New Orleans. When the conductor came around, appellant handed the one hundred dollar bill to him, stating to the conductor:
“I want to go to New Orleans. If you have not got the change, if we wait until we get to New Orleans we can get change at the ticket window and you give my change back. The ticket agent did not show up until a few minutes before the train got there, and he did •not have any change, and he told me to pay my fare on the train.'”
To this the conductor responded:
“You will have to pay four cents a mile.”
And appellant thereupon said:
“I will not pay four cents * because that is not the fare. I am willing to pay my regular fare. I tried to buy a ticket.”
The conductor, it seems, then stated:
“I do not know whether you tried to buy a ticket or not.”
And this statement thereupon brought on sharp words between the two, ending in a refusal on the part of appellant to pay four cents a mile and in the conductor, with the assistance of the negro porter, forcibly ejecting appellant from the train at the little station of Lorig Beach, at which this fast train did. not usually stop. The testimony further shows that appellant had one heavy grip and a small grip and raincoat as his baggage; that, after being put off the train at Long-Beach, he was required to walk half a mile with his baggage to catch a street car back to Gulfport; that at that time appellant was not well and, according to [662]*662his statement, suffered from the overexertion that evening; that he was compelled to miss the morning trains on the day following and to stay' in Gulfport until he could get his one hundred dollar bill changed, and thereafter he went to New Orleans on an afternoon train, that put him in the city twenty-four hours late. Appellant offered to corroborate his statement to the conductor as to why he failed to buy. a ticket, but it appears that the only difference between the conductor and appellant was the demand for the car rate instead of the regular ticket rate between Gulfport and New Orleans. After the introduction of testimony offered by the plaintiff, the defendant moved the court to exclude all the evidence and to grant the defendant a peremptory instruction. This motion was sustained, the’ peremptory instruction was granted defendant, and a jury verdict rendered in favor of the defendant, from which appellant prosecutes this appeal; assigning as error the exclusion of the testimony of plaintiff and the granting of the peremptory instruction.
The question is.presented whether the railroad company was justified in demanding four cents a mile and, upon refusal to pay the car fate, in ejecting appellant from the train. Counsel for appellee are compelled to justify the action of the trial court by the proposition, as stated in their language:
“A person making a tender of money to pay fare cannot expect the agent or servant of the company to be prepared to make change in any amount, no matter how large, and there must be a reasonable approximation of the amount tendered to the fare” — citing several authorities.
An investigation of these cases discloses that they are all street railway cases.
In the case of Barrett v. Market-St. Ry. Co., 81 Cal. 296, 22 Pac. 859, 6 L. R. A. 336, 15 Am. St. Rep. 61, the opinion says:
[663]*663“A distinction ought to he made, we think, between passengers traveling on steam railroads and those traveling on street railroads. Passengers of the former class are expected to prepare themselves with tickets procured at the regular office established at the station where the trains regularly stop. Horse cars and cable cars stop at all points along the road at the beck of those desiring to ride, and the conductors do not, as a general thing, expect to receive tickets for the passage.”
In this case the court held that a. tender of a five dollar gold piece in payment of a five cent fare was not unreasonable, even in the case of a street railway. In many of the street railway cases cited it is shown that the companies had established and promulgated a rule to the effect that conductors would not be required to make change in excess of a certain amount — in some cases two dollars. None of these cases, however, are directly in point. In the instant case the question is whether a one hundred dollar gold certificate was an unreasonable amount to tender the ticket agent in a city the size of Gulfport, Miss., in payment for interstate transportation from Gulfport to New Orleans. The trial court held, as a matter of law, that appellant should have paid the train rate of four cents per mile, and thereby necessarily held that the one hundred dollar bill was an unreasonable amount to tender the agent at Gulfport. Each case of this kind must, of course, stand upon its own peculiar facts and circumstances. In volume 4, R. O. L. par. 558, it is stated m the text: '
“It is well established that a passenger need not tender the exact fare, but that, if he tenders a reasonable sum, the carrier must accept it and furnish change. What is a reasonable and what is an unreasonable sum depends largely upon whether the carrier is a steam railroad or a street railway and. upon the case or [664]*664difficulty in handling the passengers in each' particular locality. ’ ’
To the same effect is the note on page 642, vol. 10, Ann. Cas., and in the notes on page 1106, vol. 4, R. C. L., several cases are cited. The case of L. & N. R. R. Co. v. Cottengim (Ky.), 104 S. W. 280, 13 L. R A. (N.
