Dissenting Opinion.
Gillett, J.— I find myself unable to agree with' the result in this ease, and with most of the views expressed in the opinion written by Jordan, J. The action, as disclosed by said opinion, is for tort, in ejecting appellee from a street car. It appears from the complaint, as well as the evidence, that he was ejected because he persisted in being carried upon a transfer ticket that did not purport to authorize him to ride on the car on which he had last taken passage.
The contract of appellant with the city provided that “the fare and transfer ticket shall entitle such passenger to ride upon said car upon which he has taken passage to the point where said line first intersects with the line to which such passenger desires to be transferred, which shall be plainly indicated on said transfer ticket, and after riding to said point of intersection such passenger may take passage on any car on the line indicated on his said transfer ticket, and on the surrender thereof to the conductor of such car shall be permitted to ride to the end of the last named line.”
The evidence shows that appellee was a man of intelligence, who knew not only appellant’s system of transferring in its outline, but who had specific knowledge of the fact, which was also indicated on the face of the ticket, that to entitle him to be carried on a transfer he must-surrender to the conductor a transfer ticket that had the name of the line of cars to which he had transferred indicated by a punch in the space in the ticket in which such name was printed.
*173I desire to say at tlae outset that I think there is a clear distinction between this case and cases where the ticket is not insufficient on its face, or where it is ambiguous, or denotes the fact of a mistake upon a mere inspection of it, or where the traveler enters the train with a proper ticket that is afterwards taken up. The question in the case at bar is, can the appellee, under the circumstances of this case, maintain tort for being ejected from a car while insisting upon the right to ride upon a ticket that was palpably insufficient?
I agree with Jordan, J., that a transfer ticket is not a contract, but is a mere token. It is said by Mr. Wood in his work on railroads (2d ed.), 1634: “Tickets issued by a railway company to a passenger are prima facie evidence of a contract between the railway company and the passenger, to transport the latter and his personal baggage from the station named therein as the place of departure, to the station named therein as the place of destination.” See, also, Thompson, Carriers of Passengers, 65; Eetter, Carriers of Passengers, 711, and cases there cited. Back of the ordinary ticket is the contract of .the parties. There is a breach of that contract when the agent with whom it is made delivers a wrong token to the passenger. For the violation of that contract the carrier is liable fox damages. The contract is to carry, and the damages are to be admeasured with that fact in view. Consequently the damages may in many cases be substantial, and include every element that might be recovered for in case of tort, saving damages for being ejected.
In Hobbs v. London, etc., R. Co., 44 L. J. Q. B. 49, a case where the plaintiff had been negligently carried to the wrong station, Blackburn, J., said: “This is in reality an action on the contract. It is commonly called a duty, but it arises out of contract.” In a subsequent portion of the opinion, in discussing the question of damages, it was said: “The question of remoteness is left in great *174vagueness, 'and I can not bring myself much nearer to a definition, though perhaps it is made a little more definite by saying, that you may recover such damage as might be reasonably contemplated by the parties as likely to be the result of a breach of the contract between them: I think we can, without being able to define the line, very clearly see-on which side of it each case is. I think the lin,e must be left vague.”
A rule requiring passengers who do not pay cash fare to manifest their right to be carried by the production of proper tokens is reasonable and valid. Baltimore, etc., R. Co. v. Blocher, 27 Md. 277; Chicago, etc., R. Co. v. Boger, 1 Ill. App. 472; Pullman, etc., Co. v. Reed, 75 Ill. 125, 20 Am. Rep. 232; Frederick v. Marquette, etc., R. Co., 37 Mich. 342, 26 Am. Rep. 531; Willetts v. Buffalo, etc., R. Co., 14 Barb. 585; Hibbard v. New York, etc., R. Co., 15 N. Y. 455; Townsend v. New York, etc., R. Co., 56 N. Y. 295, 15 Am. Rep. 419; Downs v. New York, etc., R. Co., 36 Conn. 287, 4 Am. Rep. 77; Shelton v. Lake Shore, etc., R. Co., 29 Ohio St. 214. Moreover, such rule is so general with carriers that it may be affirmed not only that those who deal with them must take notice of it, but that every person of average intelligence does know of it.
