The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-06-18
RIGHTS OF CARRIERS.
Obstinate Passengers May Be
Elected Anywhere.
AN IMPORTANT LEGAL DECISION.
Judge Hanford Holds Carriers Liable
Only for Injuries Necessarily Re-
sulting From Wrongful Acts.


rights OF common carriers to eject passengers
Tor non-payment of fare. recently rendered
by Judge Hanford in the United States circuit
court In the case of Charles Magee against the
oregon Railway and Navigation Company.
Magee sued for $4,000 damages for being
ioreloly elected from the steamer Hassalo and
landed In the woods because he was trying to
ride on worthless ticket and refused to nav
fare Alfred s. Black and E. B. Leaning APP
peared Tor plaintiff and Colonel J. c. Hanes
and J. NJ. Davis for defendant
syllabus by the court was as follows
rirst-ln a suit against carrier of passengers
TO recover damages for the wrongful election
OF passenger who claimed 10 have purchased
ticket Tor his passage and to have rendered it
before being elected. the plaintiff was allowed
20 amend ms complaint and to plead, either:
|. Inc contract and its breach, and claim only
the damages ordinarily recoverable for breach
OF sucn contract; or, 2, The tort, as the graya-
men OF his case; or, 8, The contract, the breach
OF III, and any circumstances of aggravation in
the manner OF the breach causing additional
INJURY as ground for claiming special dam
ages In an amended complaint the third
pan was adopted; on the trial the plaintiff
tailed TO prove contract, and, on motion for
non-suit, held that failure TO prove the con-
tract alleged was equivalent to total failure
OF proof ana the motion should be granted
Seeond-N here the officers of a passenger train
or vessel do not act wsntonly or maliciously,
or unnecessarily resort to violence, or use ex-
cessiye force in ejecting a traveller for non
payment of fare, though wrongfully exaeted
their employers are not liable for injuries
other than such as necessarily result from the
wrongful exaction.
Third-A person travelling on passenger boat
who neither produces q ticket good for the
trip nor pays fare when called upon, and who
after being informed that II he does not pay
his fare he will be put ashore, and is allowed
reasonable time to deliberate, and who then
suffers himself to be landed ON shore to
which be is stranger. or at point distant
from any habitation, during a storm in the
night rather than pay 80 cents to complete his
journey on the vessel, although possessed of
ample means to pay, is without any just cause
OF complaint, and cannot recover damages in
an action against the owner of the vessel,
there being no statute forbdding the landing
OF passenger at such place.
In an action to recover damages for being
forcibly elected from a passenger STEAMBOAT
upon the trial before the court and jury, after
the introduction OF evidence on the part of the
pialntln the defendant moved the court for
Judgment OF non-suit on the ground that the
plaintiff had failed to prove his case.
OPINION OF THE COURT.
HANFoRD, J. (Orally)
have no doubt whatever that the defendant
is entitled to have this motion granted. The
original complaint filed in the case contained
two counts, the first pleading cause of action
en- eoRtractu and claiming damages for breach of
owned and operated by the defendant
state, evidenced by a ticket for such
paS6dRe purchased anu pd1u LOT Dy plAlQIlD. ana
in the second court pleading cause of action
er detict0, and claiming damages for tort pure
and simple. Both causes of action. however,
depending upon the same facts and being ex-
actly the same transaction stated in two differ
ent ways. Upon motion TO make the complaint
definite and certain so as to ascertain what the
plaintiff claimed and what he relied on, for the
purpose of simplifying the framing OF issues,
and to enable the parties and the court to know
beforehand what rules of law would be appliea-
BILE in the trial and decision of the case, | held
%IxnNr af
practice here, to plead in that way, to have
complaint containing repetitions and aiming in
different directions. l stated, however, that the
plaintiff had right, in my opinion, to elect
whether to proceed in this case upon the con-
tract, relying upon the contract by itself, and
claim only such damages as would be recoverable
for breach of the contract, or he might, in the
second place, choose to say nothing about the
contract and recover damages for the tort,
treating that as the gravamen of his case; or he
might, in the third place, In one pleading, and
setting it out as one cause of action, plead his
contract, plead the breach of it, and for the pur-
pose OF enhancing damages plead the special
facts connected with the breach OF the contract,
as the ground for the recovery of special
damages.