Free access — add to your briefcase to read the full text and ask questions with AI
Stevens, J.,
delivered the opinion of the court.
Appellant, as plaintiff in the court below, sued appellee for the alleged wrongful ejection of appellant from one of the regular passenger trains operated by appellee between Mobile and New Orleajis, through the state of Mississippi. Appellant, a resident of Crystal Springs, had occasion to go to George county to consummate the sale of some real estate. After selling his property and receiving, as a part of the purchase price, several one hundred dollar bills, he boarded the train of appellee at Pascagoula, Miss., and went to Gulf-port, where he proposed to stay until the arrival of the regular fast train of appellee, due at Gulfport about two hours afterwards. While in Gulfport, appellant claims to have spent all the small change he had in his pocket, and he, in company with a traveling man, went to the station of appellee twenty-five minutes before train time for the purpose of purchasing transportation from Gulfport to New Orleans. The evidence shows, however, that the ticket agent did not open the window of his office and offer to sell tickets until the train blew for the station of Gulfport; that as the train came in sight the ticket agent threw open the window, and thereupon appellant tendered a one hundred dollar gold certificate to the agent and requested a ticket to [661]*661New Orleans, La., the regular fare being two dollars, and one cent.. The agent, without making any effort to change the bill, stated that he could not make the change, and said to appellant. “You will have’to pay your fare on the train.” Thereupon the companion of appellant purchased his ticket and both boarded the train for New Orleans. When the conductor came around, appellant handed the one hundred dollar bill to him, stating to the conductor:
“I want to go to New Orleans. If you have not got the change, if we wait until we get to New Orleans we can get change at the ticket window and you give my change back. The ticket agent did not show up until a few minutes before the train got there, and he did •not have any change, and he told me to pay my fare on the train.'”
To this the conductor responded:
“You will have to pay four cents a mile.”
And appellant thereupon said:
“I will not pay four cents * because that is not the fare. I am willing to pay my regular fare. I tried to buy a ticket.”
The conductor, it seems, then stated:
“I do not know whether you tried to buy a ticket or not.”
And this statement thereupon brought on sharp words between the two, ending in a refusal on the part of appellant to pay four cents a mile and in the conductor, with the assistance of the negro porter, forcibly ejecting appellant from the train at the little station of Lorig Beach, at which this fast train did. not usually stop. The testimony further shows that appellant had one heavy grip and a small grip and raincoat as his baggage; that, after being put off the train at Long-Beach, he was required to walk half a mile with his baggage to catch a street car back to Gulfport; that at that time appellant was not well and, according to [662]*662his statement, suffered from the overexertion that evening; that he was compelled to miss the morning trains on the day following and to stay' in Gulfport until he could get his one hundred dollar bill changed, and thereafter he went to New Orleans on an afternoon train, that put him in the city twenty-four hours late. Appellant offered to corroborate his statement to the conductor as to why he failed to buy. a ticket, but it appears that the only difference between the conductor and appellant was the demand for the car rate instead of the regular ticket rate between Gulfport and New Orleans. After the introduction of testimony offered by the plaintiff, the defendant moved the court to exclude all the evidence and to grant the defendant a peremptory instruction. This motion was sustained, the’ peremptory instruction was granted defendant, and a jury verdict rendered in favor of the defendant, from which appellant prosecutes this appeal; assigning as error the exclusion of the testimony of plaintiff and the granting of the peremptory instruction.
The question is.presented whether the railroad company was justified in demanding four cents a mile and, upon refusal to pay the car fate, in ejecting appellant from the train. Counsel for appellee are compelled to justify the action of the trial court by the proposition, as stated in their language:
“A person making a tender of money to pay fare cannot expect the agent or servant of the company to be prepared to make change in any amount, no matter how large, and there must be a reasonable approximation of the amount tendered to the fare” — citing several authorities.
An investigation of these cases discloses that they are all street railway cases.
