Georgia Railroad v. Olds , 77 Ga. 673 ( 1886 )

Hall, Justice.

This was an action to recover damages from the defendant, the Georgia Railroad and Banking Company, for unlawfully and wrongfully expelling plaintiff from its cars, on which he was riding as a passenger, and for abusing and maltreating him through its agents and servants in effecting his expulsion. The jury, on the trial, found a verdict awarding him one thousand dollars damages. The defendant made a motion to set the verdict aside, and sought to obtain a new trial upon the several grounds taken in its said motion, which was refused by the court; it excepted to the judgment rendered thereon and brought the case here by writ of error.

1. None of the special grounds, all of which are sec forth in the amended motion, can, with due regard to the- statute and the various decisions of this court, be considered on this bill of exceptions; they consist entirely of general allegations of error in lengthy extracts taken from the charge of the court, each embracing several principles or several different views or modifications of the same principle ; and while the decisions complained of are plainly specified, yet there is no specification of the errors alleged to exist therein. The terms of the statute as to this re quirement are mandatory. “ Such bill of exceptions shall specify plainly the decision complained of, and the alleged error, and shall be signed by the party, his 'attorney or solicitor.” Code, §4251. The failure to specify the error alleged would be no more of a compliance with its terms than Avould like failure to specify the decision complained of, or for the party or his counsel to sign the same; each of these things is essential to the validity of the bill of exceptions and the writ of error founded thereon, so far as relates to the particular decision of which complaint is made, and the reason for the observance of such imperative direction is obvious. It was never contemplated by the framers of this wise and liberal act that the party complaining should have it in his power to withhold from his opponent the real grounds of objection to any decision and spring it on him on the final hearing, when he would have no opportunity of making preparation to meet and answer it. He should know what he has to answer, in order that he may not be condemned to loss without a hearing, or at least without being notified of what he is required to respond to. From the character of the eminent counsel engaged in this case, we ought, perhaps, to attribute this failure rather to inability in any one to perceive and point out errors in these particular charges than to inattention or forgetfulness of the rule, and in the view which we shall be compelled to take of the case, we feel less reluctance in making this ruling than we should on ordinary occasions, where a rigid enforcement of it might deprive parties of clear and unquestioned rights and make them suffer from errors of which they failed to take advantage in the only manner pointed out by the law.

2. From our previously expressed views of the law applicable to such wrongs as those now undergoing investigation, fortified.as these views have been by subsequent reflection and further and fuller investigation, we are satisfied that this plaintiff made such a case as not only authorized but demanded a recovery of some amount of damages, and we think that under his testimony, the jury, if they believed him, and this they had a right to do in preference to the defendant’s witnesses, did not, by the amount of their finding, evince bias in his favor or prejudice against the defendant, or that they either misapprehended or disregarded the explicit and careful instructions given them by the court; in short, that the finding was not excessive, if they saw proper to adopt, as they unquestionably could without impropriety, the plaintiff’s theory.

