The judgment must be reversed, and the cause remanded for a new trial.

Passenger may be compelled to exhibit Ticket.-The company may by its regulations compel a passenger to exhibit his ticket when asked so to do. Ripley v. New Jersey, etc., Trans. Co., 31 N. J. L. 388; Bennett v. Railroad Co., 7 Phila. 11; Douns v. New York, etc., R. Co., 36 Conn. 287; Woodard v. Eastern Counties R. Co., 30 L. J. (M. C.) 136; Lane v. East Tenn., etc., R. Co., 2 Am. & Eng. R. R. Cas. 278. But see Maples v. New York, etc., R. Co., 38 Conn. 557.

Passenger being expelled for non-payment of Fare cannot continue to ride on tender of Fare.--A person who refuses to pay his fare and is being put off in consequence, acquires no right by the tender of his fare to continue as a passenger. Stone v. Chicago, etc., R. Co., 47 Iowa, 82; State v. Campbell, 32 N. J. L. 309; People v. Jillson, 3 Park Cr. Cas. 234; O'Brien v. Boston, etc., R. Co., 15 Gray, 20; Hibbard v. New York, etc., R. Co., 15 N. Y. 455; Fulton v. Grand Trunk R. Co., 17 Upp. Can. Q. B. 428; Hoffbauer v. D. & N. R. R. Co., 52 Iowa, 342; O'Brien v. N. Y. C. & H. R. R. Co., 1 Am. & Eng. R. R. Cas. 259; Skillman v. Cincinnati, etc., R. R. Co., 13 Am & Eng. R. R. Cas. 31.

But see Garrett v. Louisville & N. R. Co.. 3 Am. & Eng. R. R. Cas. 416.

CURL

v.

CHICAGO, R. I. AND P. RY. Co.

(Advance Case. April 25, 1884.)

When a passenger failing to pay his fare is expelled from the train by the conductor before he has time to borrow the amount from a fellow-passenger, he is not entitled to recover exemplary damages from the railroad company unless there was malice on the part of the conductor in ejecting him.

APPEAL from Washington. Opinion upon rehearing. See s. c., 11 Am. & Eng. R. R. Cas. 85.

M. A. Low for appellant.

Wilson & Kellogg for appellee.

BECK, J.-A rehearing having been allowed in this case, it has been again argued. Upon a reconsideration of the whole case, and all arguments submitted therein, we remain satisfied with the conclusions announced in the foregoing opinion upon all questions discussed and decided therein. They are so fully and clearly presented that nothing more need be said in their support. However, one objection urged by counsel for defendant escaped our attention in our former consideration of the case. We are satisfied that it was well taken, and that thereon the judgment of the court below ought to be reversed. We will proceed to consider it.

The petition alleges that the conductor "maliciously, unlawfully, brutally, forcibly, wrongfully, and violently" ejected plaintiff from the car. As applicable to the issue joined upon this allegation of the petition, the court gave an instruction in the following language: "(10) If you find for the plaintiff, and that the conductor had no right to eject him from the train, and the evidence satisfies you that the plaintiff suffered pain of body, or was put to trouble and inconvenience in travelling to a place of shelter, in conse quence of the ejectment, you should allow him as damages such. sum as in your sound discretion will fully and fairly compensate him therefor. And if you find that the conductor wilfully used unnecessary force in ejecting the plaintiff from the train, you may allow reasonable punitive damages, such as in your sound discretion is commensurate with the wrong, and will tend to prevent the recurrence of those like it." This instruction is erroneous in that it does not make the recovery of exemplary damages dependent upon malice of the wrong-doer. It holds that the wilful use of unnec essary force is a ground for allowing exemplary damages. An act wilfully done may not be accompanied by malice; that is, a spirit of enmity, malevolence, or ill-will, with a desire to harm, and a disposition to injure. One may wilfully do an act with innocent purposes; that is, he may obstinately, stubbornly, and with design, act lawfully and with good intentions. The instruction fails to present the thought that the element of malice must accompany acts of the kind complained of in the petition, otherwise the injured person cannot recover exemplary damages. This doctrine is recognized in numerous decisions of this court. See Fitzgerald v. C., R. I. & P. Ry. Co., 50 Iowa, 79; Jones v. Marshall, 56 Iowa, 739; Brown v. Allen, 35 Iowa, 306.

For the error found in the instruction quoted above the judgment of the Circuit Court must be reversed.

WALKER

v.

WABASH, etc., R. Co.

(Advance Case, St. Louis Court of Appeals.

April 1, 1884.)

Where a person purchases of a railway company a passage ticket from one point to another point, and enters upon the performance of the journey, the company is obliged to carry him only in the event that he continues upon its vehicle until the transit is ended; a fortiori he cannot compel the carrier to allow him to leave its train whenever he may choose, and to introduce a third person who is to perform the rest of the journey in his place.

Where a railroad conductor gives to a passenger who has purchased a

limited passage ticket from A to C, a check, upon which were the words "continuous passage," as well as punches and marks, made in accordance with rules which are supposed to be understood by the servants of the company alone, and for their instruction, and at B he sells such check to a broker, who sold it to the plaintiff, the plaintiff thereby acquired no right to use such check for the balance of the journey in the place of him who originally received it.

APPEAL from the St. Louis Circuit Court.

THOMPSON, J.-The plaintiff desiring to go from St. Louis to Chicago, thought he would save a little money by buying a ticket of a broker. So he went to the office of Mr. Manget, on the corner of Fifth and Chestnut streets, and purchased a train check, which with the punches in it presented the following appearance:

(Here follows the check, which has marks punched out indicating to the conductors that it was good for a continuous passage only from Council Bluffs to Chicago via St. Louis, if used before July 19, 1883, midnight. The rest of the facts appear in the opinion.)

