Harris v. Delaware, Lackawanna & Western Railroad

*458 , The opinion of the court was delivered by Parker, J.

Upon the second review in the Supreme Court the question whether damages were recoverable for the indignity and ignominy to which plaintiff claimed to have been subjected at the time his ticket was taken up, was again argued and the Supreme Court followed its previous ruling.

The question has been further argued in this court on the present writ of error, and after full consideration, we are of opinion that there was no error in the ruling of the trial court or of the Supreme Court in this regard. The language of the Supreme Court, in its first opinion, that the action was for conversion of the ticket should not be understood as meaning that it was an action of trover. The declaration, while Hot framed in the technical language of the old precedents, sounds plainly in trespass cle bonis asportatis, and if the jury was entitled to find such a case made out on the evidence, the question would then be whether compensatory damages for indignity were proper to be awarded.

Our examination of the case satisfies us that under the evidence a verdict as for a trespass was justified. The ticket was a commutation ticket and left the hand of the plaintiff for the sole and momentary purpose of permitting the conductor to punch and return it. Indeed, the plaintiff might well have retained his hold on the ticket while it was being punched. We consider that it no more left his legal possession than if he had retained such hold; and that the action of the conductor in retaining it and declaring it forfeited under the circumstances was as much a trespass as if he had snatched it out of plaintiff’s hand.

This point once settled, the question of damages is simplified, for the authorities are as one that in the action of trespass, which is based 021 the taking being violent in contemplation of law, compensatory damages are recoverable for humiliation and indignity accompanying the wrongful act.

Two questions of evidence were also presented and were disposed of in the per curiam opinion of the Supreme Court above set forth. As to these questions we concur in the view *459 of the Supreme Court and deem it unnecessary to add anything to the opinion above quoted.

The judgment will be affirmed.

For affirmance—The Chancellor, Garrison, Swayze, Trenchard, Parker, Minturn, Bogert, Vredenburgh, Congdon, JJ. 9.

For reversal—None.