delivered the opinion of the court.
By the declaration the pleader seems to rely on two causes of action : the alleged refusal or neglect of the ticket agent to give appellee an exchange ticket in accordance with provision 2 of the contract, and the expulsion of appellee from, the train by the conductor. Can the appellee recover damages on account of being compelled by the conductor to leave the train ? One of the rules of the company, which is also a part of appellee’s contract, is that a mileage ticket, such as that in question, will not be honored on a train or in checking baggage, but must be presented by the purchaser at a ticket office, and there exchanged for a continuous passage ticket, and that the mileage ticket must be presented to the conductor with the exchange ticket received from the ticket agent. That appellee knew that such was the rule, is shown by his own evidence, namely, that he tried to procure an exchange ticket from the ticket agent, and that when the train started, he told the conductor that he was in a peculiar position, that he hadn’t a ticket. On his cross-examination he testified that it was his custom to get a ticket. Appellee not having an exchange ticket, and not offering to pay his fare, it was lawful for the conductor
to put him off the train. In Chicago & N. W. Ry. Co. v. Bannerman, 15 Ill. App. 100, the court quote with approval the following from Frederick v. M. H., etc., Ry. Co., 37 Mich. 342.
“ As between the conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as evidence of his right to the seat he claims.”
Cogent reasons are given for this rule in the Michigan case. In C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499, the court substantially announces the same rule, saying :
“ The evidence tends to prove the mistake occurred at Mendota, through the inadvertence of the ticket agent in giving out the wrong ticket. If so, the conductor was right in demanding fare a second time. He was not bound to rely upon the statements of appellee that he had paid his fare to the station to which he desired to be carried.”
In Pullman Palace Car Co. v. Reed, 75 Ill. 125, a passenger who had purchased a sleeping-car ticket, but who had temporarily lost it in the car, was removed from the sleeping-car to another car by the conductor, because he could not produce his sleeping-car ticket when it was called for. The ticket was afterward found in the car. Held, that he was only entitled to recover the price of the ticket, $1.50. See also, C. & A. R. R. Co. v. Willard, 31 Ill. App. 438, and Penn. R. R. Co. v. Connell, 112 Ill. 295. In the former case the court say:
“ The rule requiring the passenger to exhibit a ticket or pay fare being reasonable and just, the conductor owes the duty to his employer to enforce it, and to eject the passenger failing to comply therewith. The performance of this duty is a lawful act of the conductor, unless unnecessary force or violence is resorted to by him, and resistance by the passenger to such lawful act is a wrong on his part. Under such circumstances he has no right to repel force with force and invite an assault and the struggle which might ensue,” citing numerous authorities.
In a note to Thompson’s Carriers of Passengers, p. 338, it is said:
“ The conductor can not be expected to accept explanations of the passenger in regard to an improper ticket which he produces, or when he fails to produce any ticket whatever,” citing a number of cases.
Appellee testified that on some other occasions he had ridden on his mileage ticket, conductors having taken coupons therefrom for his fare; but even if it be true that some other conductors violated their duty in this regard, this would not have justified the conductor in question in carrying appellee without an exchange ticket or cash fare. The evidence falls far short of proving that it was the custom to accept coupons from such a ticket as appellee’s in payment of fare, even if such custom would avail appellee as against his express contract.'
We think it clear, from the authorities cited, and numerous others which might be cited, that there can be no recovery by appellee for his expulsion from the train. He took the train, well knowing that, in accordance with the terms of his contract, he was liable to expulsion, and no physical force appears to have been used in expelling him. The record contains no evidence of any pecuniary loss or damage to appellee by reason of his having been delayed in his journey by the alleged refusal or neglect of the ticket agent to furnish him with an exchange ticket, and although there may have been such loss or damage, yet, there being no evidence on which to base an assessment of it, the judgment can not be sustained. Appellant’s counsel contends that the action should be assumpsit, and not case, and that there can be no recovery in case. We are of opinion that case will lie for the alleged refusal or neglect of the ticket agent. 1 Chitty’s Pl. 9th Am. Ed. 135.
Whether there was unreasonable refusal or neglect is a question of fact to be determined from the evidence.
Appellant’s counsel excepts to the refusal of the court to hold appellant’s fourth and fifth propositions as law, which propositions are as follows:
“ 4th. Under the evidence in this case the said conductor was not legally bound to accept coupons from said mileage ticket in payment of plaintiff’s fare on said train.
“ 5th. The conductor of the train in question was bound to conform to the conditions and requirements of the mileage ticket presented by the plaintiff, and in the absence of a proper order by the defendant, Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, was not bound to accept or comply with any request which would compel him to deviate from said conditions and requirements.”
These propositions state the law, and their refusal was error.
The judgment will be reversed and the cause remanded.