Palmer v. Railroad

3 S.C. 580, 1872 S.C. LEXIS 47

• Court: Supreme Court of South Carolina
• Decided: October 25, 1872
• Status: Published

Opinion

The opinion of the Court was delivered by

Willard, A. J.

The defendants’ first exception involves the proposition that under an objection to the array of jurors, it is competent to enquire into the title of the Commissioner, by whom the jury was selected, to the office exercised by him. The existence and authority of the office are not questioned, but the title of the incumbent is the only matter in dispute. The validity of the array does not depend on the title of the Jury Commissioner to his office. While actually exercising the powers of the office, his official acts must have full force and effect.

The remaining exceptions involve these general inquiries, namely:

1st. What is the true construction of the contract expressed or implied by the passage ticket purchased by plaintiff?

2nd. Is that contract affected by any thing in proof as to the general custom of railroad travel, or the particular rules and regulations of the defendants ?

3rd. Assuming the act of the conductor in removing the plaintiff from the train to be unlawful and moved by malice or recklessness, can the defendant be held responsible therefor in exemplary damages ?

The plaintiff purchased a ticket of defendants’ agents in New York, by the terms, entitling him to a passage over the defendants’ railroad from Charlotte to Augusta, with the privilege of stopping over at Columbia. The ticket contained separate coupons from Charlotte to Columbia, and from Columbia to Augusta. The conductor, between Charlotte and Columbia, separated from the ticket both of these coupons, retaining them, and giving to the plaintiff a conductor’s check. Plaintiff stopped over at Columbia, taking, on the next day, a train under charge of a different conductor from the one whose check he held. Plaintiff was expelled from the train by its conductor, on the ground that the conductor’s check held by him did not entitle him to a passage in that train from Columbia to Augusta, and of his failure to pay the proper fare from Columbia to Augusta he demanded of him.

The second exception brings up the following instruction asked for by defendants, namely: “That, without some notice to the contrary, conductor Wolfe was justifiable in assuming that the plaintiff intended to go to Augusta without stopping at Columbia.” The Court refused this charge, and charged the contrary.

If this instruction had any bearing in the case it would result from the proposition that the plaintiff was bound to notify the conductor at the time he removed the coupons to Augasta that he intended stopping over at Columbia. According to the true construction of the contract, the plaintiff was at liberty to form the intention of stopping over at Columbia at any time before the train left that place for Augusta. The instruction, on the contrary, assumes that that intention should have been not only formed, but expressed, at the time the conductor removed the coupons' between Charlotte and Columbia.

The conductor was bound to assume that the plaintiff intended to retain the right conferred by his contract, and in taking from him the evidence of such right, to place in his hands some token that would, under the rules and regulations of the defendants, be equivalent to the possession of the coupons removed.

The instructions asked would have tended to mislead the jury as to the nature of the rights of plaintiff under his contract, and was properly refused.

The sixth exception is directly connected with that just consid. ered. The defendant asked an instruction, “ that if the jury are satisfied that, by the usage and custom of railroads in the United States, a conductor’s check is good only upon the train upon which it is given, then it was an act of negligence on the part of the plaintiff not to make enquiry of the conductor, who gave him the check, whether it would be good for another train.” The Court refused this instruction, and charged “ that the plaintiff, in this case, was not bound to make an inquiry of the conductor, and was, therefore, not guilty of negligence; the peculiar contract, between him and the railroad company, devolved upon the conductor, and not upon the passenger, to make the inquiry. I do not think that the instruction applies to this case as made out by the evidence.”

It has already been said that it was the duty of the conductor, in taking up the coupons, to place in the hands of the passenger some token that would have the force and effect, under the rules and regulations of the company, of the coupons themselves. Primarily, the passenger had the right to hold the evidence of his contract until it had been performed on the part of the defendants. Assuming that this right was modified, by the rules and regulations of the road, to the extent of rendering it proper for the conductor to demand that the evidence of his right, as to any portion of the journey secured by the ticket, should be surrendered before such portion was completed, the ground on which the reasonablenes of any such regulation must rest, is the necessity and propriety of such a course for the protection of the company against imposition.