The rule,'then, being reasonable, and one which the proposed traveler may be presumed to be advised of, it is pertinent to inquire, if the latter is deprived of the privilege of remaining upon the car, what was the inception of his right ? Evidently it was the contract. What was the contract ? That the carrier, for a consideration received, would transport the proposed traveler from one point to another, subject to the reasonable regulation that he should produce to the carrier’s conductor the token of his right so to be transported. If the rule amounts to anything, it must become a component part of the contract. But if the passenger receives a wrong token ? Then he may sue in contract for the breach in failing to deliver to him a .proper *175evidence of liis right to ride, and thereby depriving him of such right. But if he sues in tort for being ejected, the carrier may answer: You should not, by virtue of the contract, have expected to continue upon the car after you were advised that you had not obtained a proper token. I did not contract to carry you unless you manifested to my conductor, in the manner that you knew that my rule provided for, that you had a right to be carried. It does not follow that the rule should yield and the passenger be permitted to remain upon the car, because the carrier was to blame in delivering a wrong token; for, whatever the fault of the carrier, the conductor is not in fault, and the carrier can not be charged with a tort committed by its servant unless the servant was also guilty of a tort.
As the rights of the parties had their inception in contract, and as the court can in almost every case completely recompense the plaintiff for the damages that flow from the breach, I am unable to see how the plaintiff could recover more than he might have recovered had he voluntarily left the car, by defying the rule and thereby inviting the very violence which forms the gravamen of his action, if.he is permitted to sue for being ejected.
It is proper to look at the matter from a business point of view, the question arising as to which of two conflicting rights should yield. The rule is reasonable. Its universal adoption is the best vindication of its necessity. A carrier would be warranted in enforcing 'it, even if it were compelled occasionally to respond in damages for breach of contract, as the only means by which it could maintain a proper auditing department of passenger accounts, and yet keep trespassers innumerable off its carriages; but if it were compelled to respond in large sums for assault and battery, based on invited attacks, the burden cast upon the carrier would be great, and its injustice manifest.
Another reason for the enforcement of the doctrine I contend for is based on public policy, since the opposite *176doctrine would affect and impair the rights of third parties; but upon this subject I desire to let the authorities speak. The only rule that , can reasonably be declared in a ease of this kind is that, for the time being — nr, in other words, as between the traveler and the conductor — the ticket must be accepted as conclusive. I now purpose to show what is the law upon this subject by the authorities, and the importance of the case, in my judgment, warrants me in exhibiting to some extent the language used relative to this question by courts and text-writers.
The leading case upon this subject is Frederick v. Marquette, etc., R. Co., 37 Mich. 342, 26 Am. Rep. 531. The court’s opinion was written by Marston, J. It was there said: “IIow, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company where a ticket is purchased and presented to him ? Practically there are Tut two ways, — one, the evidence afforded by the ticket; the other, the statement of the passenger contradicted by the ticket. Which should govern ? In judicial investigations we appreciate the necessity of an obligation of some kind and the benefit of a cross-examination. At common law parties interested were not competent witnesses, and even under our statute the wit-mess is not permitted, in certain cases, to testify as to facts which, if true, were equally'within the knowledge of the opposite party, and he can not be procured. Tet here would be an investigation as to the terms of a contract, where no such safeguards could be thrown around it, and where the conducto!’, at his peril, would have to accept of the mere statement of the interested party. I seriously doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and I doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. There is but one rule which can safely be tolerated with any decent regard to the rights of *177railroad companies and passengers generally. As between tbe conductor and passenger, and tbe right of tbe latter to travel, tbe ticket produced must be conclusive evidence, and be must produce it when called upon, as tbe evidence of bis right to tbe seat be claims. Where a passenger has purchased a ticket and tbe conductor does not carry him according to its terms, or, if the company, through tbe mistake of its agent, has given him tbe wrong ticket, so that be has been compelled to relinquish bis seat, or pay bis fare tbe second time in order to retain it, be would have a remedy against tbe company for a breach of the contract, but be would have to adopt a declaration differing essentially from tbe one resorted to in this ease.” Cooley, J., used language no less emphatic in Hufford v. Grand Rapids, etc., R. Co., 53 Mich. 118, 18 N. W. 580. In Keen v. Detroit Electric Railway, 123 Mich. 247, 81 N. W. 1084 — a transfer case to some extent like this — the court held that tbe plaintiff could not recover for tbe act of tbe conductor in ejecting him
