NORTHERN PAC. R. CO. v. PAUSON, 70 F. 585

IIAWLEY, District Judge (after staling- tbe facts). The disposition to be made of this ease depends upon the question whether {he charge of the court to the jury stales a correct legal principle applicable to the facts and circumstances of this case.

The authorities bearing upon this question are by no means uniform, some ■of the courts holding that it is the duly of the passenger, before going upon the train, to examine his ticket, and to ascertain therefrom whether or not any mistake has been made by the ticket agent; that the face of the ticket is conclusive evidence to the conductor of (lie train as to the contract between the1 passenger and the railroad company; that the conductor can look only to the ticket, and has no right to be governed by any statement or explanation of the passenger; that if the ticket is not upon its face such a ticket as entitles the passenger to ride, the conductor has the right, and it is his duty, to eject, him from the train; and that Ins only remedy for the mistake, negligence, or carelessness of the ticket agent is by an action for breach of the contract to recover the extra amount Re was compelled to pay for Ris fare, and Re cannot recover for tlie tort of tRe conductor in expelling Rim, — otRers Rolding tRat tRe passenger Ras tRe right to rely upon tRe acts and statements of tRe ticket agents or conductors, and tRat, if expelled from tRe train wRen Re Ras acted in good faitR and is witliout fault, tRe carrier would Re liable in damages for sucR expulsion, wRetRer tRe action is brought for a breach of tRe contract or solely for tRe tort of tlie conductor.

WitR this conflict in tRe decisions, state and national, we must examine tRe reasons given by tRe courts for tRe adoption of tlie rule upon wliicR their decisions are founded, and endeavor to ascertain tRe controlling principles of tRe law applicable to this case which are best established by the soundest reason and justice' of the cases.

In the view we take of the question of pleadings it is wholly immaterial whether the action is to be treated as founded upon a tort, pure and simple, as claimed by the plaintiff in error, or as an action upon a contract to recover damages resulting from a tortious breach of the contract. Under the system of practice prevailing in many of the states there ought not to be any special controversy as to the character of this action, as the formal distinctions which prevailed at common law are abolished.

TRe action was instituted in California, and, being an action at law, is controlled by the provisions of the Code and decisions of tíre state court. In Gorman v. Southern Pac. Co., 97 Cal. 6, 31 Pac. 1112, tlie court expressly held that, “when a passenger is wrongfully expelled from a train, it is a breach of duty on tlie part of the carrier, and an action in tort will lie to recover damages.” McGinnis v. Railway Co., 21 Mo. App. 407; Railroad Co. v. Roberts, 91 Ga. 513, 519, 18 S. E. 315; Hall v. Railroad Co., 15 Fed. 59.

In all such actions the plaintiff is not to be confined in Ris recovery to the price of his extra tickets or fare or mere loss of time, but the jury may award damages for the humiliation or injury received by Ris wrongful expulsion from the train. Zion v. Southern Pac. Co., 67 Fed. 503, and authorities there cited. WitR reference to the principles enunciated in the charge of the court it is deemed proper to refer generally to many cases which discuss the relative rights and duties of a railroad company and of its passengers.

It has been held that it is a reasonable regulation upon the part of the company to require passengers getting upon its railroad train without a ticket to pay at litional fare, but in this connection the courts declare that a reasonable opportunity must be given to the passenger to enable him to purchase the ticket, and that, if the passenger fails to purchase a ticket solely on account of the premature closing of the ticket office, or of the failure of the railroad company to have an office for the sale of tickets, he cannot be required to pay additional fare, and, if expelled for the nonpayment of the additional fare, after paying or offering to pay the regular fare, he is entitled to recover damages for the expulsion.

Poole v. Railroad Co., 16 Or. 261, 19 Pac. 107; State v. Hungerford, 39 Minn. 7, 38 N. W. 628; Everett v. Railway Co., 69 Iowa, 15, 28 N. W. 410. The reason given is that, to allow a railroad company to enforce its rule for additional fare, under such circumstances, would be punishing the passenger for the railroad company’s neglect of duty. Unless the railroad company furnishes the necessary conveniences or facilities for procuring tickets, the passenger cannot be considered to be in any manner at fault. Ray, Neg. Imp. Dut. 181-183, and authorities there cited.

With reference to the right of a passenger to be carried on the wrong coupon, where the coupons are detached by the conductor on the going trip, and the returning coupon, instead of the going coupon, is retained by the conductor, and the going coupon, instead of the returning coupon, given to the passenger, which the passenger retains without discovering tin; mistake until he presents it to the'conductor on the return trip, and then makes his explanation as to how the mistake occurred, the courts have held that under such circumstances the passenger1 has the lawful right to be carried on his return trip on presenting the going coupon, with the explanation; and, if expelled for- not paying his fare, he is entitled to recover damages for the expulsion.

Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. 439; Railway Co. v. Fix, 88 Ind. 381; Railroad Co. v. Bambrey (Pa. Sup.) 16 Atl. 67; Wightman v. Railway Co. (Wis.) 40 N. W. 689; Railroad Co. v. Rice, 64 Md. 63, 21 Atl. 97; Rouser v. Railway Co., 97 Mich. 565, 56 N. W. 937. These cases, as well as the others previously referred to, all proceed upon the broad' ground that the passenger was wholly wilhout fault; that he had done all that could reasonably" be required of him to do; and that the railroad company, by the mistake, carelessness, or negligence of its agents or conductors, was itself at fault.

