CARRIERS — PASSENGERS.

[Lucas Circuit Court,

January 21, 1901.]

Haynes, Parker and Hull, JJ.

#### John Wilt v. Wabash Railroad Company.

1. Right of Passenger to Recover for Being Ejected Prom Train.

A passenger -who lias purchased transportation between two places, and received a contract entitling him to a return ticket upon demand at the place of destination, which was refused when demanded, cannot recover, upon attempting to return without a ticket, for being ejected from the company’s train. He can only recover for breach of contract to furnish the return ticket.

2. Same — Measure of Damages.

In such case, unless special damages are alleged and proved, the measure of damages is the amount of money which the passenger actually loses and is compelled to expend on account of the failure of the railroad company to furnish him the return transportation upon his ticket as it had agreed to do.

8. Same — Pleading Loss of Time.

In such case damages sustained on account of time lost cannot be recovered unless specially pleaded, and a general statement of plaintiff in his testias to value of time lost is insufficient.

*James & Beverstock,*for plaintiff in error.

*Smith & Beckwith,*for defendant in error.

Heard on Error.

Hull, J.

This action is brought by the plaintiff, John Wilt, to reverse the judgment of the court of common pleas. Wilt recovered a verdict for $22.48 Against the defendant, on which judgment was rendered, he having brought suit for $10,000 against the railroad company. The action below was based upon failure of the railroad company to provide plaintiff with a return ticket, and upon the action of its conductor in putting him off a train. The plaintiff, in May, 1899, bought a ticket at North Baltimore, Ohio, for Joplin, Missouri, paying therefor the sum of $22.35. This ticket and contract entitled him, at Chicago, 111., to an exchange of tickets for Kansas City, by way of the Wabash railroad and over a ■connecting line from Kansas City to Joplin, said connecting line being the Kansas City, Pittsburg & Gulf Railroad, and further entitled him to a return ticket to Chicago and North Baltimore, Ohio, the contract requiring him to demand his return ticket at Joplin, Missouri, not less than three days nor more than twenty-one days from the date of purchase. He arrived at Chicago on May 17, and was given his transportation or the *“*going portion ” of his ticket as it was called, to Joplin, Missouri, the understanding being that his return portion would be forwarded to the agent at Joplin, Mo., and furnish him there upon his presenting the “ exchange coupon.” After spending a few days at Joplin, more than three days having elapsed, as the contract required, and not more than twenty-one days, he presented himself to the company’s agent at that point and asked for his return ticket, and he was told then that the tickets had not come, or, at least, they were not given to him. He waited a couple of days and then presented himself again and demanded *590his tickets and was told again that the tickets had not come. He then demanded a return ticket, which was not furnished to him, and thereupon, with nothing but the portion of the ticket which he had left, the “going portion,” and with the exchange coupon,.he boarded a regular passenger train, at Joplin, Mo., and started for home. The conductor of the train asked him for his ticket and he explained the state of affairs to him and the conductor demanded that he pay his fare from Joplin to Kansas City. Wilt thereupon refused to pay and was put off the train, no more force being used, as it appears, than was necessary to effect this. This incident occurred at Gulfton, and there being no telegraph office there, he went to a station called Carl Junction, and there telegraphed for funds and purchased a ticket for Kansas City, paying thereior $3.90. At Kansas City he bought a ticket for home, lor which he gave $12.50, and in addition to that be incurred expenses on account of this delay amounting to $5.00, making in all $21.40, expended. Defendant offered to confess judgment for $50.00 and costs, before trial, and this was refused.

The case came on for trial before a court and jury in the common pleas and the judge of that court held that the plaintiff’s cause of action was for breach of contract and that the measure of damages was the amount of money that he had actually lost and been compelled to expend on account of the failure of the railroad company to furnish him this return transportation upon his ticket, as it had agreed to do, and that he could not recover any damages for being put off the train, and holding further that he could not recover for any loss of time — plaintiff having claimed that he was detained three days — for the reason that that had not been properly pleaded in the petition, there being no allegation of special damages on account of his delay in Missouri; his time being still his own whether in Missouri or elsewhere, the court held that he was not entitled to recover anything on that account. The only testimony upon that point was Wilt’s own testimony, in which he stated that the three days were worth $100 to him ; but there was no statement of any damage to his business and no statement as to what the real value of his time was. That testimony was finally ruled out and the court instructed the jury that his damages would be confined to the sums- mentioned, which amounted to $21.40 and that the jury could not go beyond that, and .a verdict was returned for that amount, with interest, making $22.48.