One of tbe clearest decisions of the subject is Bradshaw v. South Boston R. Co., 135 Mass. 407, 46 Am. Rep. 481. Tbe action was for tort in expelling a person from a street ear who insisted upon traveling on a wrong transfer that bad been given him by mistake. In disposing of tbe case, tbe court said: “Tbe conductor of a street railway car can not reasonably be required to take tbe mere word of a passenger that be is entitled to be carried by reason of having paid a fare to tbe conductor of another car; or even to receive and decide upon tbe verbal statements of others as to tbe fact. The conductor has other duties to perform, and it would often be impossible for him to ascertain and decide upon tbe right of the passenger, except in tbe usual, simple and direct way. Tbe cheeks used upon tbe defendant’s road were transferable, and a proper check, when given, might be lost or stolen, or delivered to some *178other person. It is no great hardship upon the passenger to put upon him the duty" of seeing to it, in the first instance, that he receives and presents to the conductor the proper ticket or check; or, if he fails to do this, to leave him to his remedy against the company for a breach of its contract. Otherwise, the conductor must investigate and determine the question, as best he can, while the car is on its passage. The circumstances would not be favorable for a correct decision in a doubtful case. A wrong decision in favor of the passenger'would usually leave the company without remedy for the fare. The passenger disappears at the end of the trip; and, even if it should be ascertained by subsequent inquiry that he had obtained his passage fraudulently, the legal remedy against him would be futile. A railroad company is not expected to give credit for the payment of a single fare. A wrong decision against the passenger, on the other hand, would subject the company to liability in an action at law, and perhaps with substantial damages. The practical result would be, either that the railroad company would find itself obliged in common prudence to carry every passenger who should claim a right to ride in its cars, and thus to submit to frequent frauds, or else, in order to avoid this wrong, to make such stringent rules as greatly to incommode the public, and deprive them of the facilities of transfer from one line to another which they now enjoy. It is a reasonable practice to require a passenger to pay his fare, oí to show a ticket, cheek, or pass; and, in view of the difficulties above alluded to, it would be unreasonable to hold that a passenger, without ■ such evidence of his right to be carried, might forcibly retain his seat in a car, upon his mere statement that he is entitled to a passage. Itf the company has agreed to furnish him with a proper ticket, and has failed to do so, he is not at liberty to assert and maintain by force his rights under that contract; but he is bound to yield, for the time being, to the reasonable practice and requirements *179of the company, and enforce his rights in a more appropriate way. It is easy to perceive that in a moment of irritation and excitement it may be unpleasannt to a passenger who has once paid to submit to an additional exaction. But, unless the law holds him to do this, there arises at once a conflict of rights. His right to transportation is no greater than the right and duty of the conductor to enforce reasonable rules, and to conform to reasonable and settled customs and practices, in order to prevent the company from being defrauded; and a forcible collision might ensue. The two supposed rights are in fact inconsistent with each other. If the passenger has an absolute right to be carried, the conductor can have no right to require the production of a ticket or the payment of fare. It is more reasonable to hold that, for the time being, the passenger must bear the burden which results from his failure to have a proper ticket. It follows that the plaintiff was where he had no right to be, after his refusal to pay a fare, and that he might properly be ejected from the car. This decision is in accordance with the principle of the decisions in several other states, as shown by the cases cited for the defendant; and no case has been brought to our attention holding the contrary.”
Townsend v. New York, etc., R. Co., 56 N. Y. 295, 15 Am. Rep. 419, is a case somewhat different from this in its facts, but which strongly points out some of the practical reasons why a passenger can not recover for being ejected if he is without a proper ticket. In that case the plaintiff’s ticket had been wrongfully taken from him by the first conductor, and he was seeking to travel upon his explanation. The conductor notified him that he must pay his fare or leave the train. The court said: “If, after this notice, he waits for the application of force to remove him, he does so in his own wrong; he invites the use of the force necessary to remove him; and if no more is applied than is necessary to effect the object, he can neither *180recover against thé conductor or company therefor. This is the rule deducible from the analogies of the law. No one has a right to resort to force to compel the performance of a contract made with him by another. He must avail himself of the remedies the law provides in such case. This rule will prevent breaches of the peace instead of producing them; it, will leave the company responsible for the wrong done by its servant without aggravating it by a liability to pay thousands of dollars for .injuries received by an assault and battery, caused by the faithful efforts of its servants to enforce its lawful regulations.”
