55 Cal. 570 | Cal. | 1880
The complaint alleges that while plaintiff was a passenger upon defendant’s cars, the defendant unlawfully, maliciously, and wantonly assaulted, beat, bruised, insulted, and maltreated plaintiff, and with force of arms ejected him from said cars. The answer is a denial, and, as a further defense, that after the train had started upon a regular trip to San Francisco, plaintiff informed the conductor in charge of the train that he intended to and would be transported from San José to San Francisco; that the conductor demanded of plaintiff that he exhibit a ticket, or pay the regular and uniform price for fare; that plaintiff refused to exhibit a ticket or to pay the regular fare, and thereupon, and after a reasonable time had expired, after said demand and refusal, the plaintiff was, by the servants of defendant, removed from the cars, without force, or violence, or injury, or insult.
As appears from the bill of exceptions, the plaintiff entered the cars as a passenger at San Jose, in a train bound for San Francisco, but stopping at intermediate points, amongst others at Eedwood City. That the plaintiff might have purchased a ticket at San José, but did not do so on account of arriving at the depot just as the train was starting. That when about four miles from the City of San José the conductor came to where
The Court charged the jury as follows:
“Unless the jury believe from the evidence, that Avhen the conductor received the $2 from the plaintiff he accepted and .intended to accept it as full fare, the fact that the conductor did not return or offer to return said $2, nor any part thereof, to plaintiff, before putting him out of the car, is immaterial. In that A'ieAV of the case, the conductor had a right to put the plaintiff out Avithout returning the money.”
And the Court further charged the jury as follows, to vrit:
*573 “ If at the time the conductor received the $2 the minds of the parties met upon one common proposition, and it was the intention to pay full fare, and the intention of the conductor to accept said $2 as full fare, then it was the duty of the conductor to return or offer to return said $2 to the plaintiff, before putting him off for not paying the extra twenty cents; but unless the minds of the parties so met, the conductor might put the plaintiff off the car without returning or offering to return to him the said $2, or any part thereof.”
The charge was erroneous. The conductor had no right to eject the plaintiff from the cars without returning the money which ho had paid. Admitting that the regulation which forbade the conductor’s accepting fare from a passenger after the train had been stopped on account of his refusal to pay fare, was a reasonable rule, this only makes it apparent that the money should have been returned before the train was stopped. There could be no stronger evidence that the sum paid was received as full fare than the fact that the conductor retained it. The passenger was justified in relying upon that fact until the money was repaid. The conductor certainly had no authority under any reasonable rule to eject the passenger and heap the money. The stopping of the train and the actual amotion of plaintiff were parts of a single act by which the servants of the defendant asserted a right to do that which they were not authorized to do while retaining plaintiff’s money. If they could turn him out and then return the money he had ¡laid, they could turn him out and not return the money at all. Indeed, it was argued by counsel for respondent that the servants of respondent possessed such power, and that the only redress to which plaintiff could resort was an action for money had and received. The whole matter was made to turn in the court below upon the hidden purpose of the conductor. Though the amount paid was paid by the plaintiff as and for his fare, and although the conductor received and pocketed the amount paid, still, if he did not ■intend to accept it as full fare, he had the right (as the jury were instructed) to confiscate the sum paid to the public use— or for his own benefit, or to that of his employers—and exclude the man who paid it from the cars. The question was not whether the plaintiff and defendant entered into a special agree
If the conductor had demanded and received the two dollars as and for the full fare, or had agreed to transport the plaintiff for that sum, it is clear the latter could not have been ejected for non-payment of his fare. Yet the jury were told that “ if the minds of the parties met upon one common proposition” to the effect that the two dollars were paid and received by the conductor as the full fare, the latter could not eject the plaintiff without first returning the money; thus intimating that he could turn him out if he first returned that which had been received as full fare. This charge certainly tended to confuse the jurymen.
Judgment reversed, and cause remanded for a new trial.
Boss, J., and McKee, J., concurred.