The real question in the case, and practically the only question, is as to the measure of damages. In our judgment, the ruling of the court of common pleas was correct. When the railroad company failed to deliver to Wilt his ticket, as they had agreed to do at Joplin, Mo., for his return passage, his cause of action arose, whatever the reason for such failure was, and it was a breach of the contract. The reason assigned by the railroad company for failure to deliver the ticket is, that the tickets had been stolen or lost in the mail on their way to Joplin. The contract having been broken, one of the natural and necessary results was that he was required and compelled to purchase a ticket for his return, and, if he had had the money in his pocket, he could have at once purchased another ticket and returned thereon. He was allowed, besides to the value of the ticket, additional expense which he incurred. Having no ticket, he had no right to get onto a regular passenger train or any train of the railroad company and demand passage. The conductor could not settle this dispute between him and the railroad *591company or pass upon this question of breach of contract. According to the rules of the railroad company, a man who rode upon its trains either had to have a ticket or pay cash fare, and in default of either, get off, and that has been held by the Supreme Court of this state to be a reasonable rule. He could not, by getting on one train alter another and being put off, thus create causes of action' against the railroad company. The railroad company had broken its contract with him in failing to provide him with his return ticket, as they had agreed, and whatever loss ensued, on account of that breach of contract, he was entitled to recover, but he could not ride without a ticket or paying his fare. This position is fully sustained by the authorities in our own state and the law seems to be throughly established. We will refer to two or three cases that have been cited by counsel for defendant in error in their brief: In Crawford v. Railroad Co., 26 Ohio St., 580, it was held in the syllabus:

> “ A railroad company has a right to prescribe reasonable rules for the government of its employees in the conduct of its business upon its trains, and passengers should conform to such rules.

> ‘‘ A rule requiring a conductor to eject from the train a passenger who refuses to produce a ticket or pay his fare on demand, is a reasonable one, and the purchaser of a non-transferable commutation ticket, who has lost it, and refuses, on account of such loss, to pay his fare upon a train, falls within the rule, and cannot maintain an action of tort against the company to recover damages for being ejectedby the conductor for a non-compliance with it.”

In another case, Shelton v. Railway Co., 29 Ohio St., 214, it was held, in the syllabus, as follows :

> “ A railway company has the right to require passengers to pay fare, and a rule directing its conductors to remove from the cars those who refuse to comply with the requirement is reasonable. ”

> “The fact that a ticket has been purchased by a passenger, which was afterward wrongfully taken up by a conductor of one of the defendant’s trains, will not relieve the passenger from the duty of providing himself with a ticket, or paying fare on another train of the defendant in which he may be a passenger.”

> *“*In such case, the right of action of the passenger would be for the wrongful taking up of the ticket, and not for having been removed from a train by another conductor for refusing to pay fare.”

And in the case of Pennsylvania Company v. Hine, 41 Ohio St., 276, a similar question was passed upon. The case went to the Supreme Court from this county. The plaintiff in that case bought a ticket from Washington to Toledo, which entitled him to transportation at any time up to midnight of March 10, 1881. He got on the train in Washington in time to have arrived in Toledo before his ticket expired; but the train upon which he rode from Washington to Pittsburg was late, through no fault of his, and reached Pittsburg too late for him to take the train which he should have taken out of Pittsburg. He got on for Toledo another train without a proper ticket and was put off. The Supreme Court held:

> “ The removal of H. from the train was a proper exercise by the conductor of the right of defendant, and for that removal it was not liable in damages. If the defendant was liable for breach of contract, because the train east of Pittsburg was so delayed that H. could not enter the train upon which his ticket gave him a right to ride, that lia*592bility did not confer upon H. a right to ride upon the train from" which he was removed.”

It is clear that the plaintiff, Wilt, had no cause of action against the railroad company except for breach of contract and was only entitled to receive the actual expense that he incurred on account of his ticket not being furnished to him; and was not entitled to any damages for being removed from the train, therefore the judgment of the court of common pleas will be affirmed.