(after stating the facts.) The objection of counsel for appellant to the instructions given by the court, and their insistence that the instructions asked by them should! have been given, are both based upon the same proposition, and that is that the face of the ticket presented by the passenger was, as to the train auditor, conclusive of the terms of the contract of carriage between the passenger and the railroad company.
The precise question has been determined adversely to their contention by this court in the case of Hot Springs Railroad Co. v. Deloney, 65 Ark. 177.
In that case the plaintiff purchased from the defendant'’ agent at Hot Springs, Arkansas, a ticket for passage of himself from Hot Springs to Atkins, the agent having authority to hell tickets over the defendant’s line to Malvern and the connecting line extending from there to Atkins. In making out the ticket the agent left off or omitted the coupon or that part of the ticket calling for passage from Hot Springs to Malvern. The plaintiff did not discover the mistake and embarked on defendant’s train for Malvern. The conductor refused to accept the ticket, and plaintiff was ejected for nonpayment of his fare. He brought suit against the railroad company for wrongful expulsion from its passenger coach; and the same defense was made as is done in this case.
The court referred to the conflicting decisions on the question, citing the leading cases on each side, and then said:
“S’ome modifications of the rule, as contended for by each party to the controversy, have been attempted, but efforts to reconcile the two have not so far been crowned with any great degree of success. There is this much to be said, however, and that is that the tendency of more recent decisions is towards at least a conservative view of the principle contended for by appellee’s counsel; and we adopt that in this case, towit, that, notwithstanding the conductor has only carried out the company’s rules and regulations, and these are reasonable, and he therefore may be exonerated from blame personally, yet, as the company, through its ticket agent acting for it, was guilty of doing that which produced all the injury the plaintiff may have suffered from being put off the train, it is liable for such, and can not shield itself behind the faithfulness of its servant, the conductor, for its negligence in not delivering a proper ticket to the plaintiff, and has not only injured the plaintiff, if indeed he was injured, but placed the conductor in the attitude of participating in the wrongdoing, while yet performing his duty personally, while of course ignorant of the wrong done to the plaintiff, if any was done.”
Continuing, on the measure of damages, the court said: “We think, therefore, that plaintiff is entitled to all damages that may -have grown out of his expulsion; such as for the delay in ■completing his journey, for the time and^trouble of having to walk back to the Hot Springs, depot, and for such humiliation as he was made to undergo by being put off. These damages are all, however, only compensatory, unless the element of malice, recklessness or wantonness entered into the motive with which the injury was done, if done at all.”
In the case of Little Rock Railway & Electric Company v. Goerner, 80 Ark. 158, there is language used in the opinion which is in seeming conflict with the rule announced in the Deloney case. But in that case the 'complaint alleged that the conductor of the street car used insulting language to the plaintiff, assaulted him, and that unnecessary force was used in removing him from the car. The court held that under such circumstances the plaintiff was entitled to recover punitive as well as compensatory damages. The language referred to was used in discussing whether the plaintiff was entitled to punitive damages under the allegations of the complaint, and was not necessary to a determination of that question. The Deloney case was nowhere referred to in the opinion, and the rule announced by it was not involved by the issue raised in the Goerner case. Hence so much of the language of the opinion in the Goerner case as may be construed to be in conflict with the rule established in the Deloney case is obiter.
’As stated by the court in the Deloney case, the question whether “a conductor, collecting tickets and fares, is justified in relying solely upon the face and appearance of the ticket to determine his duty as to the acceptance of the same, and as to his expulsion of a passenger for refusing to pay fare, in case of his rejection of the same, has given rise to one of the most protracted discussions in all the domain of the law pertaining to the relative duties of carriers and passengers.”
The direct’question was involved in that case, and the issue was fully presented by able counsel on both sides. No new or additional reasons are given to cause the court to recede from the rule there established. Whatever may be the rule elsewhere, the question may be considered settled in this State.
The undisputed evidence shows that the additional punch marks were made by the agent of the initial carrier who sold the ticket, and that they were made to correct a mistake as to its time limit made by him in issuing it. There was also sufficient evidence to warrant the jury in finding that the description of the original purchaser as a female was a mistake made by the agent who issued the ticket, and that there was no negligence on the part of appellee in presenting it for passage. He had purchased four tickets to he used respectively by his wife, himself and their two children. Of course, the jury might have found that he had got his ticket mixed up with that of his wife. On the other hand, they might have found, as they did find, that the agent in issuing the ticket made the mistake. The description was indicated by punch marks opposite the words. The rest of the description, as indicated by the punch marks, fitted the appellee, and not his wife. The other ticket had been accepted as passage for his wife without question.
We think the issues were fairly presented to the jury undter proper instructions, and that no errors of law were committed in the trial.
Counsel for appellant also raise the question that the damages are excessive. In this we think they are correct. The jury returned a verdict for $1,000. The circumstances under which Baty was ejected show that the servants of the railway company were actuated by no other motive than what they considered a proper discharge of their duties. Baty had the money with which to have paid his fare. He was given an opportunity to do so. He was told that he was ejected! solely on the ground that under the rules and regulations of the company they could not accept his ticket for passage.
A careful consideration of the testimony convinces us that it does not warrant a verdict for exceeding $250.
In this case there is no' error of the court in the proceedings below, and we require the plaintiff to remit down to an amount that we would be willing to approve, if the jury had returned a verdict for that amount. If the plaintiff will within two weeks remit the judgment down to $250, the judgment will be affirmed; otherwise it will be reversed, and the cause remanded for a new trial.