March 27, 1915. The opinion of the Court was delivered by The respondent lives in Winnsboro, S.C. and desired to go to Black Mountain, N.C., for a vacation. The appellant railroad company has three routes between Winnsboro and Black Mountain. For the purpose of convenience we will call them the Salisbury route, the Statesville route and the Marion route. The Salisbury route was the longest and the Marion route the shortest in miles. The fare (round trip) by the Salisbury route was seven dollars and seventy-five cents. Although there was considerable difference in the distances by the Statesville and Marion routes the fare was the same, to wit, six dollars and seventy-five cents; while the fare was a dollar more by the Salisbury route the connection was better and it was cheaper and quicker to the passenger in the long run. The respondent claims that he went to the agent of the appellant at Winnsboro and asked for a ticket to Black Mountain by the Salisbury route and paid him the seven dollars and seventy-five cents required. The respondent was given a summer excursion round trip ticket upon which was marked "via short line only." This ticket the respondent signed. Respondent's baggage was checked via Salisbury. On the way to Black Mountain the respondent went by Salisbury and his ticket was accepted without question. On the return trip the plaintiff was directed by the conductor to get off at Marion, and before he had reached Statesville even, and take the short trip or to pay one dollar and thirty cents additional fare. This the *Page 291 respondent refused to do, stating that he had paid for transportation by the Salisbury route; that he had come that way and would return that way. The conductor refused to honor the ticket by that route and ejected him. The respondent then brought suit for punitive damages for the wilful and malicious conduct of the appellant in ejecting him. The respondent amended his complaint to allege that the agent of the defendant wilfully, fraudulently and knowingly delivered to the plaintiff the wrong ticket. Upon the trial of the cause the jury found a verdict for the plaintiff and from the judgment entered thereon the defendant appealed. The defendant moved for a nonsuit and for a direction of verdict upon the whole case; both motions were overruled.
There are several exceptions, but the appellant makes an independent statement of the questions. This practice the Court commends. It is by far the most satisfactory way.
"There was error in not directing a verdict generally for the defendant upon the ground that, under the interstate commerce act the ticket was the exclusive contract between the plaintiff and the defendant and the plaintiff was legally and properly ejected from the train for failure to conform and comply with the conditions and limitations of such contract of carriage" — i. e., the payment of the extra fare.
The ejectment occurred in North Carolina and the statutes of that State allowed the ejectment of a passenger for nonpayment of fare. The rate in this case was fixed by the Interstate Commerce Commission and fixed for the Salisbury route at $7.75. There was testimony, and it was uncontradicted, that the passenger had paid $7.75. He paid every cent that the law required. To grant this motion, his Honor would have had to find in the face of the uncontradicted testimony that the plaintiff had not paid the full fare. It is said, however, that the plaintiff had signed a *Page 292 contract that required him to go by the Marion route. The plaintiff is bound by any lawful contract he may make. The parties could not make a contract that was in violation of the rates fixed by the Interstate Commerce Commission that would bind either party. It is just as unlawful to charge too little as to charge too much. The railroad company could no more have made a contract by the short route at $7.75 than it could have made a contract by long route at $6.75. Good rules work both ways.
The principle upon which appellant's agents acted, to wit, when in doubt charge the higher rate, is not sound. If the plaintiff had paid $6.75 and had gone by Salisbury, in spite of any contract it may have signed, it not only had the right, but it was its duty, under heavy penalties, to collect the excess as, if it did not discover the mistake until after the transportation had ended, it had then the right to demand and bring suit, if necessary, to collect the deficit. If the plaintiff had paid $6.75, then he had the choice of two routes, to wit, Statesville or Marion, and he could bind himself to go by Statesville or by Marion, and when he signed the contract to take the short route he bound himself to take the Marion route. If, however, he paid the $7.75 there was only one route for that fare and it was unlawful under that fare to take any other. No other contract would have been allowed by law and an unlawful contract binds no one. This position cannot be sustained.
There was error in not directing a verdict in favor of the defendant upon the ground that, under the law of the State of North Carolina, and the undisputed facts of the case, the plaintiff could not recover punitive damages.
This was a motion to direct a verdict on the whole case. Two acts were complained of, to wit, a wilful and fraudulent sale of the ticket, as well as the wilful ejection. The direction of a verdict would have included both. The *Page 293 amendment to the complaint put the blame on the ticket agent.
There is testimony to show that the plaintiff called for a ticket by Salisbury and paid for it. There is also testimony that plaintiff's baggage was checked that way. The jury might have inferred from that the agent thoroughly understood the route and yet gave him the wrong ticket.
Was that negligence or wilfulness. Fraud was charged. The only one who could have explained the improper ticket, to wit, the ticket agent, was not put on the stand and no explanation was given. On the contrary, the regular ticket agent (for he who sold the ticket was a substitute) testified that the cash entry made by the substitute was only $6.75.
If the substitute received $7.75 and only accounted to the railroad company for $6.75, then fraudulent conduct might have been inferred. The defendant was not required to put him up, but when it did not it can't complain if the jury took the view that he could not deny the charge.
This is not a criminal proceeding, where the defendant is shielded. This proposition cannot be sustained.
"His Honor should have directed a verdict upon the ground that under the terms and conditions of his ticket, which was the contract between him and the carrier, he had no right to be carried by the longer route without payment of extra fare, and the defendant's agents, therefore, had the right under the law of the State of North Carolina to eject him."
The uncontradicted testimony is that the plaintiff had already paid the fare. This position cannot be sustained.
"His Honor erred in modifying the defendant's third, fourth and fourteenth requests to charge."
The defendant asked his Honor to charge that the plaintiff is bound by the contract that he signed, and his Honor added. "if he got the contract he called for and paid *Page 294 for." The route was in question. We have seen that there was but one route for $7.75. There was but one route possible for that fare. His Honor had no right to tell the jury that when the Interstate Commerce Commission had fixed the fare on the short route at $6.75 the parties could make a binding contract for that route at $7.75. This proposition cannot be sustained.
The judgment is affirmed.