Lapas attēli
PDF
ePub

A rule of a street railroad company requiring a passenger to ask for a transfer at the time he pays his fare is reasonable.- Fischer v. N. Y. City R. Co., 54 Misc. (N. Y.) 267, 104 N. Y. Supp. 400.

The rule of the company that a passenger shall demand a transfer only at the time of paying his fare is not a reasonable regulation, and does not relieve the company from statutory penalties for refusing a later demand.- Levine v. Nassau Elec. R. Co., 50 Misc. (N. Y.) 552, 99 N. Y. Supp. 422.

[blocks in formation]

Where, upon payment of his fare, a passenger immediately demanded a transfer, and upon no reply being made, the conductor apparently not hearing the request, the passenger, "less than a minute " thereafter again demanded a transfer, the demand complies with rule of the street railroad company providing that passengers must ask for transfers at the time of paying the fare.- Wasserman v. N. Y. City R. Co., 104 N. Y. Supp. 398.

[64] Facts establishing refusal to issue transfer.

In an action to recover a penalty for refusal to give a transfer it appeared that the passenger asked for a transfer to Canal St., not stating in which direction she desired to go on that street, and received a transfer which was only good going east, while she desired to go west.- Held, that the evidence did not establish a refusal.- Thistle v. N. Y. City R. Co., 54 Misc. (N. Y.) 268, 104 N. Y. Supp. 401.

The giving of a transfer which is not good is tantamount to a refusal to give a good transfer.- Gasper v. N. Y. City R. Co., 51 Misc. (N. Y.) 39, 99 N. Y. Supp. 902.

"Refusal," under a statute imposing a penalty, implies that the party refusing has the ability to do the thing demanded of him, or if he has not the ability, the want of it must arise from his own negligence or want of proper attention to the business entrusted to him.- Conley v. Sherman, S. & S. R. Co., 90 Tex. 295, 38 S. W. 519.

[65] Presumption that proper transfer will be issued.

A passenger who is entitled to and demands a certain transfer is justified in assuming that a proper transfer will be issued to him.- Moon v. Interurban St. R. Co., 85 N. Y. Supp. 363.

[66] Issuance of improper transfer.

Considered as a refusal to issue,- see ante, note [64].

The conductor of a car on which a passenger presents a transfer and a reasonable explanation why his transfer does not on its face entitle

him to ride on that car, determines at the peril of himself and his company, whether to permit the passenger to continue his journey.— Georgia R. & Elec. Co. v. Baker, 125 Ga. 562, 54 S. E. 639.

A clause in a transfer that "the holder, by accepting, agrees that, should any controversy arise as to its validity, holder will pay fare and call at company's office for correction," is unreasonable and void.Georgia R. & Elect. Co. v. Baker, 125 Ga. 562, 54 S. E. 639.

[67] Time limit on use of transfers.

A ten minute limitation on the use of a transfer, where the holder cannot find accommodations in a car within that time, is arbitrary and illegal.- Jenkins v. Brooklyn Heights R. Co., 29 App. Div. (N. Y.) 8, 51 N. Y. Supp. 216.

A street railroad may reasonably limit the time within which its transfers may be used.- Muckle v. Rochester R. Co., 79 Hun (N. Y.), 32, 29 N. Y. Supp. 732.

A requirement that a street railway transfer shall be valid only if used within fifteen minutes is not invalid in the absence of any statutory provision. Heffron v. Detroit City R. Co., 92 Mich. 406, 52 N. W. 802, 16 L. A. R. 345.

[68] Each refusal a separate offense.

N. Y. Stock Corp. L., § 53, imposed a penalty for any refusal of the president and secretary of a corporation to exhibit its stock book to a stockholder when requested to do so. A stockholder, upon successive days, demanded an inspection of the books and was refused.- Held, that he wanted the book for but one occasion and only one penalty was incurred.- Cox v. Paul, 175 N. Y. 328, 67 N. E. 586.

The statutory penalty may be recovered for each refusal to give transfers.- Lux v. N. Y. City R. Co., 45 Misc. (N. Y.) 222, 92 N. Y. Supp.

109.

Under a statute providing that any railroad which should refuse to issue a mileage book would be liable to a penalty, several demands by one person and refusals by the railroad give only one cause of action against the railroad.- Watson v. N. Y. O. & W. R. R. Co., 24 Misc. (N. Y.) 628, 54 N. Y. Supp. 201.

