If the taking of the dollar in excess of the correct fare was a mere error or mistake on the part of the agent, the defendant was not liable for a penalty. Railway Company v. Clark, 58 Ark. 490; St. Louis, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42.
Under proper instructions, the court submitted to the jury the question of whether in making the change the agent made an honest mistake without the intention of taking an amount greater than was allowed by the statute, and the verdict of the jury is conclusive on appeal.
It is next contended by counsel for defendant that the statute upon which this suit is based permits the railway company to charge three cents per mile, and that there is no testimony tending to show that it charged a greater rate than that. They insist that, while the agent testified on cross examination that the fare as published was sixty-nine cents, and was based on a rate of three cents per mile, his testimony on this point was explained on re-examination by his statement that the fare was so fixed to meet the competition of the Iron Mountain Railroad, which had a shorter line from Little Rock to Benton; but we think his testimony on re-examination was rather contradictory than explanatory of his testimony on cross examination, and the verdict of the jury shows that it believed the testimony given by him on cross examination on this point, and did not believe that given by him on re-examination.
Finally, it is claimed by counsel for defendant that in any event there was but one transaction, and that there can not be more than one overcharge nor more than one penalty. On the other hand, it is insisted by counsel for the plaintiffs that the judgments in both cases should be affirmed under the authority of St. Louis, I. M. & S. Ry. Co. v. Freeman, 95 Ark. 218, and St. Louis, I. M. & S. Ry. Co. v. Frisby, 95 Ark. 281. In those cases we held that the party aggrieved who may recover the penalty against a railroad company for charging excessive fare as provided by section 6620, Kirby’s Digest, is the person intending to become a passenger. But we do not regard the constru'ction placed upon the act in those cases as controlling the present appeal under the facts disclosed by the record. If the facts in the record showed that the agent had intended to charge seventy cents or any greater amount than sixty-nine cents for each ticket, then, under the authority of the Freeman and Frisby cases, both I. H. Young and his wife, N. A. Young, would be entitled to recover.
But the testimony, as it appears from the record, shows that the real substance of the transaction was that I. H. Young purchased two tickets for Benton; that the agent knew that the fare was sixty-nine cents, and either intentionally or by mistake kept one dollar of the amount tendered in payment of the tickets. The jury by its verdict found that the dollar was intentionally kept by the agent, but there is nothing in the record from which it can reasonably be inferred that he intended to apportion his wrongful act between the two tickets. He knew the fare was only sixty-nine cents, and says that he only intended to charge that amount for a ticket. His act in keeping the dollar then is referable only to his transaction with I. H. Young, and can not be extended to the purchase of the ticket for Mrs. Young without some testimony tending to show that he intended to make an excessive charge for her ticket. Counsel for plaintiff urge that, in as much as both tickets were purchased at the same time, and as there is nothing to show whether he intended to make an overcharge on one or both of the tickets, the presumption is that he intended to charge an excessive rate on both tickets. On the. other hand, we think that, in the absence of any proof upon which it could be reasonably inferred that the agent intended to make an overcharge on both tickets, the inference is that he intended the overcharge for the ticket of the person with whom the transaction was conducted. This is so because the party suing for the penalty under the statute must by proof bring himself within the terms of the statute before he can be allowed to recover the penalty.
It follows that the judgment in favor of I. H. Young will be affirmed; and the judgment in favor of N. A. Young will be reversed, and her cause of action dismissed. '