The facts necessary to the determination of these several questions are, that the plaintiff applied to defendant, agent at Stone Mountain, for a ticket to carry him to Lithonia and return; that such a ticket was paid for and, as he supposed, handed him, and on this he boarded the cars, and when he had gone a short distance from the station where he got on the train, the conductor came around to take up tickets, and upon presenting his, it was discovered that he was riding on a ticket from Atlanta to Stone Mountain, which would have entitled the holder to return from Stone Mountain 1 o Atlanta; the conductor thereupon demanded of him his fare and informed him, upon his refusal to pay, that he must leave the train. The plaintiff then requested to be put off at that point, which he say's was not exceeding half a mile from the mountain, but according to the conductor, it was two and half a miles from the mountain. He was not put off, but carried on to Redan, a half-way station between Stone Mountain and Lithonia, where there was a turn-out; there was some altercation here between the conductor and him, and he was here ejected from the cars and compelled to pursue his journey on foot; he was an old man, and quite lame from a wound in the foot which he received in the late war; the day was hot and oppressive, and to reach his destination he was compelled to walk in great pain the distance of five miles; he had to purchase a return ticket from Lithonia to Stone Mountain. So far, there is no dispute as to the facts. The plaintiff showed that the ticket he held had been punched by the conductor before it was returned to him. On his return next day to Stone Mountain, he presented this ticket to the agent there and informed him of the mistake that had been made, when the agent promptly admitted it and returned the money paid for it. There was conflict among the witnesses about punching the ticket by a conductor and between the agent and plaintiff, although he redeemed it, and about its being the same ticket sold by him; the plaintiff’s account of the matter was corroborated by other witnesses. This was a very complicated ticket, not easily understood by persons unfamiliar with its use. By some of the railroad men, it was called a “duplex” ticket, by others a ticket between stations, and by the plaintiff and his counsel a “patent ticket.” The point of departure and of destination was indicated by punching certain stations marked on its face, as well as the direction in which it was used. The plaintiff, before leaving the train, according to his account, and when he left it, was grossly insulted and shockingly villified by the conductor, roundly cursed and accused of being an imposter and, in the current slang of the day, aa dead beat” trying to steal a ride, and compelled to alight under circumstances calculated to give the passengers and others who witnessed the transaction a very bad impression of him as a man, and to wound and mortify him deeply. All this contumely and abuse were denied by the conductor and his assistants.

It is undeniable that the plaintiff, under his contract, had a perfect right to be on the cars and to ride the distance between the points the company engaged to carry him; he was entitled to proper evidence of the contract he made with them; it was no fault of his that he did not receive it, but of the agent issuing the ticket, and the company had no right to eject him from the cars because of the want of this evidence; so far as respects these matters, the agent and the conductor was each the alter ego of the company — in fact, the company itself. The plaintiff was wronged by the expulsion, and was entitled to his action and to recover. It did not concern him that the conductor was carrying out the reasonable regulations of the company, and that his action was such as they were in reason and justice bound to approve in removing him in a decorous and proper manner from the cars; his rights were certainly violated, and they failed in the performance of their duty to him by breaking their contract; had there been nothing more than a breach of this contract, and a violation of the duty growing out of it in consequence of the mistake of the agent in selling the ticket, while this could not have defeated the action, it would have had great influence in mitigating the damages. But when to this are added other wrongs and violations of rights and duties; when he Avas insulted and villified by their agents Avkile under their protection ; when they failed to exercise the “ extraordinary diligence ” Avhich the law requires at their hands for his safety and comfort, — surely these are circumstances entitling him to compensatory damages, as well for wounded feeling as for the inconvenience, pain and suffering for this wanton and cruel violation of his rights by the conductor and his assistants; and if the j ury believed these facts, they were authorized, in addition, to give vindictive damages to deter him from the repetition of similar offences.

The se positions are sanctioned by many cases, not only of our own but other courts. The City and Suburban Rwy. vs. Brauss, 70 Ga. 368; Atlanta & W.P.R. R. vs. Condor, October term, 1885 (75 Ga. 51); Lake Erie & Western Rwy. Co. vs. Fix, 88 Ind. R. 381, 388, 389 ; Philadelphia, Wilmington & Baltimore R. R. Co. vs. Larken, 47 Md. R. 155 (28 Am. R. 442); Hutchinson on Carriers, §§595,596,574, and the numerous cases and sections of our own code cited on the full and ample brief of counsel for the plaintiff in the action.

3. The plea of accord and satisfaction of the company, founded on the return of the money paid for the ticket sold the plaintiff, was not strenuously urged on the argument before this court, and had it been, Ave are of opinion that it Avould have proved unavailable. There is not the slightest evidence that the plaintiff either proposed or intended, by the receipt of this money, for the payment of which he got no consideration, at least not that for which he bargained, to settle the Avrongs he has received from this company through its agents. This question, as well as all others made by the facts, Avas fairly, fully and impartially submitted to the jury by the able and lucid charge of the Hon. Richard IT. Clark, in which we are unable to find any error, after the most careful consideration and close scrutiny which we have given it.

Judgment affirmed.