In the case of Barrett v. Market-St. Ry. Co., 81 Cal. 296, 22 Pac. 859, 6 L. R. A. 336, 15 Am. St. Rep. 61, the opinion says:
[663]*663“A distinction ought to he made, we think, between passengers traveling on steam railroads and those traveling on street railroads. Passengers of the former class are expected to prepare themselves with tickets procured at the regular office established at the station where the trains regularly stop. Horse cars and cable cars stop at all points along the road at the beck of those desiring to ride, and the conductors do not, as a general thing, expect to receive tickets for the passage.”
In this case the court held that a. tender of a five dollar gold piece in payment of a five cent fare was not unreasonable, even in the case of a street railway. In many of the street railway cases cited it is shown that the companies had established and promulgated a rule to the effect that conductors would not be required to make change in excess of a certain amount — in some cases two dollars. None of these cases, however, are directly in point. In the instant case the question is whether a one hundred dollar gold certificate was an unreasonable amount to tender the ticket agent in a city the size of Gulfport, Miss., in payment for interstate transportation from Gulfport to New Orleans. The trial court held, as a matter of law, that appellant should have paid the train rate of four cents per mile, and thereby necessarily held that the one hundred dollar bill was an unreasonable amount to tender the agent at Gulfport. Each case of this kind must, of course, stand upon its own peculiar facts and circumstances. In volume 4, R. O. L. par. 558, it is stated m the text: '
“It is well established that a passenger need not tender the exact fare, but that, if he tenders a reasonable sum, the carrier must accept it and furnish change. What is a reasonable and what is an unreasonable sum depends largely upon whether the carrier is a steam railroad or a street railway and. upon the case or [664]*664difficulty in handling the passengers in each' particular locality. ’ ’
To the same effect is the note on page 642, vol. 10, Ann. Cas., and in the notes on page 1106, vol. 4, R. C. L., several cases are cited. The case of L. & N. R. R. Co. v. Cottengim (Ky.), 104 S. W. 280, 13 L. R A. (N. S.) 624, involved a steam railroad train, but in that case the passenger was drunk and demanded that the conductor give him his change before he (the passenger) released from his hand the money tendered in payment of his transportation. With a tender to the train conductor, however, we are not in this case concerned.
A careful consideration of this record convinces u's that the trial court was in error in holding, as a matter of law, that the one hundred dollar bill was an unreasonable sum to tender in a cosmopolitan city like Gulf-port, especially in view of the fact that the agent was in a union depot handling funds of two large railroads. It will be noted that the railroad company introduced no evidence whatever, and it is not even shown, except by inference, that the Louisville & Nashville Eailroad Company had ever established a rule demanding four cents per mile as a train rate instead of three cents per mile, and there is no evidence whatever in the record as to the amount of business handled by the Louisville & Nashville Eailroad Company at Gulfport or the facilities for making change at the union station there. It affirmatively appears that the agent was not at his post of duty and made no effort to change the bill. The railroad companies are, of course, in the business of providing transportation for hire, and owe, we think, a duty to the traveling public to provide reasonable facilities for making change at an important station like the one here involved. They are servants and not masters. The lack of adjudicated cases on this point indicates, in. the language of Patterson, J., in the Barrett Case, supra:
[665]*665“That a question like this will, as is usual, settle itself by a spirit of mutual accommodation between'' carrier and passenger.”
No point can be made upon the sufficiency of the tender by appellant to. the conductor. Appellant in fact tendered the conductor one hundred dollars for transportation, simply requesting that the conductor return appellant the necessary change when they reached the larger city of New Orleans. There is no question, therefore, that, so far as this tender on the train was concerned, the size of the bill is immaterial.
We do not undertake to lay down any rule ■ defining what is .and what is not reasonable tender in all cases. This is a mixed question of fact and law to be determined in each case, taking into account always the size of the city, town, or village, where • the passage is demanded, the volume of business done, and the facilities for making change. We do say, however, that in this particular case the court could not, as a matter of law, declare the one hundred dollar bill an unreasonable amount in a city like Gulfport. There is no question of the good faith of appellant, and surely we have fallen on uncertain times if a' white gentleman with a pocket full of one hundred dollar bills cannot buy first-class passage on a train operated by a common carrier doing both an interstate and intrastate business without paying a premium so to do, especially when he has transacted all business on hand and is destined for the attractive and cosmopolitan city of New Orleans. Such conduct on the part of the railway company comes near violating the constitutional guaranty accorded every citizen of the “pursuit, of happiness.”
Reversed and remanded.