100 S.W. 202 | Tex. App. | 1907
Appellee instituted this suit to recover of appellant damages for his ejection from a passenger train at Silsbee, Texas. A jury trial resulted in a verdict for appellee for $253.60, of which amount $100 was remitted by appellee and judgment was rendered for $153.60.
Appellee testified that he was, on January 26, 1905, a traveling salesman for the Memphis Coffin Company and was in Beaumont, Texas, and was instructed by his employer to go from that point to San Augustine, Texas. To that end he asked the ticket agent of appellant for a ticket to that place, as well as a credential slip, and gave him his credential number, which was in a credential book he had purchased from another road. The credential books, it seems, entitle the holders to a rebate on the regular fare. The agent put appellee's credential number as well as the number of the ticket, which was 851, on the credential envelope and handed it to appellee, who put it in his overcoat pocket and went in the train, and after he got there discovered that the ticket which should have been in the credential envelope was not there. He immediately went to the ticket agent and told him that he had not given him a ticket. The agent insisted that he had and told appellee that he had lost it. The conductor was standing near by and the agent told him, "This *427 gentleman here has lost his ticket, but he has paid me his fare." Appellee did not know whether the open or shut part of the credential envelope was up or down when the agent handed it to him and when he put it in his overcoat pocket. Appellant did not buy another ticket and did not find the one he had bought and when the conductor demanded a ticket appellee presented the credential envelope to the conductor who insisted on his paying his fare or delivering a ticket. The conductor went through the train to see if anyone had the ticket, but did not find it. Afterwards the conductor showed appellee a telegram from the railway company which stated, "Have the man pay fare, and send his identification slip and your receipt to Kennan at Galveston for refund," and told appellee if he would pay fare he would send the papers as directed for a refunding of the amount paid. This appellee refused to do. This was at Silsbee and the conductor then took appellee by the arm and led him off the train. Appellee then got back, paid his fare, and went on to his point of destination. He had sufficient money to pay the fare.
The agent swore that he put ticket 851 in the credential envelope and handed it to appellee, and that about five minutes afterward he returned and stated that he had lost it. That a search was made for the ticket in the waiting room and on the platform. It was not found and appellee stated he intended riding on his credential slip, and the agent told him that the company was not responsible for the loss of the ticket and the conductor would require a ticket of him. The agent said: "I told him to buy another ticket and I would take the matter up with the general passenger agent and have his money refunded." About a week afterward some person presented the ticket to the agent for refund, and the application was sent to W. S. Keenan, the general passenger agent at Galveston. The money was not refunded to the person who made application for it.
Appellee admitted that he knew that if he did not have a ticket that he would "have contention with the conductor." He knew that he would have to present a ticket in order to ride on the train. He stated that the conductor was polite to him and treated him considerately. He used no force except to take appellee by the arm and request him to leave the train.
The rules of appellant required conductors to eject a person from the trains, who refused to produce a proper ticket, or other transportation, or pay fare. Appellee would do neither and he was ejected from the train by the conductor.
The application for refund was presented by one C. L. Herrington, on February 7, 1905, and he stated in his application that he was the original purchaser of ticket 851, that after buying the ticket he concluded to stop off at Silsbee and paid his fare to that place and retained the ticket. He stated that he lived in Floresville, Texas, and that he bought the ticket on January 26, 1905. The money for the ticket was not paid to the applicant, or to anyone else.
The court charged the jury that if appellant's agent failed to deliver to appellee a ticket that he had purchased, and the conductor was informed by the ticket agent that appellee had paid for a ticket, and appellee was ejected from the train by the conductor, the jury should find *428 in favor of appellee for the amount paid for the ticket; and if they further found that appellee suffered mental distress, embarrassment or humiliation by reason of his ejectment, damages might be recovered.
The case of Railway v. Mackie,
In the case of Russell v. Missouri, K. T. Ry., 12 Texas Civ. App. 627[
Another case in point is that of Railway v. Scott (Texas Civ. App.), 79 S.W. Rep., 642, in which the plaintiff had bought tickets for himself and wife and gave them to the baggage agent of the railway company, in order that he might check their baggage, and the agent lost the ticket of the wife. The plaintiff refused to buy another ticket, although he had sufficient money for that purpose, and got on the train with his wife and she was ejected from the train, plaintiff going with her. The court held that the plaintiff could not recover damages for the ejection *429 of his wife from the train. The case is distinguished by the court from the Mackie case.
The rule announced in these cases is a wise and salutary one, because no man ought to be allowed to speculate in damages by placing himself in a position where he knows that the reasonable rules of the railroad company will cause the action for which he seeks damages. Appellee in this case knew that he did not have a ticket, no matter how he had been deprived of it, knew that it was the duty of the conductor to eject him if he did not get another ticket, and yet he refused to get a ticket and by his own acts caused his ejection from the car. It is not claimed that he was treated with any indignity by the conductor, or that more force was used than was necessary. He is in no position to recover damages for his ejection from the car.
We have proceeded upon the theory that the agent did not give the ticket to appellee, and there is some testimony upon which a jury might base such a finding, and only in that event should appellee recover even the amount of the fare that he was required to pay by the conductor. If he lost his ticket he could not recover even that sum. (Standish v. Narragansett Steamship Co.,
The verdict of the jury was for $3.60, the amount of the fare, and $250 damages, and this court has therein a basis upon which to render a judgment.
The judgment is reversed and judgment here rendered in favor of appellee for $3.60 and the costs of the County Court, appellant to recover the costs of the appeal.
Reversed and rendered.
Overruled. *430