Concurring Opinion.
Davis, C. J.I concur in the result, but not in all the reasoning of Judge Boss.
In their brief, counsel for appellant say this is an action to recover “damages for alleged unlawful expulsion from a passenger train.”
A trial by a jury resulted in a judgment in favor of appellee, for $500.00.
The only error relied on in this court, is the overruling of appellant’s motion for a new trial.
Counsel for appellant say: “The general scope and character of the complaint is that of tort.” The allegations, counsel for appellant insist, “clearly indicate the intention to recover for a wrongful expulsion from the train.” The italicizing is our own.
We agree with counsel for appellant, in their position as to the theory of the complaint. With this view of the complaint, counsel for appellant contend that the court erred in giving the seventh and ninth instructions.
In this connection, we refer briefly to other instructions of the court. In the first instruction the court said to the jury: “This is an action by the plaintiff, against the defendant, to recover damages for the alleged expulsion of the plaintiff from the defendant’s train of cars.”
After recapitulating the facts alleged in the complaint, the court, in the second instruction, said to the jury, that “if it appears, from a preponderance of the *376evidence, that the plaintiff was expelled from' said train, as averred in the complaint, and that the other material averments of the complaint have been proven by a like preponderance of the evidence, your verdict should be for the plaintiff.”
The preliminary part of the seventh instruction is awkwardly drawn. The gist of this instruction is in the last part thereof. The appellee’s right to recover is, as we have seen, based upon his wrongful expulsion from the train, growing out of the act of the agent in selling him an expired excursion ticket. There was no material conflict in the evidence. The facts alleged in the complaint are fully established by uncontradicted evidence.
It is undoubtedly true, that the first wrong of appellant was the act of the agent in furnishing appellee an expired excursion ticket, and that the expulsion by the conductor was in consequence of that wrong. In this sense, appellee’s right to recover is based upon the wrong of the ticket agent. Moreover, it may be conceded that the conductor was not guilty of any personal wrong, as stated in the first part of the seventh instruction; because, as between himself and appellant, its rules and regulations, we may assume, justified the act, but as between himself, as the company’s representative, and appellee a different question is presented by the concluding part of the instruction.
The contention of counsel for appellant is, that the seventh instruction is incorrect and misleading, for the reason that the ticket was the only evidence of the right to be carried upon the train, as between himself and the conductor, and that “he had no enforceable right to be carried on the ticket as between himself and the appellant.”
The material question, therefore, for our consideration in this connection is, whether, in the light of the *377evidence and the averments in the complaint, the court erred in saying to the jury:
“If, however, the plaintiff received the expired excursion ticket through the alleged wrong of the ticket-seller at Frankfort, under such circumstances that plaintiff, in the exercise of reasonable and ordinary care, was justified in believing it was good, and he took passage upon the train in good faith, the defendant would be liable for damages occasioned to plaintiff by his expulsion from the train by the conductor, if a full explanation was made by plaintiff, to the conductor, of the facts and circumstances constituting the alleged wrong connected with the plaintiff’s purchase of the ticket.”
The preliminary part of the instruction is explained and qualified by the part we have just read. In the first part of the instruction, the theory of the case is not clearly and fully stated, but if the law applicable to the case is correctly stated in that part of the instruction last quoted, the preliminary statements therein, inconsistent with and contradictory of the propositions of law contained in the conclusions, were harmless as to appellant, because the mistake, if any, is evidently in favor of appellant.
The first part of the instruction, standing alone and unexplained, is more favorable to appellant than the part herein last copied. If the law applicable to the case is correctly stated in that part of the instruction now under consideration, what is said in the preliminary part of the instruction standing alone, is wrong, because it is too favorable to appellant, and could not have misled the, jury as against appellant.
It is conceded that appellee paid the agent of appellant for a ticket from Frankfort, to Kokomo, and that the agent delivered to appellee a ticket which he then said would carry him on the train on which he *378was about to take passage-, from Frankfort to Kokomo. Appellee noticed, when the ticket was delivered to him, that it was an excursion ticket “from Frankfort to Kokomo,” and called the attention of the agent to that fact, and the agent then said to him, “that will carry you.” Without going to a gas jet, appellee could not read the condition, among others on the ticket, “that it will be good for return passage on regular trains, regularly scheduled to stop at return destination, until October 28, 1893.” The appellee paid the agent the regular full price for the ticket, and relied on the statement of the agent that it would carry him, and accepted, it in good faith.
Where a passenger calls for and pays for a ticket from one station on the railroad to another, but is, by mistake of the company’s agent, given a ticket which has expired, with which the passenger, without fault, boards the train, believing he has the proper ticket, is he entitled to ride thereon the distance for which he has paid, upon making proper explanations to the conductor? This question was answered in the affirmative in Evansville, etc., R. R. Co. v. Cates, 14 Ind. App. 172.
If the conductor refuses to heed the statements of the passenger, and ejects him from the train, is his expulsion from the train wrongful, and is the passenger entitled to recover against the company for the consequences? This question was also answered by the court in the affirmative in the case last cited.
