Scottish Court of Session Decisions

On 13th November 1890 Jacob Harris travelled from Kirkcaldy to Edinburgh by the North British Railway Company's line. On the arrival of the train at Haymarket Station, Harris, who had previously received their tickets from the five other passengers travelling in the same compartment as himself, handed them along with his own to the ticket-collector, who took them and left the compartment. He returned almost immediately, and declaring that one of the tickets was from Leven to Kirkcaldy, demanded payment from Harris of 1s., as the fare between Kirkcaldy and Edinburgh. Harris refused to comply with this demand, and was ejected from the carriage by the ticket-collector, with the approval of the stationmaster. Harris was then taken to the stationmaster's office, and was there charged with attempting to defraud the company by travelling without having paid his fare, and with intent to avoid payment. He was requested to give his name and address, and did so.

Harris thereafter brought an action of damages against the railway company.

He averred that he was travelling on the day in question with a return ticket from Kirkcaldy to the Waverley Station, Edinburgh. “(Cond. 3) The pursuer was a lawful passenger. He was entitled to keep his seat, and the defenders were bound to carry him on to the Waverley Station. Without any legal warrant the defenders' servants, for whom they are responsible, expelled him and obliged him to leave the train, and while treated with incivility and violence at their hands, he was exposed to a public affront, and dealt with as one who had been guilty of cheating the defenders.”

The defenders denied that the pursuer had had a return ticket from Kirkcaldy to Edinburgh, but admitted that he had been expelled by their servants from the train, and accused of attempting to defraud the company.

They pleaded, inter alia—“(2) The pursuer having tendered to the defenders' collector at Edinburgh a ticket not available for the journey he was then making, and having refused to pay the fare for the said journey, the defenders' collector was entitled to expel the pursuer from the said carriage.”

A proof was allowed, the result of which is summarised at the beginning of the Lord Ordinary's opinion.

On 21st March 1891 the Lord Ordinary ( Kincairney) pronounced this interlocutor:—“Finds that on the date libelled the pursuer was illegally and wrongfully and forcibly removed by the defenders from the railway carriage in which he was seated, and was prevented from completing the journey for which he had purchased a railway ticket from the defenders, and that the defenders are liable in damages therefor: Assess the damages at £25, and decerns therefor against the defenders; Finds the pursuer entitled to expenses, &c.

“ Opinion.—There has been a great deal of discrepancy in the evidence in this case, and on some points it is impossible to come to any certain or confident conclusion. I can only decide accordingly to what appears to be the balance of the evidence, without much assurance that my conclusions are correct.

I do not propose to criticise the evidence, but merely to state the facts which I think established, and on which the question depends.

It is well proved that on 13th November last the pursuer took a return ticket from Edinburgh to Kirkcaldy, and had the one half of it in his possession when he returned to Edinburgh, and delivered that half to the ticket-collector at the Hay-market Station. The proof on that point is unusually satisfactory and complete, and there is no need to refer to it.

“The pursuer, when he reached Hay-market, was in a third-class compartment, in which there were five other passengers, four of whom were his acquaintances.

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The pursuer handed six tickets to the ticket-collector, Morrison, his own return ticket being one of them.

These tickets had been handed by the other passengers to the pursuer, whose seat was next the platform, while the train was approaching the station.

These six tickets have been produced by the defenders. They are all single tickets except the pursuer's. Two of them are from Kirkcaldy to Edinburgh, two from Lochgelly to Edinburgh, and one from Leven to Kirkcaldy. This is not admitted by the pursuer, but I think it proved. I see no sufficient reason for doubting the evidence of Morrison, the ticket-collector, on that point.

All these tickets have been accounted for by the evidence of the passengers except the ticket from Leven to Kirkcaldy.

One of the passengers was a man called Levi, who was a stranger to the others. He stated that he could not speak English, and he was examined through an interpreter. He deponed that he had taken a ticket from Cupar to Edinburgh, but there is no ticket from Cupar to Edinburgh among those which have been produced by the defenders. The ticket-clerk at Leven was examined, and deponed that he recognised Levi as a man who lived in Leven.