An amended complaint was filed by which it
appears that the plaintiff chose the third method
OF stating his case, and the case now, upon the
amended complaint, may be termed an action to
recover damages Tor the tortions breach of
contract The contract, therefore, is the founda
ton of the case, and upon that theory the trial
has proceeded. All the testimony offered has
been either admitted or rejected on legal
grounds The plaintiff has rested, and as the
case is now submitted to the court, there is no
contract-the foundation of the case is gone
The code of this state, which governs the prac
tice in cases of this kind recognizes distinction
between causes of action or deiiet0 and causes of
action er contrGctu and necessarily there is diff
ference The rules of law to be applied in the
determination of the case entirely distinct,
and therefore. notwithstanding the code has
abolished the common law forms OF action and
the refnements growing out of the observance
strictly of forms, there Is difference In the
law, difference In the rights oil me parties 10
cases founded on contracts from those which
are founded on torts. The code provides that
mere variance in the proof from the allegations
of complaint are not TO be deemed material
unless the adverse party has been misled; and
il proyides further, in section 107. that where
the proof does not simply show different state
of facts, but fails to prove the cause OF action
set ont in it's entire scope and meaning, that
there is not a mere variance, but failure OF
proof
from the facts alleged in the complaint, but, as
I have said the entire foundation OF this case Is
gone because there is total failure to prove
contract II is frankly admitted by the plain
tiff attorney that there IS no contract proven
i'm This case and no right of recovery. based on
the contract is claimed in the argument made
in opposition TO this motion. So think on that
ground judgment OF non-suit is proper In the
will say further, however. that the assump-
tion that with proper pleadings this plaintlH
would be entitled TO recover any aalnagJs .or
against the defendant company IN eject
ing him from the steamer Hassaio
at an improper place. rho co sta,e ~
weather. is, in my opinion, unwarranted. There
being no statute in this stctH iorbIdding the
election of person from vessel or railroad
al any Mace other than regular landing place
ar station I cannot assent to the doctrine that
common carrier is guilty of such wrong as
entities the injured party 70 recover damages
for the mere fact of ejecting passenger, or one
who is seeking TO travel by means OF steam
boat or railroad at place other than regular
landing Mace or station. Certainly the law
would not sanction the use OF unnecessary
fnrca even in dealing with an intruder or
tresnasser And even If the circumstance OF the
intrusion or the trespass involved an attempt az
crime it would not sanction any wshtonness
in dealing with the offender. The master
nj n shin at sea has no right TO take a stowaway
found on his vessel and heave him overheard Ia
midocean. But the prlneip,e; whien governs M
cases affecting the rights OF persons ana their
property. The owner OF q mouse, when ne uses
as his dwelling and inhabits with ms family,
has a right 10 the qu1et, exclusive anu uhdls-
turt-.d POSSESSION thereof. he can exclude an
intruder. but he has no lght 70 XIII MN unless
il is necessary 10 do so. ne iute VI hecessi! -
the rule of law, limiting the rlgnt 10 use iofce.
Ali that the law forhids is that there shall be no
wantouness or malicious conduci on the part o.
common carriers, or unnecessary INJURY zone IN
removing persons who have no Iight 70 'Fasel oy
,neir eonyevances | think, too, that even In
cases where a person claiming right
~ rrareI founded upon a contract. where he
- ~ in the right. is required TO act with common
prudence, aud to submit TO the exaetion,
even though wrongful, OF the ofheers IN charge
~ staaTr tsnats and trains when they were able
to do so. and rely upon an appeal 70 the superior
officers OF those who thus treat them wrontuily
for the redress of their wrongs, anu II they iali
.yes II nv such efort then 10 60 to.fhe courts OF
the country for redress of any wrong or iInposl-
ti0n which they may have suffered during
journey, so that person who Is ao.s - pa . Us
fre t,yics should pay twice If IL 10 exacIed rather