Having, therefore, demanded of the passenger the proper evidence of his contract for their own benefit, they were bound to put him in as good a position as if he had not parted with such evidence. The common practice is to substitute a conductor’s check for the coupons taken up. This conductor’s cheek is a mere token. It need not express the terms of the contract under which the passenger is conveyed. The passenger has the right to assume, without examination or enquiry, the due performance by the conductor of his duty in this respect.

What would be the effect, if the conductor’s check contained words limiting in effect the right of the passenger, as existing under the ticket and coupons, in the event of the attention of the passenger being called to such limitation, whether in that case it would call upon him to assert the right thus affected, or be held to have abandoned it, is not a question in this case, for it does not appear that the conductor’s check in question contained words of that character. While it is true that, if a passenger claims anything under general usage, or under the rules and regulations of a particular road, in excess of what he has a right to demand under his contract, he must take it in subordination to such usage and rules. Yet, when his contract gives him a clear right, subject to no contingency, he cannot be deprived of that right, either under a rule established by general usage, or by the particular road, in the absence of timely notice of such rule. Applying these principles to the instruction asked, and the charge given in lieu of it, it is clear that the instruction asked was defective in charging the passenger with knowledge of the import of the check, upon the ground of general usage alone, and in making it a ground of negligence on his part, not to have enquired as to the import and value of the check. It is equally clear that the view taken by the Court was correct, both as it regards the duty of the passenger and the conductor, and the inapplicability of the instruction to the case, there being no facts in proof tending to fix on the plaintiff a charge of neglecting aDy act essential to the preservation of rights under his ticket.

The seventh exception brings up an instruction asked by defendants and refused, which is as follows: “ That if the plaintiff had a separate coupon from Charlotte to Columbia, and another from Columbia to Augusta, and he intended, at the time he was called upon by the conductor for his ticket, to stop over at Columbia, it was an act of negligence in him to allow his coupon from Columbia to Augusta to be torn off.” The Court declined so to charge, and charged the contrary. The eighth exception contains an . instruction, asked and declined, as follows: “That if the plaintiff had a separate coupon from Charlotte to Augusta, then it was an act of negligence for him to stop over at Columbia without having been assured bv the conductor that the check given him would pass him on another train.” The sixth, seventh and eighth exceptions seek to charge the plaintiff with negligence. To give any meaning to the idea of negligence thus advanced, it would be necessary to suppose that at the time when the conductor called upon the plaintiff for his coupons, some duty was imposed on the plaintiff, the negligent performance of which deprived him of his right to stop over at Columbia. According to the sixth exception, this negligence consisted in not ascertaining that he had proper evidence of his right to stop over. According to the seventh exception, it consisted in his allowing the conductor to take up the Columbia and Augusta coupon. If in either of these cases any negligence occurred, it was in respect to some duty that the plaintiff owed himself, and not as to any duty in which the defendants are concerned, and therefore, it is not a matter that can be alleged by them as enuring to their advantage. The plaintiff had righjg fixed under his contract, and unless his conduct amounted to an abandonment or modification of these rights, such as the defendants would take advantage of, it is unimportant whether he was vigilant or remiss in detecting an infraction of such rights. What might have been the consequence, had it been made to appear that the plaintiff took the conductor’s check with knowledge that the conductor had committed an error, is not necessary to be considered, for there is no evidence tending to prove such a state of facts. If there was negligence in stopping over at Columbia without inquiry as to his right to resume his journey on the next day, it was not incident to any duty due to the defendants, and they cannot therefore complain of it. It is very clear that the conductor had no right to take up the coupon from Columbia to Augusta before Columbia ivas reached, unless he placed the plaintiff in as good a condition as before, by giving a check or token evidencing his right to stop over at Columbia, and to take a subsequent train; but this only leads to the conclusion that plaintiff had a right to assume that the conductor’s check given to him was sufficient for that purpose. Such being the case, he was not bound to protest against or resist the removal of the Columbia and Augusta coupon.

