46 Minn. 514 | Minn. | 1891
The plaintiff, without procuring a ticket, though he had full opportunity to do so, boarded a passenger train of defendant at Faribault to go to Owatonna. The ticket fare was 46, the train fare 56, cents. Soon after the train started, the fare collector came to plaintiff and asked him where he was going, and, on being told to Owatonna, said the fare was 50 cents, which plaintiff then paid him. A few minutes after, and before the train reached Walcott, the .first station from Faribault, the collector came again to plaintiff, and told him he had made an error in the amount of the fare, and insisted that he should pay the other 6 cents, and, on plaintiff refusing, told him unless he paid it he would put him off the train.
Assuming (what, in view of the defendant’s regulations posted up in its passenger stations and passenger ears, can hardly be assumed) that the collector had authority to accept for the fare any less than the 56 cents, and waive the company’s right to full train fare, the receipt by the collector, through mistake, for the full fare, of less than the fare, did not amount to such waiver. The collector had a right, on discovering the mistake, to require the plaintiff, certainly within a reasonable time, on informing him of the error, to pay the remainder of the train fare, just as any one, on discovering a mistake in payment, may, within a reasonable time, require its correction. And it was the duty of the plaintiff, on being informed of the error, to pay the remainder of the full train fare, as demanded by the collector. Nor was the collector’s retention of the money paid him by plaintiff (still assuming his authority to waive any part of the train fare) until the arrival of the train at Walcott, and while the question whether the plaintiff would pay the remaining 6 cents or leave the train was an open one, (for, notwithstanding his previous refusal, the plaintiff might, until the arrival at Walcott, where the train was to stop without regard to his matter, still pay and secure the right to go to his intended destination,) such a waiver, and especially as the collector insisted on payment of full train fare, and informed plaintiff that he must pay or leave the train. The rule laid down in Du Laurans v. First Div., etc., R. Co., 15 Minn. 29, (49,) to the effect that when a passenger tenders in good faith, on the train, the ticket fare as full fare to his place of destination, and the conductor takes and retains it, he thereby waives the right to require the passenger to still pay the difference between the ticket and train fare, is (assuming the conductor’s authority to waive it) undoubtedly correct as applied to a case where, from the circumstances attending the tender, receipt, and retention of the money, the passenger is justified in the belief that it was accepted in full for his fare to the place of his destination. Thus, if the conductor should receive and retain it, with
To determine whether he would pay the difference demanded, or persist in his refusal and leave the train, the plaintiff had until the train stopped at a place where he might be put off. So long as he had that election, the collector might retain the amount paid him to abide it. As soon as it was made, to wit, when plaintiff finally refused at Walcott, the right of the collector to retain the entire sum paid ceased, except he chose to retain it for the very purpose for which it was paid him; that is, for the 'full fare to Owatonna. He could not retain the entire sum, and also eject the plaintiff. As precedent to the right to expel him from the train, he should have returned to plaintiff what he was entitled to of the money, and until he did that he had no right to put him off. 'It is true he returned it to him immediately after the expulsion. But the wrong had then already been committed, and could not be repaired by doing what ought to have been doné before the expulsion. We have said the collector ought to have returned to him what he was entitled to of the money, (not the whole of the money,) because we hold that where 3. passenger refuses to pay the fare rightfully demanded of him to his place of intended destination, and the carrier puts him off at a proper place because of such refusal, the carrier has a right to be paid the proper fare for carrying him to that place, and to retain it out of any money the passenger may have paid on account of fare. This is contrary to what was decided (the court being divided upon, it) in the Du Laurans Case. The reasons given for the decision in that case were that the passenger does not intend to make a contract to be carried to the place, short of his intended destination, where he is put off, and that the carrying the passenger in that case to the place where he was put off was no benefit, but, on the contrary, a -detriment to him. When, under circumstances that imply a request,
The facts upon which we hold that the expulsion of the plaintiff from the train was wrongful were established at the trial, and not disputed, so that he was entitled to a verdict. The instructions of the court assigned as error, going only to the right to a verdict, were therefore, if erroneous, harmless. We see no error in the instructions touching the measure of damages.
Order affirmed.