The element of the public interest is particularly brought out in Pennsylvania R. Co. v. Connell, 112 Ill. 295, 304, 306, 54 Am. Rep. 238. “Had appellee paid the fare demanded,” said the court in that case, “he might have sued the company and recovered for a breach of the contract. Piad he left the train when the conductor refused to receive the ticket and ordered him to leave, he might have sued and recovered for all damages sustained in consequence of the act of the conductor expelling him from the train. * * * A train crowded with passengers— often women and children — is no place for a quarrel or a fight between a conductor and a passenger, and it would be unwise, and dangerous to the traveling public, to adopt any rule which might encourage a resort to violence on a train of cars.”
A case containing somewhat the same course of reasoning is Southern, etc., R. Co. v. Rice, 38 Kan. 398, 403, 16 Pac. 817, 5 Am. St. 766, where it was said: “For any breach of contract or gross negligence on the part of the conductor or other employes of a railroad company, redress must be sought in the courts, rather than by the strong arm of the person who thinks himself about to be deprived of his rights. A passenger should not be permitted to invite a wrong and then complain of it.”
*181Where a traveler, who desired to stop en route, had asked for a stop-over check, but by mistake was given a trip check, it was held by the supreme court of Wisconsin that he was not entitled to ride upon another train upon presenting the trip check and making the explanation. In the course of the opinion it was said by the court: “Here, the plaintiff was not entitled, upon anything he showed the second conductor,' to ride on his train. That conductor, therefore, had the lawful right to eject him from it; nay, he was bound to do so, in obedience to the reasonable rules of the company, which required a passenger to obtain from his conductor a stop-over check when he desired to stop before reaching the place to which he had purchased a ticket; and the mistake or fault of the conductor in not giving him, on request, such a check would not give him a lawful right to ride on the second train, though he might recover damages against the company for the wrongful act of the first conductor.” Yorton v. Milwaukee, etc., R. Co., 54 Wis. 234, 11 N. W. 482, 41 Am. Rep. 23.
In Minnesota it was declared that, “If the passenger accepts a transfer plainly marked • for a particular line, he is not entitled to take a car of another and different line.” Pine v. St. Paul City R. Co., 50 Minn. 144, 148, 52 N. W. 392, 16 L. R. A. 347.
- McKay v. Ohio River R. Co., 34 W. Va. 65, 9 L. R. A. 132, 26 Am. St. 913, 11 S. E. 737, is a case which clearly indicates that the traveler can only maintain tort if he is ejected while rightfully upon the train in view of the company’s rule that a proper token must be produced. I therefore quote from the case: “Here the plaintiff had a ticket not good for the trip he was making, and declined to pay fare. He can not maintain an action for ejection or a threatened ejection from the train, but must look to the breach of contract, or the act of receiving money for the round trip and giving a wrong ticket. If the passenger have a ticket good for the passage, and the con*182ductor should refose to recognize it, and expel the passenger, the act would be a tort; and an action as for a tort could be maintained. Judge Cooley said in Hufford v. Grand Rapids, etc., R. Co., 53 Mich. 118, 18 N. W. 580, that all the judges of the Michigan supreme court agreed that if the ticket was apparently good the passenger need not leave the car. But here the ticket was very apparently not good. Therefore the motion of the defendant to reject plaintiff’s evidence as not sustaining his action should have been sustained, not overruled.”
In Peabody v. Oregon R., etc., Co., 21 Or. 121, 133, 26 Pac. 1053, 12 L. R. A. 823, where the plaintiff had produced ah unstamped ticket and sued for being ejected, Lord, J., speaking for that court, after a careful review of the authorities, said: “It seems to us that the weight of authority and reason as applicable to the facts as disclosed by the record, is that it is the duty of the passenger to pay his fare or quietly leave the train when requested, if he has not the proper ticket, and resort to his appropriate remedy for the damages he has sustained.”