The instruction asked that is the subject of the ninth exception, is as follows: “ That the regulation of the defendants, requiring a passenger, with a through ticket, who gives up his coupon to a point beyond another point at which he wishes to stop, to obtain from the conductor a lay-over ticket, is a reasonable regulation.” This instruction was refused, “ unless the regulation be accompanied by a farther regulation, that the conductor shall inform the passenger.” It will not be necessary to examine the conclusions of the Circuit Court as to this instruction, for the regulation in question has no application to the present case. It was obviously intended to cover the case of a passenger desiring to stop at some point intermediate to the initial and terminal point of a single coupon. In such a case we must assume that the right to stop at such intermediate point would depend on the regulations of the road, and not upon the contract which allows stoppages only at the points to and from which coupons run. It cannot be construed as applying to a case where the passenger has the right, by the terms of his contract, to stop at a particular place; nor can it be applied either to the initial or terminal points of a coupon. Neither can the regulations of the road consolidate the coupons into one, as against the right of the passenger, under the terms of his contract, to treat them as distinct parts of his journey.

The tenth exception questions the authority of the agent at New York to sell two coupons between Charlotte and Augusta. But the fact that the defendants recognized the ticket, and allowed the plaintiff finally to perform the journey called for by it, was such a ratification of the act of the New York agent as to render immaterial evidence of the nature of the instructions' under which the agent acted. This instruction is unimportant to the case, for this reason. The charge, were it erroneous in this respect, could not have affected the verdict to the prejudice of the defendants.

The eleventh exception has no application to this case. The position of the plaintiff is, that under their contract the defendants were bound to convey him from Columbia to Augusta, after having stopped at Columbia. The entrance of the plaintiff into the train, with the portion of his ticket remaining in his hands, and a conductor’s check from Charlotte to Augusta, was a clear demand for the performance of the part of the contract the breach of which is alleged.

The twelfth exception was charged as requested by the defendants, and is not before us for review.

The thirteenth exception is already disposed of by what has gone before.

That portion of the charge brought into view by the fourteenth 'and sixteenth exceptions, so far as it is applicable to the present case, is in conformity to the views already expressed, and is free from error.

The remaining exceptions, namely, the fifteenth and seventeenth, raise the question whether the rule of exemplary damages was appropriate to be .submitted to the jury. If the defendants could, under no such circumstances, be subjected to exemplary damages for the misconduct of the conductor, or, if there -were no facts in the case to characterize the conduct of the conductor as malicious, oppressive, or reckless of the rights of the plaintiff, then the submission of the rule of exemplary damages ivas erroneous, as it would tend to mislead the jury as to their duty in the case.

The question, whether a corporation is liable to respond in exemplary damages for the misconduct of an agent, has not beeii settled in this State. It will be considered on reason and authority, so far as it affects the relations of a common carrier to his passenger, where there has been an abuse of authority over the person of the passenger, conferred by the carrier upon his agent, acting in his stead in the performance of the contract to convey with safety. The right of a common carrier to eject a person from his conveyance by personal force can have no other foundation than that which justifies the lawful occupant of a house from ejecting therefrom, in like manner, an unlicensed intruder or trespasser. It is a consequence of dominion over property. As the exercise of this right, accompanied with force, involves a restraint of the liberty of another, it is a delicate power that should be scrupulously guarded from abuse. The imposition of exemplary damages is a means peculiarly fitted to prevent abuses of this power, and when applied to cases of this character, ought to be regarded as accomplishing more than merely setting an example for the benefit of the community at large, and as covering redress of an injury to the right of personal liberty distinguishable from all that class of personal grievances properly embraced within the legal rule of compensatory damages. Where such powers are delegated, the sanction under which they are exercised should not be diminished. Nothing would be more dangerous than to allow such powers to be conferred on an irresponsible person, possibly a ruffian, leaving the persom communicating-such authority exempt from part of the legal consequences that ought to be attached to their abuse. If public policy allows exemplary damages, in order to deter persons clothed with such authority from abusing it, there is equal reasons for allowing them as a penalty for the delegation of such powers to an improper person.

It will be found, upon examination of the authorities, that while much difference of opinion has been called forth by the discussion of the general question of the liability of corporations, to exemplary damages, for the misconduct of agents, yet that no ease is in conflict with the limited basis of the question above stated. Goddard vs. Railroad, 57 Maine, 202.—In this case the general liability of a railroad company, as a common carrier, for misconduct of an agent towards a passenger under his charge, is established to the extent of allowing exemplary damages. The same rule was applied in Railroad vs. Dunn, 19 Ohio, 162.