Morrison, the ticket-collector, received these tickets, counted them, and shut the door of the carriage. On examining them immediately after, he discovered the ticket from Leven to Kirkcaldy. Morrison depones that he mentioned his discovery to another ticket-collector, Macpherson, and that he returned to the carriage at once.

The pursuer says that he did so in two or three minutes.

The discovery of a false ticket among the six naturally excited the suspicion of the ticket-collector, and it implicated no doubt the whole of the passengers in the carriage.

It was strongly and very forcibly argued that the conclusion was almost irresistible that the tickets were collected for the purpose of concealing the fact that one of them was not a ticket for Edinburgh.

It might have all happened, however, through innocent mistake.

The collection of the whole tickets by one of several passengers is not an occurrence so uncommon as of itself to' arouse suspicion, and it does not seem probable that any man would endeavour to palm off a false ticket on the railway company knowingly, for the sake of saving only a shilling; and it seems singular that he should, in order to perpetrate that unprofitable fraud, go to the expense of a ticket from Leven to Kirkcaldy, when one to some nearer station might have served his purpose.

No doubt it was to be expected that if the Leven to Kirkcaldy ticket had been given up by innocent mistake, the matter would have been cleared up by this time, and the true ticket to Edinburgh found and produced; and since that has not been done, it is maintained that the only possible conclusion is that a fraud was perpetrated.

Certainly no satisfactory account of this ticket has been given. The most plausible conjecture, perhaps, is that it was given up by Levi, who deponed that he came from Cupar, but who did not give up a Cupar ticket, there being no such ticket amongst those collected. But seeing that Levi did not speak English, and that his residence was only discovered lately, I think it may very well be that no fraud was intended. Many possible cases in which that might be suggested can be readily imagined.

That, however, is mere matter of conjecture, and on the whole, although the case warrants suspicion, I cannot hold it proved that any fraud was practised on the defenders.

It certainly is not proved that the pursuer was privy to any fraud. There is nothing that can be held to be evidence to that effect; and I am of opinion, on the evidence, and giving weight to the impression which the deposition of the pursuer made on me, which seemed frank and straightforward, although exaggerated, that it is proved that he was perfectly free of all fraudulent intent, and is free from all moral blame in connection with the transaction.

The evidence about what followed when Morrison returned is hopelessly conflicting. Much was said on both sides about it, and I shall not attempt to reconcile the conflicting evidence. What seems to me fairly proved amounts to this—I think that Morrison explained about the wrong ticket, and demanded payment of a shilling from the pursuer, that the pursuer refused to pay it, and explained that he had had, and had given up, a return ticket from Kirkcaldy, that the collector did not ask his name or address, that the collector used some force and some violence with the view of removing the pursuer from the carriage, but not very much, because being physically much the stronger, he could have pulled the pursuer out had he really tried to do so. I cannot but regard the pursuer's evidence and that of the other passengers on this point as exaggerated, but I am not prepared to reject it altogether.

On the other hand, I am not prepared to accept the evidence of Morrison and the other collector to the effect that no force whatever was used, particularly when I keep in view the defender's statements on record, which seem to admit some measure of force.

Both Morrison and the witness Macpherson say that Morrison tendered the tickets back to the pursuer. That is contradicted by all the passengers, and on the whole I cannot hold it proved. I doubt the importance of it, even had it been proved; for Morrison had been away in the meantime for some little time, and might, for anything the pursuer knew, have collected other tickets and mixed them up with those collected from him.

In the meantime the stationmaster came up, and at his command or request

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the pursuer left his carriage. He seems to have left without the application of further physical force, but I hold that he left against his will, and on compulsion. He went or was taken to the ticket-collector's office, where, on giving his name and address, he was allowed to go, but not until his train had left for Waverley. Why the stationmaster did not ask his name and address without removing him from the carriage I cannot imagine. Had he done so there might have been no question.