In Mosher v. St. Louis, etc., R. Co., 127 U. S. 390, 396, 8 Sup. Ct. 1324, 32 L. Ed. 249, the ticket was a contract, rather than a token, but the language used and the authorities cited, show that the Supreme Court of the United States is in accord with the cases from which I have quoted. It was there said: “The conductor of the defendant’s train, upon the plaintiff’s presenting a ticket bearing no stamp of the agent at Hot Springs, had no authority to waive any condition of the contract, to dispense with the want of such stamp, to inquire into the previous circumstances, or to permit him to travel on the train. It would be inconsistent alike with the express terms of the contract of the parties, and with the proper performance of the duties of the conductor, in examining the tickets of other passengers, and in conducting his train with due regard to speed and safety, that he should undertake to determine, *183from oral statements of the passenger or other evidence, facts alleged to have taken place before the beginning of the return trip, and as to which the contract on the face of the ticket made the stamp of the agent of the Hot Springs Railroad Company at Hot Springs the only and conclusive proof. The necessary conclusion is that the plaintiff can not maintain this action against the defendant for the act of its conductor in putting him off the train. Townsend v. New YorK, etc., R. Co., 56 N. Y. 295; Shelton v. Lake Shore, etc., R. Co., 29 Ohio St. 214; Frederick v. Marquette, etc., R. Co., 37 Mich. 342; Bradshaw v. South Boston R. Co., 135 Mass. 407; Murdock v. Boston, etc., R. Co., 137 Mass. 293, 299; Louisville, etc., R. Co. v. Fleming, 14 Lea (Tenn.) 128.”
Space will not permit a further quotation from the cases, but I cite'-as in point upon the proposition that the ticket is conclusive for the time being: Dixon v. New England R. Co., 179 Mass. 242, 60 N. E. 581; New York, etc., R. Co. v. Bennett, 1 C. C. A. 544, 50 Fed. 496; Poulin v. Canadian Pac. R. Co., 3 C. C. A. 23, 52 Fed. 197, 17 L. R. A. 800; Chicago, etc., R. Co. v. Griffin, 68 Ill. 499; Thorp v. Concord R. Co., 61 Vt. 378, 17 Atl. 791; West Maryland R. Co. v. Stocksdale, 83 Md. 245, 34 Atl. 880; McGhee v. Reynolds, 117 Ala. 413, 23 South. 68; Woods v. Metropolitan St. R. Co., 48 Mo. App. 125.
I must, however, give space to a few quotations from text-writers. Mr. Hutchinson in his work on carriers (2d ed.), §580h, says: “So where the passenger, having paid fare to the point of destination, is, by the mistake of the company’s agent, furnished with a ticket which upon its face entitles him to a ride only to a point short 'of his destination, or the like, the passenger, having accepted the ticket, can not insist on riding upon that ticket beyond the point to which by its terms it entitles him. He must therefore pay fare to his destination or get off and continue his journey by other means, and, if he refuses, the conductor may eject him; *184but be may recover of tbe carrier damages for tbe injury he has sustained by reason of its breach of contract. Here, too, however, the action will be for the breach of the contract, and not for the ejection. And he may not aggravate his injury by resisting ejection under otherwise proper conditions. There is in these cases an element of negligence in the passenger in not seeing that he obtains and presents a ticket which is at least apparently regular.”