This train check, it will be perceived, does not purport to be a regular passage ticket. The name of the place from and the place to which the holder is to be carried is not stated; on the reverse side it is countersigned in ink by the conductor by whom it is issued to the passenger; and the particular check was in fact issued by one of the defendant's conductors to a passenger other than the plaintiff, who had taken passage on one of the defendant's trains the day previous at Council Bluffs, upon a limited ticket for Chicago by way of St. Louis. It seems that this passenger had travelled as far as St. Louis, when he had left the train and sold this train check to the broker from whom the plaintiff bought it. With this he went with his baggage to the Union Depot, and there presented it to the porter of the defendant's evening train, who allowed him to get aboard. It also passed the inspection of the bridge conductor; but when the train had got beyond the bridge, the regular train conductor came around, examined it, told the plaintiff that it was not good, and that he would have to pay fare or get off at the next station. The plaintiff declined to do either, and the conductor and porter put him off, without unnecessary violence, at a station called Edwardsville, eighteen miles from St. Louis. He stayed all night at Edwardsville, came back to St. Louis the next morning, and afterwards bought a ticket, and again started for Chicago according to his original plan. This statement indicates substantially the amount of damage which he suffered. For this damage he brought the present action, and a jury gave him five hundred dollars.

At the trial, the defendant put in evidence a book of instructions issued by the defendant to conductors and agents, which starts out by saying that "in order to prevent the scalping of

limited and unlimited first-class tickets, reading between prominent points on this company's lines, it is deemed advisable to take up such tickets on first presentation and issue a continuous passage train check in exchange, and for the proper issuance of continuous passage train checks the following rules are given." Then follow a series of minute directions in regard to the issuing and punching train checks; the cautions which are to be given to the passengers to whom such checks are given; what reports conductors are to make touching the same; what they are to do in the case of a misunderstanding with the passenger, and the like. The numbers by which the leading stations on the defendant's lines of roads are designated on these train checks are also given, from which it appears that Council Bluffs is designated by the number 885, St. Louis by the number 601, and Chicago by the number 501. When these train checks are issued in exchange for a limited passage ticket, which the conductor takes up, he is required to punch the word "limited" in the margin of the check. With these instructions in view, recurring to the train check which this plaintiff had bought, it is seen that the number 885, in the column marked "from" in the tint, was not punched according to the instructions, this should have been done by the defendant's conductor when he issued the check to the passenger. It also appears that the word "limited" was not punched, as the rules required. It further ap pears that, in the column marked "to" in the tint, the figure 501 was punched. Then, at the bottom of the check, there were punched the word "July," the figure 1 in the left-hand column of figures, and the figure 9 in the right-hand column of figures. The punch marks indicated, according to the instructions put in evidence, and also in accordance with what appears on the face of the check, that the check would not be good unless used before midnight of the 19th of July, 1883. In this regard also, the defendant's conductor had not punched the ticket according to the instructions, which prescribe that "Checks must be limited to one day from date of issue. For instance; a check issued on January 1st must be punched to expire on January 2d." This check was issued by the defendant's conductor, to a passenger, as already stated, on the 17th of July, and was punched to expire on the 19th. The train on which this passenger was, arrived in St. Louis on the morning of the 18th, it would seem on the usual time. The defendant's next regular train for Chicago left St. Louis half an hour later, namely, at 8 o'clock in the morning, so that it appears that the train on which this plaintiff took passage for Chicago was not a continuous train in respect of the train on which the previous holder of the ticket had arrived in St. Louis. Paragraph 108, of the defendant's instructions to agents and conductors already referred to, is as follows: "these checks, when issued in accordance with the foregoing instructions, will be treated as valid passage

tickets, and they will be subject to the same rules concerning ‘trip cancellations' that are now in force for regular tickets; such cancellations, however, must be made in that portion of the check designated by stars (***) and, of course, these cancellations will be regarded as additional to those above mentioned." There is no evidence that these instructions are communicated to the public or to the ticket brokers, or to any persons except the defendant's conductors and agents, for whose guidance they are intended. We mention this fact because it seems important to take into consideration in determining whether the public are entitled to buy these checks of any one who may happen to hold them, just as they are entitled to buy an unused passage ticket, and to compel the railway company issuing the same to a performance of the contract thereby expressed.

It is quite clear that a train check, such as the one which this plaintiff bought, punched as it was punched, affords an unscrupulous broker the means of practising a fraud upon a traveller. A broker, with a copy of these instructions, to conductors and agents in his hand, could explain to the traveller that the word "limited" had not been punched out, therefore, that it had not been given in exchange for a limited passage ticket. He might further explain to him that the figures "885" had not been punched out, and therefore, that it did not appear from the check that it had been given to a passenger who had started from Council Bluffs, and, hence, that it did not appear that it had been given for a passage, a part of which had been performed. He might also draw inferences in favor of the goodness of the check from the fact that, in addition to the date of the transaction, it had another whole day to run. But whilst it is so, it does not appear upon what principle a traveller can have a right to regard such a check as a promise on the part of the company to transport any person until the date named, from St. Louis to Chicago, neither of which places are named upon its face. Moreover, the check purports on its face to be good only for a continuous passage, and it does not appear upon what ground a member of the public could infer from this, that one man has a right to travel on it over one portion of the route for which it is given, and another man a right to travel on it over the remaining portion. It is quite clear, therefore, that the holder of this check was not entitled to regard it as an ordinary passage ticket.

The defendants prayed at the close of the plaintiff's testimony, and again at the close of the whole case, an instruction in the nature of a demurrer to the evidence, which the court refused to give. The court refused all the instructions prayed by the defendant, and, in lieu thereof, gave the following instruction of its own motion. "The jury are instructed that the ticket read in evidence was valid for one continuous passage on regular passenger