• In this connection we quote from the opinion of Judge Gavin in that case as follows:
“In the case last referred to (the Beckett case) it is adjudged that one boarding a train without a ticket, by reason of the company’s negligent failure to afford him an opportunity to buy one, cannot be required to pay an excess over the ticket fare-, but is en*379titled to be carried at the regular lowest ticket rate, and the conductor must listen to his explanation of the circumstances, or the company must respond if he eject the passenger. It was there said: ‘The first wrong was by appellant, in failing to furnish appellee a ticket, upon his reasonable demand therefor, and it must answer for all the consequences naturally following from that wrong. The company cannot be permitted to justify its own wrongful conduct by the fact that its servants were acting according to its directions or rules.
“ ‘Although the conductor may be acting strictly according to the rules of the company, and doing that, and only that, which, under its rules, he is authorized to do, it by no means follows that his conduct is rightful towards the passenger. Between himself and the company its rules will justify the conductor, but not as between himself, as the company’s representative, and the passenger.’ In Chicago, etc., R. R. Co. v. Conley, 6 Ind. App. 9 (16), it was said by this court: ‘It is true, that where the passenger has no ticket, or has a ticket so imperfect that it furnishes no sufficient evidence of being genuine and the conductor has nothing to determine the passenger’s rights from, except his explanation, he is not bound to take the same as true, unless his failure to have a ticket or a perfect ticket was due to the company’s fault.’ Again, in Chicago, etc., R. R. Co. v. Ault, 10 Ind. App. 661, the court said, through Eeinhard, J.: ‘If the appellee really purchased and paid for a first-class passenger ticket, with' a return coupon attached, at the time he testified he purchased it, and presented the same to the conductor, it would strongly tend to prove that his expulsion from the train was wrongful, no matter what the form or wording of the ticket may have been.’ Carrying out the *380principles underlying these decisions, we do' not see how it is possible to escape the conclusion that where a passenger calls for and pays for a ticket to one place, but is, by the mistake of the company’s agent, given a ticket different from that desired, with which he, without fault, boards the train, believing he has the proper ticket, he is entitled to ride thereon the distance for which he has paid, upon making proper explanation; and, if the conductor refuses to heed his statements, the company must respond. He has paid for his ride, and presented, in good faith, the only evidence given by the company of his right to make the journey. If the company has not furnished him the proper token to convey the fact to the mind of its conductor, the blame and the consequences thereof must both rest upon the company, which is in fault, rather than upon the passenger, who is not. In thus holding, we are in harmony with the views of our Supreme Court, as expressed in Godfrey v. Ohio, etc., R. W. Co., 116 Ind. 30, wherein it was decided that where a passenger received from the station agent the wrong ticket, being the reverse of that for which he asked, he could not ride thereon four months after his discovery of the mistake, but Judge Mitchell says: ‘It is quite probable, if the plaintiff, without having had ample opportunity to correct the mistake after discovering it, had offered the ticket on the first trip, and had been refused passage, he would have been entitled to recover for any injury in case he had been ejected, after having done all he reasonably could do to rectify the mistake. The case would then have fallen within the principles declared in Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381, and cases of that class.’ ” See also, Cleveland, etc., R. W. Co. v. Beckett, 11 Ind. App. 547; Pittsburgh, etc., R. W. Co. v. Berryman, 11 *381Ind. App. 640; Louisville, etc., R. W. Co. v. Goben, 15 Ind. App. 123.
In our opinion, that part of the instruction to which we have been considering the objection made by counsel for appellant, correctly states the law.
It is next insisted that the statement in the last sentence of the seventh instruction, that appellee was not bound to pay his fare a second time, and. that his refusal to do so could not be considered in mitigation of damages, is a misstatement of the law. The contention is that, as he had the money with which he could have paid his fare, it was his duty to pay it to the conductor, and thereby have avoided the damages, occasioned by the act of the agent in selling him the ticket in question and his expulsion from the train by the conductor.
In giving this part of the instruction there was no error. Lake Erie, etc., R. R. Co. v. Arnold, 8 Ind. App. 297.
In the last case cited, Judge Lotz said: “Appellant chose to stand upon what it conceived to be its strict legal rights. It can not now be heard to complain if the appellee chose to do the same. It comes with an ill grace for the appellant, after it has pushed what it believed to be its rights to the last extremity, to say that because it offered to carry appellee if he would pay his fare, the damages ought to be mitigated.” See, also, Lake Erie, etc., R. W. Co. v. Fix, supra.
Counsel for appellant insist that, in “an action for a wrongful expulsion, no unnecessary force being used,” the appellee was not entitled to recover anything; and, therefore, that the court erred in giving the ninth instruction. In our opinion, under the authorities, the ninth instruction, relative to the measure of damages, correctly states the law applicable to the issues *382and the evidence. See Louisville, etc., R. W. Co. v. Goben, supra, and authorities there cited.
Filed May 26, 1896.All concur in affirmance of the judgment.
Gavin, J., concurs in the law as stated by Davis, O. J.