Judge Freeman, the learned annotator, in the course of a long note on carriers’ rules and tickets, says: “Although the cases on this subject are not entirely consistent with each other, the doctrine deducible from them, and the correct doctrine as it seems to us, is that when one has paid his fare to a certain destination on a railway, to the officer appointed by the company to receive it, the contract for carriage is complete, and he has a right to be carried in accordance with that contract, which can not be infringed or impaired by any rule of the company or by any mistake or default of its servants. If by a mistake of one of the officers of the company he is not furnished with a proper ticket or check evidencing his right to be carried to his destination, his right nevertheless remains, and if for want of the requisite evidence of that right, another servant of the company refuses to carry him without another payment of fare, the contract is broken, and he has a complete right of action for all damages resulting from such breach. But as the rule requiring him to show a proper ticket or to pay his fare, if demanded, is a reasonable one, he will not be justified in refusing compliance with it, and in remaining in the car until forcibly expelled, merely for the purpose of heaping up damages. He should either pay the fare demanded or quit the train; and in either case we think he ought to recover, as a part of his damages, reasonable compensation for the indignity put upon him by the company through the default of its servant. But he can add nothing to his claim by remaining in the car until *185forcibly ejected, for tbe rule under wbicb he is ejected, being reasonable, is a complete protection to tbe company and its servants against tbe recovery of any damages, directly or indirectly, for an assault made necessary by bis own obstinacy, if no more violence than is required for bis ejection is used. . Sucb a case stands upon an entirely different ground from that of a passenger who bas a proper ticket and is nevertheless expelled.” 41 Am. Dec. 415.
In Elliott, Bailroads, §1594, tbe authors say: “Whether tbe action be in contract or in tort, for tbe breach of a contract or for tbe violation of a duty imposed by law, tbe gist of tbe action can not well be tbe expulsion of tbe traveler, where there is no unnecessary force, in accordance-with tbe rules of tbe company, where be bas no ticket or evidence of bis right to transportation valid on its face or sucb as tbe rules reasonably require, and refuses to pay bis fare. Tbe wrong lies back of that, and it is well settled that a complaint proceeding upon one theory will not authorize a recovery upon another and entirely distinct and independent theory.”
I shall now examine the cases decided by this court that are cited by Jordan, J. Pittsburgh, etc., R. Co. v. Hennigh, 39 Ind. 509, is not in point, because tbe plaintiff in that case bad a proper ticket, of wbicb be was deprived by a conductor while en route. In Toledo, etc., R. Co. v. McDonough, 53 Ind. 289, tbe plaintiff bad, by tbe direction of tbe conductor of a mixed train on wbicb be was riding, taken passage, in tbe same direction, on a passenger-train, and bad presented a card, given him by said conductor, that bad written upon it tbe number of tbe station to wbicb tbe plaintiff was traveling and tbe initials of sucb conductor. It was held that tbe answers of tbe jury to interrogatories were not in conflict with tbe general verdict, as tbe jury might have found that tbe first conductor bad assured tbe plaintiff that tbe card was a sufficient ticket. Tbe case can be disposed of on tbe theory that tbe plaintiff *186had a token that purported to be sufficient. The cases of Lake Erie, etc., R. Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464, and Pennsylvania Co. v. Bray, 125 Ind. 229, are cases where travelers were seeking to return on going coupons, the return coupons having been wrongfully detached. In the Fix case, the court distinguished the cases of Chicago, etc., R. Co. v. Griffin, 68 Ill. 499, Frederick v. Marquette, etc., R. Co., 37 Mich 342, 26 Am. Rep. 531, and Townsend v. New York, etc., R. Co., 56 N. Y. 295, 15 Am. Rep. 419, as cases where the ticket agent had given the passenger a ticket to the wrong station, and stated that in the case before the court the passenger “was not without evidence of his right to transportation.” In the Bray case, which was decided by a divided court, it was said that as the rule was a mere technical one, the first conductor had a right to and did waive it by taking up the return coupon. There would be something of reason in the position that the possession of the going coupon was prima facie evidence of a mistake, since it would appear that the company had not discharged its entire obligation to the passenger. There would be still more of reason in the position that the conduct of the first conductor was calculated to lead the traveler to suppose that it was a matter of indifference to the company on which coupon he journeyed, thereby leading him to contest the right to eject him. That the latter view must have to some extent influenced the court is evidenced by the fact that in the intermediate case of Godfrey v. Ohio, etc., R. Co., 116 Ind. 30, it was held that a person who entered a railroad train with knowledge that he had the wrong coupon of a round-trip ticket, and refused to pay fare, was properly ejected. In disposing of the case the court said: “Railroad companies have the undoubted right to make reasonable regulations for the conduct of their business. It is certainly a reasonable requirement that a passenger, having the opportunity, should purchase his ticket to the place of his destination, and not in the oppo*187site direction. To compel railroad companies to receive unused tickets, without regard to the direction which the holder wishes to go, would introduce inextricable confusion ■ into their business, and be of no benefit to any person possessed of sufficient intelligence to go upon a train.” I' am not prepared to say that the cases of Lake Erie, etc., R. Co. v. Fix, supra, and Pennsylvania Co. v. Bray, supra, were decided correctly. However, the Bray case rests largely on the Eix case, and I contend that the latter case shall not now be treated as a precedent for the case at bar, since the Eix case expressly distinguishes the class of cases to which this one belongs.
