48 Vt. 230 | Vt. | 1876
The opinion of the court was delivered by
Question has been made about the admission of some of the evidence, because not covered by the notice of defence. But this is an action of trespass on the special case, and not vi et armis, and in this form of action anything is admissible in evidence, without plea or notice, that would show that the defendants were not guilty of anything actionable in respect to the matters charged in the declaration, although if the action was in the other form, it might have been necessary to plead the same matters specially. Such matters, if material at all, would show that
As the case states that certain facts appeared on the trial and others were found by special verdict, it hangs here upon the correctness of the judgment rendered .upon all these facts. If on these.facts the plaintiff was wrongfully in the defendants’ cars at the time he was expelled, the judgment was right, otherwise not. The right to eject for non-payment of fare, is given by statute, if statute authority can, in addition to common-law rights in such cases, on any ground, be necessary. The real question is, whether there was in fact such non-payment. When the plaintiff bought the ticket at Worcester with coupons attached, entitling the holder to ride over that part of the defendants’ road he was riding on when ejected, he did not make any agreement with them or their agents that they would carry him in person over it as carriers agree to carry particular packages over their routes; but he bought what was symbolic evidence of a right that whoever'; should have it might ride, and what any other person could use as well as he. The title to it, and right to a passage upon it, , would pass by mere delivery, and whoever should have it, could pay the fare of a passenger with it by delivering it in payment; but the mere fact of having had it, without having it to deliver in payment on reasonable request, would not entitle any one to the passage, any more than having a sufficient amount of money to pay the fare with, without paying it, would. When he entered on his passage over the defendants’ road, he had the coupon and tickets which would pay his fare throughout his intended journey over their line, and if he had delivered the coupon to the conductor in payment of his fare for the whole of that journey, he would have had the right to ride the whole distance without doing or paying anything more. But according to the facts, the conductor did not take the coupon as an equivalent, for the full passage, but only for the passage so far as he was to go as conductor, and gave the plaintiff the white check as evidence in lieu of the coupon, more symbolic, but equally effective, of the right to a pas
This result makes it unnecessary to say anything about the proforma ruling as to exemplary damages. It may, however, be proper to remark, that if the ruling was as it is stated in the exceptions to have been, that the plaintiff was entitled to such damages, it was probably erroneous, for it is not understood that a plaintiff in any case has any legal right to them. Earl and wife v. Tupper, 45 Vt. 275. If, however, it was only ruled that the case was one in which such damages might be given if the evidence and finding of the jury would warrant, there probably was no error.
Judgment affirmed.