The pursuer says that he was charged with fraud and was greatly outraged and insulted. He returned to endeavour to get some explanation, redress, or apology on the following day, and I must say that he seems to have been treated with very scant civility by the stationmaster.

He now seeks redress from the railway company, and the question is, whether they are liable for all or any of the wrongs of which he complains. For anything which the ticket-collector and stationmaster did, or are alleged to have done, which went quite beyond the scope of their duty, I apprehend the defenders are not liable. If the pursuer was assaulted, or defamed, or treated with indignity, insult, or incivility by the ticket-collector or stationmaster, the defenders do not seem to me to be answerable for that. They were not the agents of the company to do any of these things. But I think they are answerable for the forcible removal of the pursuer from his carriage before the completion of his journey, if that was wrongfully and illegally done.

Now the pursuer was certainly in the position of a passenger with a proper ticket. He had, prima facie, right under his contract with the defenders to be in their carriage, and to be conveyed by it to the Waverley Station, and that being so, it lies on the defenders to establish their right, either at common law or under statute, to remove him from their train before the end of his journey. The only statutory powers which were referred to are contained in the 96th and 97th sections of the Railways Clauses Act; but these do not directly apply, because they, in their terms, apply only to the case of passengers who attempt to travel without payment of their fare, which the pursuer was not doing.

It was argued for the defenders that the pursuer by collecting the other tickets became the agent of the other passengers for the purpose of delivering their tickets, and of so fulfilling their obligations to the railway company. Assuming that it was part of their contract to deliver their tickets, and that he thereby became liable to fulfil all the obligations of the other passengers, it was said that he entered into a new contract with the railway company to that effect. I do not see how such a contract could be inferred, because it does not appear to me that the ticket collector was capable of representing the railway company in any such contract. But, however that may be, the utmost that the defenders can make out of that argument seems to be that the pursuer might be liable for all the obligations of the other passengers, and so might be liable to pay the unpaid fare between Kirkcaldy and Edinburgh. But assuming that to be so, it could only entitle the defenders to enforce that obligation by the ordinary legal methods. That could not, so far as I see, entitle them to remove the pursuer from the carriage, or to prevent the completion of his journey. They remained liable, whatever his obligation might be, to fulfil their contract with him, and to convey him in safety to the Waverley Station.

But it was maintained, as I understood the argument, that the collector was entitled to attribute all the unexceptionable tickets to the other passengers and to treat the pursuer, contrary to the actual fact, as the holder of the wrong ticket. I do not say that there might not be cases where a right of that kind might arise to a railway company; for example, if one passenger should hand five tickets to the collector when there were six passengers in the compartment there might be circumstances in which the company might be entitled to deal with him as being himself without a ticket. But in this case the means were at hand for identifying the pursuer's ticket. It was the only return ticket, and, so far as I can see, it was certain and undisputed that that ticket was his. I do not see that in these circumstances the defenders could disregard that fact.

The proceedings of the defenders or those who acted for them, and whose actings they adopt, could only, so far as I see, be justified on the view that they were entitled to regard the pursuer as being without a ticket, and as endeavouring to travel without payment of his fare. But they could not, I hold, regard him in either light because he had a ticket, and they knew or had the means of knowing that he had. No regulation was pointed out by which it was made the duty of the ticket collector or of the stationmaster to remove a passenger in such circumstances. Both collector and stationmaster seem to have reached the conclusion that there was a conspiracy to defraud them, or that the pursuer was trying to defraud them, with a rapidity which amounts to rashness; and I hold that in acting on their suspicion, without clear legal warrant, they took the risk of finding themselves in the wrong. Even if it were true that the pursuer had been engaged in a felonious conspiracy for the purpose of palming off on the company the false ticket of another passenger, I cannot find any warrant in the Railway Act for holding that the stationmaster and collector were entitled to take the law in their own hands, and to punish the pursuer by removing him from the carriage.

Lastly, it was said that in any case the pursuer had brought all that had happened to him upon himself, and could not complain if the railway company had acted on the suspicions which his conduct had excited

But I am not of opinion that the conduct

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of the pursuer warranted the defenders in acting on their suspicions in the way they did.