Ward vs. Railroad, 17 N. Y., 362.—In this case the question of exemplary damages was not considered by the Court of Appeals, though it appears to have been raised by plaintiff on the trial. Railroad vs. Hinds, 55 Penn., 512. This case holds that it is the duty of the railroad company to protect the lives and persons of passengers, as against riotous conduct of other passengers, so far as the means are at hand so to do. The concurrence in the common carrier of a certain right of control over the person of his passenger, with the duty of protecting him from unlawful force from third parties, is suggestive of a relation calling for the application of the rule, qui jaeii per alium faeit per se, carried to its fullest extent, so as to transfer to the principal all the legal consequences that ought to flow from the act of the agent.

Railroad vs. Jinney, 10 Wis., 383.—This case has been regarded as an authority against the allowance of exemplary damages against a corporation for the act of its agent, without proof of direct authorization or ratification ; but such is not the effect of the case. The refusal to apply the rule of exemplary damages, in that case, was based on the fact that the conductor had no authority to remove passengers from the cars, the Court holding that such delegation of authority must be proved, and could not be inferred from knowledge of the general piractice of railroads. This case is in strict accord with the idea that where such a delegation of authority exists in the hands of an agent, liability to exemplary damages, on the part of the principal, will follow an act of gross, malicious or wanton abuse in the hands of such agent.

Turner vs. Railroad, (34 Cal., 594.)—The rule of exemplary damages was refused in this case, on the ground that it did not appear that the defendant had either authorized or ratified the act of the conductor. It does not assume the position, that a special act of authorization or ratification was essential. It is entirely consistent with the idea that a general delegation of authority would support the application of this rule. On examining the report of the case, it will be observed that it does not appear, anywhere, that the conductor had authority to remove passengers from the cars. The case cannot be hostile to a proposition, that announces as the basis of its conclusion, that there must be a delegation of poAver of control over the person of the passenger.

Hill vs. Railroad, 11 Louis., 292.—The rule of compensatory damages laid down in this case was strictly applicable to the case, there being no circumstance to justify the allowance of exemplary damages.

Amiable Nancy, 3 Wheat., 546.—Exemplary damages were refused in this case, as against the owners of a privateer, for an injury unlawfully committed by the privateer while under the control of the agent of such owners. This decision is based on the peculiar nature of the privateering service. It is enough to distinguish that case from the principle under consideration, that there the powers exercised by the agent were war powers, not derived from the owners of the vessel, but from the government under whose laws the vessel sailed. An abuse of such powers would lead to different consequences, from an abuse of powers belonging, of common right, to common carriers.

Railroad vs. Quigly, 21 How., 202.—Exemplary damages are allowed against a corporation for the malicious publication of a libel, under authority of its Board of Directors. Directors can be regarded in no other light than as agents of the corporation, and it is impossible to avoid the conclusion that this authority upholds the general proposition that a corporation may be held repsonsible in exemplary damages for the malicious act of its agents done in the course of its business.

Thus it will be found that the current of decisions supports the proposition under consideration.

It is clear that there were circumstances rendering it legally possible, that the jury might conclude that the conductor, in removing the plaintiff from the train, was influenced by an intent to injure, degrade or oppress him. Among these circumstances are the facts that the ticket and check, exhibited to the conductor, tended to show that it was a case of mistake, and not of a design to defraud the company; that the plaintiff exhibited willingness to do all in his power in order to accede to what he considered an unjust demand; for, although without money to pay the fare demanded, he offered to secure its payment by pledging his baggage; and the fact that the plaintiff was put off at an inconvenient place— the jury had a right to say whether the act was reasonable and wholly influenced by a sense of duty to his principal, or whether it was a harsh and tyrannical exercise of authority, conceived in a spirit of hostility or prejudice against the plaintiff, or in reckless and wanton disregard of rights respected by the humane spirit of our laws. Power to remove a passenger from a public conveyance should be lodged in the hands of the persons in charge of such conveyances. But it ought always to be regarded as the last resort, and its exercise ought not to be justified where all considerate and just minds revolt from it as an act of cruelty. All the powers of common carriers over their passengers are subject to the limit of reasonableness, and an act that offends the sense of public justice and propriety cannot be justified as a lawful exercise of the authority of a common carrier over the person of his passengers. The rule of exemplary damages was proper to the case. There being no error in the rulings or charge of the Circuit Court, the motion for a new trial should be denied, and the appeal dismissed.

Moses, C. J., and Wright, A. J., concurred.