Wesley v. Southern Ry.

July 17, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant, in ejecting her while she was a passenger on its train of cars.

The allegations of the complaint, material to the questions involved, are as follows:

"That on the 14th day of September, 1909, the plaintiff went to Dawkins, a station on the defendant's railroad, and purchased from the defendant's agent, at that place, a passenger ticket for Shelton, another station on the defendant's said road, paying the full price therefor, which was demanded by the defendant's said station agent, and she thereby became a full first-class passenger on defendant's said road, and upon the arrival of the defendant's train for Shelton, the plaintiff boarded same.

"That when the said train had gone a short distance towards Shelton, the defendant's ticket auditor came to plaintiff, and took up her ticket, and after leaving plaintiff, for a short time returned to her and accused her of having given him a half ticket, which she had not done, and when the said train had been stopped at the next station, the defendant's said ticket auditor, and other agents and servants of the defendant, wrongfully, unlawfully, wilfully and wantonly, and forcibly ejected the plaintiff from the said train. * * *

"That the action of the defendant, its agents and servants, in ejecting her from the said car, as aforesaid, was not only a gross violation of the obligation which they had, for value received, assumed, to carry the plaintiff, but was a wilful, wanton, and malicious violation of the plaintiff's rights as a passenger, to her damage in the sum of two thousand dollars."

The defendant's answer to the complaint, was a general denial.

His Honor the presiding Judge thus summarized the plaintiff's testimony:

"The plaintiff's testimony impressed me as being truthful, and a correct statement of what took place. As already stated, she testified that she bought from S.T. Goodlett, a ticket agent of the defendant at Dawkins, a full fare ticket from Dawkins to Shelton, that she boarded the train here in question and tendered to the ticket collector, the ticket so received from the agent at Dawkins, that the ticket collector, called by her ``conductor,' either at the time or shortly after receiving the ticket, claimed that it was a half fare ticket to a point of destination at Cedar Springs, some sixty miles farther than Shelton, that he thereupon ordered her to get off at Blairs, a station short of her destination at Shelton, that she then commenced crying and begged him not to put her off at Blairs, and told him that the agent at Dawkins had sold her the ticket, and had told her that it was a full fare ticket to Shelton, but that the ticket collector, refusing to credit her story, forced her to leave the train at Blairs, without investigating so far as appears, the truth of her claims. As already stated, the ticket agent at Dawkins, Mr. S.T. Goodlet, corroborated her story, in so far as the purchase of the ticket from Dawkins to Shelton by her, on that day is concerned."

There was also testimony to the effect, that about the time the agent at Dawkins sold the plaintiff a ticket, he also sold a half fare ticket to another woman, who was accompanied by a little girl, on the representation that it was for the girl who was going to Cedar Springs, which was about five times the distance to Shelton; that the two women boarded the train, but the girl was left behind; that when the auditor came to collect the ticket, the two women were sitting near each other; that the plaintiff handed to the auditor a half fare ticket, in the usual form, dated September 14, 1909, good for passage from Dawkins to Cedar Springs; that the auditor then and there returned this ticket to the plaintiff with this endorsement: "Off at Blair, Acct. grown person on this ticket and no funds. Party got off on own account. No. 13. 9-14-1909. G.B. Forbes, G.C." That the plaintiff was ejected at Blair.

At the close of the plaintiff's testimony, the defendant made a motion for a nonsuit as to punitive damages, which was refused; and, at the close of all the testimony renewed such motion, but it was again refused.

The jury rendered a verdict in favor of the plaintiff for $500, and the defendant appealed upon exceptions, which will be reported.

The first exception was abandoned. Second and Third Exceptions: The defendant made a motion for a new trial, and one of the grounds was, that there was error in the refusal, to sustain the motion for nonsuit. His Honor the presiding Judge in the order refusing the new trial, stated the reasons why the motion for nonsuit could not be sustained, and they are satisfactory to this Court.

Fourth, Fifth and Sixth Exceptions: The allegations of the complaint, that the action of the defendant, in ejecting the plaintiff, "was not only a gross violation of the obligation which it had assumed, to carry the plaintiff, but was a wilful, wanton, and malicious violation of the plaintiff's rights as a passenger," do not confine the plaintiff, to a recovery of punitive damages, as a gross violation of duty, does not necessarily involve wilful misconduct. The words "gross negligence," do not ordinarily import recklessness or wantonness, and it is only when the context shows that they were thus intended, can they be so construed.Body v. Ry., 65 S.C. 326, 43 S.E. 817.

In the present case the context shows that the words "gross violation," and "wilful, wanton and malicious violation," were not used in the same sense; that the first had reference to negligence, and the second to intentional wrong.

The complaint, therefore, states two causes of action — one for negligence and the other for wantonness or wilfulness, — and the plaintiff was entitled to recover both actual and punitive damages.

Seventh and Eighth Exceptions: The charge set out, in the seventh exception, immediately precedes the charge in the eighth exception, and the two parts must be considered together, as they are dependent upon each other, for a proper construction.

The allegation of the complaint, is, that the plaintiff after boarding the train, delivered to the defendant's auditor, the ticket which she had purchased from the agent at Dawkins, for which she had paid full price, and which entitled her to ride as a first-class passenger to Shelton, another station on defendant's line of road.

The defendant's answer denied, that she handed a ticket of that description, to its auditor.

His Honor in effect, charged, that even if the plaintiff did not deliver to the auditor, such a ticket as is described in the complaint, but a paper supposed by her to be such ticket, and even though she may have been negligent in so supposing, nevertheless, the defendant was liable for such damages, as she may have sustained, on account of being ejected from the train. The reason assigned by the presiding Judge for this ruling was, because the defense of contributory negligence was not interposed. It is true, the defendant was not entitled to the benefit of the defense of contributory negligence, but it had the right to rely upon the issues made by the pleadings.

