118 Ark. 291 | Ark. | 1915
(after stating the facts). The complaint did not state facts sufficient to warrant a recovery of the statutory penalty and the court did not err in sustaining the demurrer. The ease is ruled by the recent decision of this court in Chicago, R. I. & P. Ry. Co. v. McDermott, 106 Ark. 170. In that case we held that where a passenger asked for a round trip ticket from Little Rock to Hot Springs and paid the proper amount for the same, but by an unintentional -mistake the railway company’s agent gave him a round trip ticket to Benton, there being no intention to charge or receive more than the legal rate, the statutory penalty could not be recovered.
The complaint sets forth that the -appellee’s agent had by mistake given ¡him a ticket “from Prescott to Emmet instead of from Prescott to Boughton,” but it does not 'allege that the -conductor intentionally demanded 'and received from the appellant more than the legal rate from Prescott to Boughton. There is nothing in the complaint to show that the carrier issued the ticket with an intention of charging ian amount in excess of the legal rate. This was necessary in an action for the statutory penalty. In a suit for damages for a violation of the contract of carriage, the carrier under such circumstances would be liable, but not for the penalty prescribed by the above mentioned statute. See Chicago, R. I. & P. Ry. Co. v. McDermott, supra, and cases there cited. See also St. Louis, I. M. & S. Ry. Co. v. Baker, 118 Ark. 69.
The judgment is affirmed.
