Foskey v. Wrightsville & Tennille Railroad , 1917 Ga. App. LEXIS 298 ( 1917 )

George, J.

(2-fter stating the foregoing facts.) 1, 2. This suit was for wrongful expulsion, and not for damage sustained by the plaintiff as a result of his being compelled to leave the train. There is nothing in the evidence to warrant the jury to find that the time, the place, or the manner of the expulsion was wrongful.' In. Harp v. Southern Railway Co., 119 Ga. 927 (47 S. E. 206, 100 Am. St. R. 212), it was said: “The fact that one actually purchased a ticket, and that this was known to the agent who sold it, or to the gatekeeper who examined it, or to employees on the train who saw it, would not relieve the passenger of the obligation to surrender it do the conductor. . . The mere fact that the plaintiff has a ticket does not, therefore, necessarily establish his right to be transported on a given train. . . When the conductor makes his demand he is entitled to have the ticket surrendered. He can not be required to hear evidence or investígate the bona Mes of the passenger’s excuse for its non-delivery, nor to wait until he arrives at the next station and, by telegraphic correspondence with the selling agent, undertake to verify the correctness of the plaintiff’s statement, or determine the character and validity of the ticket sold.” In the ease at bar it affirmatively appeared from the testimony of the plaintiff that he had misplaced his ticket and was unable to find it and surrender it to the conductor upon demand. He was given a reasonable opportunity to .produce and deliver his ticket. Unable to do so, he did not offer to pay a cash fare, either at the train rate or at the ticket rate, to the point of his destination. The ejection of the plaintiff from -she train was therefore proper. The decision in Wilson v. Southern Railway Co., 343 Ga. 189 (84 S. E. 445), is controlling upon the case at bar. The headnote in that case is as follows: “In a suit for damages against a carrier of passengers, for a wrongful expulsion by defendant’s agent of plaintiff, who was without a ticket on defendant’s cars, where the petition fails to allege that the plaintiff tendered to the defendant’s ticket-collector the proper fare at the train rate in lieu of a ticket when the same was demanded of him, such petition set forth no cause of action, and the court did not err in sustaining a proper demurrer thereto.” In that case the petition alleged that the plaintiff, before boarding the train, had purchased a ticket. He misplaced or lost it through no fault of the railroad company. Although he was able to produce fairly satisfactory proof of the purchase of the ticket by him, and offered to pay the regular ticket fare to the point of his destination, the ticket-collector caused him to be ejected from the train. In that case, as in this, the plaintiff, if he in fact purchased a ticket, had lost it. In that case he offered to pay the regular ticket rate, while in this case he did not offer to pay a cash fare. Counsel for the plaintiff attempt to distinguish that case from this case by the fact that Wilson admitted the loss of his ticket, while in this case the plaintiff, at the time of his expulsion, was still engaged in a search for his ticket. This fact certainly can not be of any relevancy. One might search for a ticket, either in good or bad faith, from the beginning to the end of his journey. Certainly his mere belief that he may yet be able to find the ticket will not entitle one to remain on the train. The railroad company, in the discharge of its duties to the public, can not stop and wait until the passenger has satisfied himself that the ticket is lost beyond recall. If the train continue to run as long as the passenger is willing to search for his ticket, he may thereby have his ride without paying his fare. His misfortune,-if he has in fact lost his ticket, can not prejudice the right of the railroad company to eject him from its train upon the failure to surrender his ticket aftér he has been given a reasonable opportunity to find and present the ticket. He may prevent the eviction by offering to pay the cash fare, but this must be done before the- train is brought to a stop.

3. The principle announced in the third headnote needs no elaboration. So far as we know, the courts of this State have not gone beyond the rule there announced, yet the writer is clear that a passenger who has been rightfully expelled, even at a station, for refusing to pay fare, can not continue his passage by paying fare from that point only, but must pay for the whole distance actually traveled. Compare Ga. Southern & Fla. R. Co. v. Asmore, 88 Ga. 529 (15 S. E. 13, 16 L. R. A. 53). The language of Chief Justice Bleckley in that opinion is pertinent: “If he [the passenger] higgles and hesitates until he becomes a proper subject for ejection, and until steps have been taken to that end, he is too late. Any rule which would allow one passenger to play fast and loose with the conductor would allow all the passengers to do so, and a train might thus be kept halting and alternating between running at ordinary speed and stopping throughout the whole of its journey, and to this embarrassment not only one train, but every train run for the carriage of passengers, would be exposed.”

4. In view of the plaintiff’s testimony, which is given almost in full in the statement preceding this opinion, a further discussion of the principle announced in'the fourth headnote is unnecessary. The conductor invited the plaintiff to leave the train.- The invitation or demand to leave the train was not made under circumstances calculated to embarrass the plaintiff. He got off the train safely and continued his journey on foot, without injury or inconvenience. He was accustomed to walk the distance from the point of his expulsion to his home, and on this occasion the walk, resulted in no injury to him. There is nothing in the evidence to indicate that the place of his ejection was an improper place. Compare Samples v. Georgia & Florida Ry. Co., 143 Ga. 805 (85 S. E. 1002). The nonsuit was proper.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.