No doubt it is true that railway companies may be liable to be defrauded in this way, when passengers choose to collect their tickets and deliver them at once. But I think there is no great danger if the collector takes care to examine the tickets immediately and before leaving the carriage, and there may be courses open to them in such circumstances by which they may protect themselves. At all events, the railway companies have no security except what the Railway Act and their bye-laws afford, and if these do not cover the case they must be content with the rights and remedies of ordinary creditors.

The case is not one for large and vindictive damages. The pursuer has, in my judgment, fully succeeded in doing what he was well entitled to do, that is, he has vindicated his character. I have myself no doubt about his honesty in the transaction. It is possible he may have suffered some unnecessary insult. I express no opinion about that, except that the railway company are not responsible for it. Still I am of opinion that the railway company broke their contract with him, and wrongfully and without legal warrant, and in a public and unnecessarily opprobrious manner removed him compulsorily from his carriage, and for these wrongs I think the pursuer is entitled to damages, which I assess at £25.

The pursuer referred to the following authorities— Highland Railway Company v. Menzies, June 8, 1875, 5 R. 887; Scottish North-Eastern Railway Company v. Matthews, April 20, 1866, 5 Irv. 237; Butler v. Manchester, Sheffield, and Lincolnshire Railway Company, 1888, 21 Q. B. Div. 207; Goff v. Great Northern Railway Company, February 13, 1861, 30 L.J., Q.B. 148; Bentham v. Hoyle, 3 Q.B.D. 289; Dysen v. London and North-Western Railway Company, 7 Q.B.D. 32; Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company, 8 L.R., C.P. 148.

The defenders referred, besides, to M'Arthy, 1869, 3 Irish Rep., Ch. 528; Apthorpe v. Edinburgh Street Tramways Company, December 13, 1882, 10 R. 344; Poulton, June 29, 1867, 2 Q.B. 538.”

The defenders reclaimed, and argued—The pursuer by collecting the tickets of the other passengers constituted himself their agent, and so became responsible for the fulfilment of their obligations to the company. At all events, by so acting he made it impossible for the defenders' servant to detect any fraud on the part of the other passengers, and the fact being established that a defective ticket was among those handed by the pursuer to the defenders' servant, he was barred from disclaiming it as his own. It was no sufficient answer for the pursuer to say that the defenders' servant by accepting the tickets from him had homologated his conduct, for the tickets having once been mixed the evil was irremediable, as a party who was acting with intent to defraud would never acknowledge that he was travelling without a proper ticket. Nor was the defenders' servant barred from challenging the validity of one of the tickets handed to him by the pursuer because he had left the compartment before making such challenge, it being satisfactorily proved that the ticket in question had been handed to him by the pursuer. The defenders' servants had therefore been justified in expelling the pursuer from the train— Apthorpe v. Edinburgh Street Tramways Company, Dec. 13, 1882, 10 R. 344. With this case the case of Butler was irreconcileable, and the rule established in the Scotch case must prevail.

Argued for the pursuer—The propositions advanced by the defenders were unsound, and the pursuer was entitled to damages. Once a contract had been established between the pursuer and defenders by pursuer buying a ticket, the defenders had no right to turn pursuer out, even if he could not produce his ticket— Butler v. Manchester, Sheffield, and Lincolnshire Railway Company, 1888, 21 QBD 207. Much less right had the defenders therefore to evict the pursuer, who did produce his ticket. In passing the tickets of his fellow-passengers to the defenders' servant the pursuer had acted for the convenience of all concerned, and in accordance with a custom in use on all railways, and had in no way constituted himself the agent of his fellow-passengers. Nor was he barred from disclaiming responsibility for the alleged defective ticket, for the defenders' servant by accepting the tickets from him had homologated his action. Further, the defenders', servant having accepted the tickets and left the carriage without making any objection, could not afterwards challenge the validity of any ticket handed to him by the pursuer.

At advising—