July 29, 1908. The opinion of the Court was delivered by We are convinced that there should be a new trial on the ground that there was no evidence tending to show any wilful disregard of duty to plaintiff
The plaintiff on November 10, 1907, boarded defendant's train at Langley to go to Warrenville. When the conductor demanded the usual fare of five cents, plaintiff tendered a five-dollar bill. The finding of fact, which is conclusive on this Court, since there is some conflict in the testimony, is that the conductor had more than five dollars in change at the time. The following rule of the defendant company was in force at that time:
"Order No. 240. November 4, 1907.
"Notice to all conductors:
"Owing to the scarcity of change, and impossibility of our conductors being able to supply change for amounts over $2.00, tendered for car fare, conductors on both divisions are hereby notified that they are not required to give more than $1.95 in change for a single fare.
"Conductors are requested to accommodate passengers, if possible or convenient, for amounts exceeding $2.00.
"If sums of $5.00 or more are offered, conductor should take the amounts and request smaller change, and if passenger cannot or will not tender a smaller amount, conductor should ring up fare and notify passenger that change will be handed him at office of company, or at end of line. Demand name and address at same time, for conductor's protection. Augusta-Aiken Railway Electric Company. E.P. Whetmore, General Manager."
The plaintiff testified that he had no notice of such rule, and we are bound by the finding of the Circuit Court that the rule had not been brought to the attention of the traveling public in any manner, as it cannot be said that such finding was wholly without evidence to support it.
When the plaintiff tendered the five-dollar bill, the conductor informed him that it was against the rules of the *Page 143 company to change over a two-dollar bill. The plaintiff declined to leave the bill with the conductor to be changed at the end of the line, whereupon the conductor informed him that he would have to pay his fare or get off at Gloverville. On reaching Gloverville, the conductor informed the plaintiff that he would have to get off, whereupon plaintiff left the train, waited an hour for the next train, and pursued his way. There was not the slightest evidence of rudeness or violence on the part of the conductor towards the plaintiff. Assuming that it was his duty to enforce the rules of the company, it must be conceded that he breached no propriety in the manner of its enforcement.
The case of Gwynn v. Telephone Co., 69 S.C. 434,48 S.E., 460, 67 L.R.A., 111, is authority for the proposition that "a tort committed by mistake, in the assertion of a supposed right, or without any actual wrong intention, and without such recklessness or negligence as evinces malice or a conscious disregard of the rights of others, will not warrant the giving of damages for punishment."
The defendant company unquestionably had the right to adopt reasonable rules for the transaction of its business, and it is the duty of the passengers to comply with such rules. The Circuit Court has found in this case that "a tender of five dollars to pay a five-cent fare would be disproportionate to the amount of the fare, and that under a proper rule on the part of the carrier upon the subject, in existence and actually enforced, the carrier could not be forced to furnish change for so large an amount." He, however, held that such rule had not been brought to the notice of the traveling public and had been habitually disregarded and waived. This shows that the Circuit Court would have regarded as unreasonable the tender to the defendant railroad of five dollars for a five-cent fare, had it been admitted that defendant had promulgated a rule to that effect and had not waived it.
There is, therefore, no finding below that the rule is unreasonable, and, indeed, there is no fact appearing in the *Page 144 record to suggest a doubt of its reasonableness. The difficulty of making change in the cotton-picking season in South Carolina is a well known fact, and the Court takes notice of the territory and the thick population and the numerous mill towns along the route between Augusta and Aiken, which renders it probable that numerous fares will be collected on the defendant electric railway between these points on a single trip. To require defendant to furnish change for every bill presented would be unreasonable.
The California and New York courts agree upon the proposition "that a passenger upon a street railway is not bound to tender the exact fare, but must tender a reasonable sum, and the carrier must accept such tender and furnish change to a reasonable amount;" but in California the Court, in view of local conditions, held that a tender of a gold coin of five dollars, the lowest gold coin in use in that section, for a five-cent fare, was reasonable. Barrett v.Market St. Ry. Co., 81 Cal., 295, 15 Am. St. Rep., 62, 6 L.R.A., 336; whereas, in New York it is held that conductors cannot be required to furnish change for a five-dollar bill in payment of street car fare, and that a rule of the company requiring change to be made to the amount of two dollars is reasonable. Barker v. R.R. Co., 151 N.Y., 237, 56 Am. St. Rep., 626, 35 L.R.A., 489.
Conceding that the conductor had more than five dollars in change at the time plaintiff tendered his bill, that did not make it the conductor's duty to so deprive himself of change as to be unable to meet the reasonable requirements of the trip. Suppose he had $6.80 in change at the time; if he had given plaintiff $4.95 of that sum he would thereby have rendered himself unable to give change to the next passenger presenting a two-dollar bill. If he had failed to make change for such next passenger, in breach of the rules of the company, would he not have violated the right of such passenger? Could not such passenger say: "You must change my two-dollar bill because your rules require it." Can it possibly be a wilful breach of duty to the first passenger *Page 145 to decline to do that which would reasonably result in a breach of duty to the second passenger? It is true that the conductor on a number of occasions made change for five dollars, but this was when he had "plenty of change," and this was not in disregard of the rules, but in strict conformity thereto. "Plenty of change" does not mean plenty for a single transaction, but plenty for the reasonable requirements of the trip. The conductor must necessarily be allowed some discretion in deciding whether he has such an amount in change for the probable demands of the trip as would allow him to change over two dollars in a particular case.
We fail to find a scintilla of evidence in the record tending to show that the rule of the company had been habitually disregarded and waived. Indeed, not one of the witnesses who testified as to seeing the conductor change a five-dollar bill previously to the occasion in question says that it was done after the 4th November, 1907, when the rule was adopted. The rule had been recently adopted before the occasion in question and possibly it was negligence to fail to give some public notice of it. But, as declared in the New York case above cited, it is not the duty of the carrier to bring home to each passenger a personal knowledge of the existence of a reasonable rule. When notice of the rule was brought home to the plaintiff, it was his duty to make an effort to comply, and yet it appears, by his own testimony, that he knew some of the people on the car, but did not try to borrow a nickel, and there is not a particle of evidence that he made the slightest effort to have his bill changed by his fellow-passengers.
The judgment of the Circuit Court is reversed and the case remanded for a new trial.