This is the underlying principle of all the well-considered cast's upon this subject. This principle is fair to both parties. It is sound, reasonable, and'just. In further support of it we cite the following additional authorities: Johnson v. Railway Co., 46 Fed. 347; Zion v. Southern Pac. Co., 67 Fed. 506; Head v. Railway Co. (Ga.) 7 S. E. 217; Railroad Co. v. Dougherty, 86 Ga. 744, 12 S. E. 747; Railroad Co. v. Roberts, 91 Ga. 514, 18 S. E. 315; Railway Co. v. Hennigh, 39 Ind. 509; Hufford v. Railroad Co., 64 Mich. 631, 31 N. W. 544; Railway Co. v. Mackie (Tex. Sup.) 9 S. W. 451; Railroad Co. v. Conley (Ind.

App.) 32 N. E. 96; Murdock v. Railroad Co., 137 Mass. 293; Muckle v. Railway Co., 79 Hun, 38, 29 N. Y. Supp. 732; McGinnis v. Railway Co., 21 Mo. App. 399; Burnham v. Railway Co., 63 Me. 298. In a majority of the cases cited by the plaintiff in error in support of its contention, it affirmatively appears that the passenger was himself at fault, and that the railroad company was free from any fault, negligence, carelessness, or mistake. Especially is this true in the following cases: Railway Co. v. Bennett, 1 C. C. A. 544, 50 Fed. 496; Dietrich v. Railroad Co., 71 Pa. St. 433; Railway Co. v.

Griffin, 68 Ill. 499; Pennington v. Railroad Co., 62 Md. 95; Johnson v. Railroad Co., 63 Md. 106; Petrie v. Railroad Co., 42 N. J. Law, 449. In Mosher v. Railroad Co., 127 U. S. 390, 8 Sup. C Gt. 1324, upon which plaintiff in error principally relies, neither party seems to have been at fault. In that case there was a .special contract in regard to a tourist’s ticket sold by the St. Louis, Railroad Company to Mosher at St. Louis, Mo., “good for one first-class passage to Hot Springs, Ark., and return, when officially stamped on back hereof, and presented with coupons attached.” The St.

Louis Railroad extended to Malvern, and a coupon on the ticket entitled Mosh-er to be carried from Malvern to Hot Springs, and back on the Hot Springs Railroad.

The regulations upon the ticket provided that it was not good for return passage “unless the holder identifies himself as the original purchaser to the satisfaction of the authorized agent of -the Hot Springs Railroad at Hot Springs, Ark.” When Mosher returned, he went to the ticket office of the Hot Springs Railroad, at Hot Springs, for the purpose of having himself identified in pursuance of the terms of the ticket, but failed to obtain such identification on account of the failure of the Hot Springs Railroad to have an agent at that place.

He returned over the Hot Springs road to Malvern, and when he got upon the train of the St. Louis road the conductor called for his ticket, and refused to honor it, because its conditions had not been complied with. Another condition upon this ticket was “that in selling this ticket the St. Louis, Iron Mountain and Southern Railway Company acts only as agent, and is not responsible beyond its own line.” Upon these facts the court held that Mosher had no cause of action against the St. Louis Company for his expulsion.

In the course of the opinion the court said: “By the first condition of the contract contained in the plaintiff’s ticket the defendant is not responsible beyond its own line. Consequently, it was not responsible to the plaintiff for failing to have an agent at the further end of the Hot Springs Railroad. The agent who was to identify the passenger and stamp his ticket there was the agent of the Hot Springs Railroad Company, and is so described in the ticket, as well as in the petition.

If there was any duty to have an agent at Hot Springs, it was the duty of that company, and not of the defendant. ⅞ ⅞ * The omission to have an agent at Hot Springs not being a breach of contract or of duty on the part of this defendant, tho case is relieved of all difficulty.” This was the reason, and the sole reason, given for the decision. It will therefore readily be §een that the decision in that case does not support the views, contended for by the plaintiff in error. In Railroad Co. v. Winter’s Adm’r, 143 U. S. 60, 73, 12 Sup.

Ct. 356, there is a clear recognition of the fundamental principles which we have announced.

The court, in the course of the opinion, said : “The reason of such rule is to be found in the principle that, where a party does all that he is required to do under the terms of a contract into which he has entered, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party for such breach of contract.” In the present case Pauson introduced testimony tending to show, and from which the jury were authorized to infer, that he had fully complied with all the conditions of the ticket upon his part; that he “did present himself to an agent, and sign the ticket in his [the agent’s] presence, and the agent took the ticket; and returned it in such a way and under such circumstances as to justify plaintiff in believing that he, the agent, had witnessed and stamped the ticket, and plaintiff, so believing, entered the train.” Tlie court did not err in instructing the jury that, if they believed such facts to be true, then the plaintiff was a legal passenger, and his removal from the train was unlawful.

The judgment of the circuit court is affirmed.