Under the North Carolina statute prescribing penalties for refusing to transport cattle, each day's refusal to transport one head of cattle is a separate offense.-Carter v. Wilmington & W. R. Co., 126 N. C. 437, 36 S. E. 14.

[69] Recovery of more than one penalty in a single action. Penalties inuring to benefit of state,- see post, §§ 56, 58, notes.

But one penalty for refusals to give transfers can be recovered in the same action, and the bringing of the action must be deemed a waiver of

all previously incurred penalties.-Griffin v. Interurban St. R. Co., 179 N. Y. 438, 72 N. E. 513, modfg. s. c. 96 App. Div. (N. Y.) 636, 89 N. Y. Supp. 1105, and Scudder v. Interurban St. R. Co., 96 App. Div. (N. Y.) 340, 89 N. Y. Supp. 1115.

[ocr errors]

A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty should be regarded as a waiver of all previous penalties incurred. - Griffin v. Interurban St. R. Co., 179 N. Y. 438, 72 N. E. 513, modfg. s. c. 96 App. Div. (N. Y.) 636, 89 N. Y. Supp. 1105, 96 App. Div. (N. Y.) 340, 89 N. Y. Supp. 1115.

If cumulative recovery of penalties is to be permitted, the legislature should state its intention in so many words.— Griffin v. Interurban St. R. Co., 179 N. Y. 438, 72 N. E. 513, modfg. s. c. 96 App. Div. (N. Y.) 636, 89 N. Y. Supp. 1105, 96 App. Div. (N. Y.) 340, 89 N. Y. Supp. 1115.

A party suing for penalties can recover for but one violation or default occurring prior to the commencement of the action - Cox v. Paul, 175 N. Y. 328, 67 N. E. 586.

Under a toll road regulation statute, penalties may be recovered, by the person aggrieved, for each offense.- Suydam v. Smith, 52 N. Y. 383. Under the N. Y. Act of 1857 to prevent extortion in railway charges, only one penalty of $50 can be recovered, together with the excess paid, for all overcharges prior to the beginning of suit.- Fisher v. N. Y. C. & H. R. R. Co., 46 N. Y. 644.

Cumulative penalties cannot be recovered in one action for failure to issue transfers in violation of N. Y. R. R. L., § 104.- McLean v. Interurban St. R. Co. (No. 2), 102 App. Div. (N. Y.) 18, 92 N. Y. Supp. 77, modfg. s. c. 87 N. Y. Supp. 135.

N. Y. R. R. L., § 104, providing that for every refusal to comply with the requirements of that section as to the giving of transfers, the corporation so refusing shall forfeit $50 to the aggrieved party, permits the recovery of cumulative penalties in one action.- Topham v. Interurban St. R. Co., 96 App. Div. (N. Y.) 323, 89 N. Y. Supp. 298, revg. s. c. 42 Misc. (N. Y.) 503, 86 N. Y. Supp. 295; disapproved 106 App. Div. (N. Y.) 1, 94 N. Y. Supp. 653

Only one penalty for refusal to give a transfer can be recovered in one action, and the bringing of an action waives all right to recover penalties accruing theretofore.- In re Transfer Penalty Cases, 46 Misc. (N. Y.) 579, 92 N. Y. Supp. 322.

As many penalties for excessive charges as have been incurred before the bringing of suit, can be recovered in the one action.― Johnson v. Hudson R. R. Co., 2 Sweeny (N. Y.), 298; revd. on other points, 49 N. Y. 455,

Only one penalty for failure to give a transfer can be recovered in a single action, and the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.- Harkow v. N. Y. City R. Co., 121 App. Div. (N. Y.) 194, 105 N. Y. Supp. 689.

Only one statutory penalty for an omission of duty by a common carrier can be recovered up to the bringing of suit.- Parks v. Nashville, C. & St. L. R. Co., 81 Tenn. 1, 49 Am. Rep. 655.

[70] Good faith of passenger as affecting right to penalty.

A recovery of penalties and excess fare can be had when the plaintiff was riding only to obtain the penalty.-Fisher v. N. Y. C. & H. R. R. Co., 46 N. Y. 644.

Where it appears that a passenger who was refused a transfer rode to the transfer point with the sole object of finding out what would be done and had no business beyond the point at which the transfer would be honored, he is not entitled to recover the statutory penalty.— Bull v. N. Y. City R. Co., 121 App. Div. (N. Y.) 582, 106 N. Y. Supp. 378.

