Humphrey v. Michigan United Railways Co.

Brooke, J.

(after stating the facts). The position of the defendant is that this case is ruled by Frederick v. Railroad Co., 37 Mich. 342 ( 26 Am. Rep. 531 ), where this court said:

“As between conductor and passenger, the latter’s ticket is conclusive evidence of the extent of his right to travel, and he must produce it when called on as the evidence of his right to the seat he claims.”

We have no disposition to depart from or modify the law as here announced, but we are of the opinion that the facts in the instant case do not warrant the conclusions reached by defendant. It is urged that the ticket presented upon its face demonstrated that it had expired, and was therefore, as between the conductor and passenger, worthless for passage upon the day of its presentation. This seems to us an untenable contention. Here was a commutation book bearing the date of issue “June 8th, 1909.” The date of expiration was properly punched as July 9, 1909, and, while the latter date was improperly and mistakenly printed and written in two other places upon the book as of June 9, 1909, we think it clear that the most casual examination upon the part of the conductor would have convinced him that the date punched, and not that written or stamped, was the proper date and should have controlled.

Defendant next urges that:

“ No physical injury being either alleged or proven, no damages can be recovered for claimed humiliation and mental suffering.”

We have held that:

“Fright, unaccompanied by any immediate physical injury, cannot be made the basis of a recovery of dam *649 ages.” Nelson v. Crawford, 122 Mich. 466 ( 81 N. W. 335 , 80 Am. St. Rep. 577 ), and cases there cited.

As between a common carrier and its passengers, it is the duty of the carrier to protect the passenger from insulting, abusive, or opprobrious language on the part of its servants and agents, and to see to it that such servants and agents treat him respectfully. A breach of this duty affords a ground for action. Baldwin on Personal Injuries (2d Ed.), § 301; Knoxville Traction Co. v. Lane, 103 Tenn. 376 ( 53 S. W. 557 , 46 L. R. A. 549); Lafitte v. Railroad Co., 43 La. 34 ( 8 South. 701 , 12 L. R. A. 339). The two cases last above cited and the authorities therein discussed seem to be particularly relied upon by plaintiff. In the first case the defendant’s servant was drunk, and addressed the passenger in language slanderous in and of itself. The court there said:

“The plaintiff should be protected against hearing obscenity, witnessing immodest conduct, or submitting to wanton approach.”

In the second case the servant of the carrier groundlessly charged the passenger with the crime of passing counterfeit money. While there is and should be no doubt as to the principle upon which the liability of the carrier rests in such cases, it is clear that not every dispute arising between the servant of a carrier and a passenger, unaccompanied by abusive or insulting language, will give the passenger a right of action. Good faith and respectful treatment are imperative. Insults and wanton abuse are intolerable and are actionable. Whether the conduct and language of defendant’s agent in the case at bar was such as to render the defendant liable was a question of fact for the jury, under proper instructions.

Error is assigned upon every paragraph of the charge. We have examined it, however, and we think that the crucial question was properly submitted. The court charged:

“ I instruct you, gentlemen of the jury, if you find by a *650 fair preponderance of the evidence in the case that the conductor in charge of the car on the morning in question, and while in the performance of his duties as conductor, made use of impudent and insulting language to the plaintiff, then the plaintiff is entitled to recover. * * * If you do not find that the conductor used such language and insulted and abused the plaintiff, you will find a verdict of no cause of action.”

The unwarranted threat of the conductor to eject the passenger, though unaccompanied by actual expulsion or molestation, as well as his remark when paying plaintiff’s fare, were such acts as would afford a basis for plaintiff’s recovery if the jury so determined.

A motion for a new trial was made, one of the grounds for which was the claim that the verdict was grossly excessive. This motion was overruled. We here agree with the contention of the defendant. Whether it resulted from passion or prejudice on the part of the jury or not, it is clearly excessive.

The judgment will be set aside and a new trial ordered, unless the plaintiff remits from the amount thereof the sum of $400, in which event it will stand affirmed.

Moore, Mo Alva y, Blair, and Stone, JJ., concurred.