Under the charge it was not necessary for the plaintiff to prove, as alleged that she delivered to the auditor, the ticket described in the complaint; and, the instruction to the jury that damages were recoverable, if the ticket purchased was not presented, but a paper which she supposed was the ticket sold to her, materially changed the issue and was unquestionably prejudicial to the rights of the appellant. These exceptions are therefore sustained.

Ninth and Tenth Exceptions: What has already been said disposes of these exceptions.

MR. JUSTICE WOODS concurs in this opinion.

MR. CHIEF JUSTICE JONES. On September 14, 1909, the plaintiff, a young, ignorant negro woman who could not read or write, boarded defendant's train as a passenger from Dawkins to Shelton, a distance of ten miles, having requested and purchased of the agent at Dawkins a full fare ticket for twenty-five cents. There was no other passenger from Dawkins that day, except Mag Black, a young negro woman, who purchased a half fare ticket from Dawkins to Cedar Springs, a distance of fifty-five miles for sixty-five cents.

These two women were sitting either on a seat together, or on adjoining seats. Before reaching the next station, Strothers, which was three miles from Dawkins, the ticket collector came along and took up the tickets of these passengers about the same time. The collector testified positively that Mag Black gave him the full fare ticket to Shelton and that plaintiff gave him half fare ticket to Cedar Springs, that he informed plaintiff that she could not ride on a half ticket, that he demanded eighty-three cents additional fare and upon her statement that she did not have the money he told her to get off the train at Strothers, and that plaintiff requested to be carried to Blairs, because she had some people there to stay with. Blairs was a station five miles from Dawkins. The collector testified that plaintiff did not state to him that her destination was Shelton, that he did not inquire, but assumed that her destination was Cedar Springs from the ticket she presented, that he passed her to Blairs because she had the half fare ticket and that if he had known her station was Shelton he would have passed her to that point on her ticket.

The plaintiff testified that she purchased a full fare ticket to Shelton. This testimony was most positively corroborated by Jesse Morgan who saw her purchase and pay for a ticket to Shelton and saw it in her hand just before she boarded the train, and by S.T. Goodlet, defendant's agent at Dawkins, who declared that he sold and delivered to plaintiff, a full fare ticket to Shelton for which he received twenty-five cents, and this was after he had sold to Mag Black the half fare ticket to Cedar Springs.

Plaintiff testified that she gave to the ticket collector the same ticket that was given her by the defendant's agent at Dawkins, that when the collector told her that he could not carry her on a half fare ticket, she informed him that she could not read or write, that Mr. Goodlet gave her the ticket and told her it would take her to Shelton. The plaintiff got off the train at Blairs, because she had been ordered to do so by the ticket collector. The other passenger, Mag Black, went on to Cedar Springs and was saved from ejection by the charity of fellow passengers, who made up the additional fare claimed.

I concur in the conclusion reached by Mr. Justice Gary upon all the exceptions, except the seventh and eighth. The charge complained of in these exceptions is as follows:

"If you find from the evidence that the plaintiff purchased a full fare ticket, as alleged from Dawkins to Shelton, and, if you find that plaintiff boarded the train, as alleged, as a passenger, from Dawkins to Shelton, and delivered such ticket or a paper supposed to be such ticket, to the agent or ticket auditor or conductor or other officer demanding it on the train, and, if you find that thereafter, before the arrival of the train at Shelton, the defendant's conductor or other officer on the train required the plaintiff to leave the train, or ejected plaintiff from the train, then the plaintiff would be entitled to recover the damages actually and proximately resulting from the putting off of plaintiff so far as such actual damages might have been reasonably expected so to result.

"Now, I charge you the proposition stated as to the delivery of the ticket delivered by the plaintiff, and supposed or believed by the plaintiff to be the ticket bought by her — I charge you the proposition with reference to that, for the reason that no contributory negligence is pleaded in this case, and therefore, if you conclude that the plaintiff had paid full fare for a ticket from Dawkins to Shelton, and had received such ticket from the agent of the defendant, no negligence by the plaintiff in failing to tender the right ticket can operate to defeat her right to recover damages for a wrongful ejectment from the train, because it had not been pleaded, and it cannot be submitted to you where not pleaded."

It is contended that the charge made the defendant liable for ejection for failure to present a ticket entitling her to ride as a passenger if she presented "a paper supposed by her to be such ticket." The charge should not be considered as an abstract proposition to be generally applied, but as applicable to the concrete case as made by the facts. It will be noticed that the charge is conditional on the jury finding that plaintiff purchased and received from defendant's agent a full fare ticket to Shelton and boarded defendant's train as a passenger for Shelton. It will be further noticed that plaintiff did not tender just any kind of a paper which she supposed was a proper ticket, but that she tendered either a full fare ticket costing twenty-five cents, or a half fare ticket costing sixty-five cents. It will still further be remembered that the ticket collector treated the half fare ticket as sufficient to pass plaintiff to Blairs and that he would have treated it as sufficient to pass her to Shelton if he had only known that was her station, and there was no testimony in the case tending to show a different rule of the company. The pivotal issue arising from the testimony of defendant was whether the ticket collector knew or ought to have known that plaintiff's station was Shelton, for if plaintiff presented a half fare ticket to Cedar Springs and he had information that her destination was Shelton, an expulsion for failure to pay eighty-three cents additional would be unlawful, even if plaintiff had no right whatever under the half fare ticket, since full fare to Shelton was only twenty-five cents.

In view of the foregoing circumstances I cannot think there was any prejudicial error in the charge.

The judgment is affirmed.

MR. JUSTICE HYDRICK concurs in this opinion.