904
,. ';·FEDEllAL REPOllTJ;:R.
And, if the agent be authorized to l'eceivethe premium; an agreement betiween the,'applicant ,and the agent :that the latter will, be: responsible to the company fortbeamounti'and hold the applicant as his personal debtor there· fIJr,lisa,waiver of ,the stipulation futhe policy that it shaUnot :be,:binding till the premi u m is received by the company or its accredited:agent., The samB is ,if. the language of policy is that s1;lall be paid before become valid.": ",
"
i
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,,;1 upi;>ri 9,f,the 'i'l! "
effective and binding 1:ork, July, the mormngof 5,1885, ,here..: " ",. ,fav()r of the t.
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GIBSON
'!1.
EAs1' TENN!J:ssEll:, V. &G'. R. Co. and another. ! ' ..
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1J': hnneasee. )j ,., -
June
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a, 1887.) : "
he it,tp, 8:nd the motb,e;r leaves the trltin, shem",y' recd\>er damages, If t1).e refusal 'be wrongful, although the conductor offer'tbjja58 11I'Il1' upon nerown btoket without the child. 1t is unreasonable in such,a cltSeto'llS]ca ' '., S.
If the conductor refuse to pass a child traveling on half-fare rate because
If therll be a rllasonable dIspute between the passengoer, and the conductor ,as to the validity of the ticket offered, and the obstinately refuse to pay the Iltdditional fare:demIUl<!ed" when able to do that,. and. insist on b.eing the the jl,lry .Ulust take that fact.in mitigatio)l of damthe conages, and dlsal'low any compensation 'for wounded feelings, ductor be'mistaken in his action.. :Hoall v. Memphi8 (I; R.' 00.,15 Fed. Rep. .57,
.ljIF DAMA?;JtS.
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At Law. , . Mrs. Gibson purchased" at Ga., two whole and two half tickets to Tennessee, at emigrant rates. When she reached the Memphis & ChaHestot:rroad,Conduct?rRatnseyrefused to pass the boy, because he believed him' to be over 12 years old, and the mother and her party left the train at Grand Junction. They remained there three days in the when the railroad company brought them to the city on the tickets that were' rejected. No indignity or rudeness was proved, and no damages,exceptthe delay, and there was a verdict for 8100. ' John D.Mqmn, for Wm.K.P08ton, for defendant.9. .j
HAMMON'ri, J.;(01'ally.) The ejection of the boy was the Sl\me thing as the ejection of the mother, as it was unreasonable to ask her to lel\ve the child, under the circumstances,{tndproceed on her own ticket, about
GIBSON V. EAST, TENKESSEE,V. & G. R. -CO.
905
which there was no dispute, although the conductor offered to take that course. On the measure of damages, the court adheres to the ru.le announced in Hall v. Memphis & a. R.(Jo., 15 Fed. Rep. 57, that, whenever there is a reasonable ground to dispute the right of the passenger to ride on the, it is, the duty of the passenger to pay the additional fare demarided by the conductor, if able to do so, and rely on ,the remedy to ,recoyer the amount before a. justice of the peace or other competent that damages cannot be increase4"by an o?stinate resistance to the demands of the conductor, and by forCing him to expel the senger from, the train. The passenger can take that cou,rse, undoubtedly; for, it thecoritract or ofthepu-blic duty of the his o"inunreasonable in resisting a fairly reasonable demand of the conductor can be taken by the jury as a miti-: gatiohof Xl,a,mages, andwilFreduce them to nominal or actual'damage sustainedhy the delay. , " , .,' If the question were one of contract only, the plaintiff could recover all other no more than the $5.15 demanded, and by ,against ,the damage could have been prevented. But this is an carrier for hreach of duty as carrier, torecover such damages for the expulsion, if wrongful; as the jury may deq,p,pnthe foots, of · the :ca,se j' ,and, 1;Jeca.use of. the peculiar nature of the if the jury find it. so, can qI!ly 1:>e taken, in mitigation of the damages to be awarded by their, verdict. ' , .' , .A c;ond'1.lctor. st9P ,to try the d,isputed question 6f fact, and, i( so required, he must always take the passenger's word to the age ofa child, or ipvolve his company in a claim for large damages for any take hef riiightreasonabl'y,inake.The company is responsible for the to the circu01mistake,. but, in awarding'damages, thei:q.iy will stances, and ,say whether was unreasoQable in making the or acting upon his honest belief that the child was over age. If it were an infant of tender years, and he made the unreasonable claim that it was over' age, the jury would :award larger damages than if it were a latge and over-grown child, closely bordering on the limit, and having the pearance of Qeing over the age. In the latter case, the passenger would be unreasonable to insist on rejection; a.nd could then recover only nominal or actual damages, t6 be'confined to such extraordinary expenses as were incurred by the delay and the loss proved to have resulted by the detention; but no dompeusation for injured feelings or wounded sensibilities or the like. The age of this child is disputed, and the jury is required Ito settle that question of fact. If over the nge of 12 years, the plaintiffs can recover nothingjif under, such damages as the jury may fix under the rule laid down., . .' "'
906 BARD
v.
CITY OF AUGUSTA.
Oourt, J)i Kan8a8. 1887.) 1. RAILR.O,4.D COMPANIES-MUNICIPAL Am-I'OWER TO ISSUE BONDS.
a.SAME.
Section 4 of· the Kansas act for the Ol'ganization of cities of the third class. (Comp: LlI.WB Kan. 187,) which provides,that such cities shall remain a part of the .corporatelimits ofthe townships in .which they are situated. forvarious purposes, including that of subscribing stock in aId of constructing railroads, does not exclude such cities from the power to issue railroad aid bonds.
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Utidersection 63 of theso.me act,which provides that the council of such citills shall tll,ke. all needful steps to protect intere!lt!l of the city in any railroad leading from or towards the same, .cities 'of the third class are authorized to become interested in railroad enterprises. .';, 3 'SAME.
Kal1. 1876. 0.107, as amended in 18!77, (Comp·. Laws, 792,) relating to aid in the construction of railroads, expressly authorizes anN city, upon cer· tain COnditions, to issue bonds for railroad purposes. LaW!
John 'O'J)dy, .... S. O. Thctbher" for defendant·. " ' } " . f; ";'.:;' '''f
At
complaint.
. This on rail\oad aid bonds,and the qnestion to ,the secopd count of the answer is as to the presented by ,t4e power of the defendant 'city to issue shchbonds; for, if the power existed, the. recit!+1ftir ,bonds cut off defe,ndant is a city of the thJrd d4ss. forthe6rganization of such cities was passed in 1871. ' 4 follows:' ,..,'
governed by shall be and raD,lain a Fhe, corporate qf the municipal.to\vnships in which the sltme are sltqatEld.for alItowtiship purposes of electIng justIces of the peace, constables,' 1'or the 'purpose of 'buildingbHdges' and subscribing stock in aid of constructing railroads. ,All elections for justices of the' peace and constables, and for issuing township bonds for building bridges, and 'railroads, shall be at Bl,lqlt »Jace as shall be prescribed !for holding township elections." Comp; La.",s,JS7, .
:Thisseotion'wasamended in 1876 by th.eadditionof two provisos, and, ftllame.nded,took effect February 29,:1876. Nothing need be said as to these provjsos,; for it is conceded that defendant did not come within their scope.:, ' , Now, the contention of defendant is that, under this section, the sole power of Issuing railroad' bonds was in the township, and therefore that itS'issue of such bonds was without warrant oflaw; . This is a misconimport of· the section. It. does not: attempt to limit or qualify any of the powers given by other portions! M:theact to the city. It simply provides that the mere organization of the municipality into a city of the third class shall not withdraw it from the territorial limits of . the township, but it shall remain a part thereof for certain township purposes.