As to the cases cited by Jordan, J., from without this State: In New York, etc., R. Co. v. Winters, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71, Murdock v. Boston, etc., R. Co., 137 Mass. 293, 50 Am. Rep. 307, Ray v. Courtland, etc., Traction Co., 46 N. Y. Supp. 521, Ellsworth v. Chicago, etc., R. Co., 95 Iowa 98, 63 N. W. 584, 29 L. R. A. 173, Philadelphia, etc., R. Co. v. Rice, 64 Md. 63, 21 Atl. 97, and Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 63, 31 N. W. 544, 8 Am. St. 859, the tickets were good on their face. Of the latter case it was said in Heffron v. Detroit City R. Co., 92 Mich. 406, 411, 52 N. W. 802, 16 L. R. A. 345, 31 Am. St. 601: “The case of Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 631, is distinguishable in this: There the ticket was one purporting, on its face, to cover the distance to be traveled by Hufford. He paid the usual fare between the two places, and the ticket contained no printed exceptions or conditions restricting Hufford from using it at the time he presented it to the conductor. Its infirmity, if any, was not open to Hufford’s plain observation, so that he was informed on its face that it was not good.” In Trice v. Chesapeake, etc., R. Co., 40 W. Va. 271, 21 S. E. 1022, the court expressly affirmed the ease of McKay v. Ohio River R. Co., 34 W. Va. 65, 11 S. E. 737, 9 *188L. R. A. 132, 26 Am. St. 913, the court adding that “the passenger could not ask passage where the ticket did not carry him.” Jenkins v. Brooklyn Heights R. Co., 51 N. Y. Supp. 216, turned on the ruling that a regulation was unreasonable. Eddy v. Syracuse, etc., R. Co., 63 N. Y. Supp. 645, while it affirms the right to sue in tort, does not have in. it the element of an assault and battery, as the plaintiff voluntarily left the car. The same may be said of Yorton v. Milwaukee, etc., R. Co., 62 Wis. 367, 21 N. W. 516, 23 N. W. 401. In Appleby v. St. Paul City R. Co., 54 Minn. 169, 55 N. W. 1117, 40 Am. St. 308, the facts were that the street car on which the plaintiff was riding was taken off, the conductor disappeared, without giving plaintiff a transfer, and an agent of the company directed him to take the next car. The ease was decided on the ground that, as it was the duty of the company to provide for such an emergency, the plaintiff had a right to rely on the direction of such agent. The case of Kansas City, etc., R. Co. v. Riley, 68 Miss. 765, 9 South. 443, 13 L. R. A. 38, 24 Am. St. 309, was decided upon facts analogous to the case of Lake Erie, etc., R. Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464, and can not be said to be in point either way. In Laird v. Pittsburg Traction Co., 166 Pa. St. 4, 31 Atl. 51, the ticket was ambiguous. ■ As shown above, there are some cases affirming the right to sue in tort that do not recognize the right to resist the conductor. As to the latter proposition, the Ninth Circuit Court of Appeals, and the courts of Maine, Texas, Arkansas, Georgia, Washington, and Tennessee, of the eases cited by Jordan, J., support his view, while, to recapitulate, the Supreme Court of the United States, the Sixth Circuit Court of Appeals, and the courts of New York, Massachusetts, West Virginia, Michigan, Illinois, Vermont, Maryland, Missouri, Kansas, Minnesota, Oregon, and Alabama uphold the position that there can be no recovery for the ejection. I admit, that the question as to the right *189to sue in tort is more in doubt upon the authorities, but in my judgment the suit should be on the contract. I think that the judgment should be reversed, with a direction to the court below to sustain the demurrer to the complaint.
Monks, J., concurs in the above opinion.