Where, in an action to recover a penalty for the refusal of a street railroad company to give a transfer, it appears that the sole purpose of the plaintiff in asking for a transfer was to bring an action to recover the penalty in case of its refusal, there can be no recovery.— Nicholson v. N. Y. City R. Co., No. 4, 118 App. Div. (N. Y.) 858, 103 N. Y. Supp. 695; McCarthy v. N. Y. City R. Co., 55 Misc. (N. Y.) 208, 105 N. Y. Supp. 1128; Johnston v. N. Y. City R. Co., 54 Misc. (N. Y.) 642, 104 N. Y. Supp. 812.

One demanding a transfer for a continuous trip, with no desire to take such a trip but only to ascertain if the transfer would be given, is not a passenger under N. Y. R. R. L., § 104.- Myers v. Brooklyn Heights R. Co., 10 App. Div. (N. Y.) 335, 41 N. Y. Supp. 798.

That a passenger was riding for the purpose of collecting the penalties for refusing to give transfers does not destroy the statutory right of action. Fitzmartin v. N. Y. City R. Co., 51 Misc. (N. Y.) 36, 99 N. Y. Supp. 765.

A person riding on a street car for the purpose of recovering penalties for refusals to issue transfers may recover the statutory penalty.McLean v. Interurban St. R. Co., 87 N. Y. Supp. 135; modfd. 102 App. Div. (N. Y.) 18, 92 N. Y. Supp. 77.

One who goes on a train for the sole purpose of paying an excessive charge, if one is demanded, and then suing for the statutory penalty, may nevertheless recover.- Missouri Pac. R. Co. v. Smith, 60 Ark. 221, 29 S. W. 752.

Under a statute of Arkansas providing that a person who is charged an excessive fare may recover a penalty from the carrier, a

passenger so injured may recover a penalty for each overcharge, although he went upon the train solely for the purpose of accumulating penalties against the railroad.- St. Louis & S. F. R. Co. v. Gill, 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452n; affd. on other points, 156 U. S. 649, 15 Sup. Ct. R. (U. S.) 484

[71] Matters in defense.

The company may raise the question of the reasonableness of rates fixed by the state, as a defense to an action for the recovery of penalties for violating the directions of the statute.- St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. R. (U. S.) 484, affg. s. c. 54 Ark. 101, 15 S. W. 18.

A common carrier cannot excuse itself from compliance with the Safety Appliance Act by showing that the particular equipment is out of repair.-U. S. v. Gt. Northern R. Co., 150 Fed. 229.

In an action for violating the statute as to use of automatic couplers, it is not a defense that the defendant used reasonable care and diligence in keeping such coupling apparatus on its cars in repair.-U. S. v. So. R. Co., 135 Fed. 122.

The "mistake" relieving a railroad corporation from the penalty for overcharge, under N. Y. R. R. L., § 39, may be one of law as well as of fact, and where there is shown to have been a mistake by the corporation in the construction of its statutory rights, a mistake not the result of carelessness in being advised as to such rights, it is exempt from the penalty.- Goodspeed v. Ithaca St. R. Co., 184 N. Y. 351, affg. s. c. 88 App. Div. (N. Y.) 147, 84 N. Y. Supp. 383.

In an action to recover the penalty provided for by N. Y. R. R. L., § 104, for the refusal of a street railroad company to give a transfer, it is no defense that the defendant had provided for transfers and had given its conductors transfer tickets to give to passengers.- Snee v. Brooklyn Heights R. Co., 120 App. Div. (N. Y.) 570, 104 N. Y. Supp. 907.

That the conductor did not have any transfers left will not absolve the street railway company from liability.-Rosenberg v. Brooklyn Heights R. Co., 91 App. Div. (N. Y.) 580, 86 N. Y. Supp. 871.

If a conductor refuses to accept a transfer and compels payment of another fare, but later offers to refund the money and accept the transfer, the company may plead such facts as a defense to an action for the statutory penalties, to show that such overcharge was inadvertently and mistakenly made.- Tullis v. Brooklyn Heights R. Co., 71 App. Div. (N. Y.) 494, 75 N. Y. Supp. 863.

A penalty cannot be recovered by a passenger who has failed to receive a transfer through the misjudgment, neglect, mistake or inadvertence of the conductor, or through the latter's belief that the pas

« iepriekšējāTurpināt »