trains within the limits of the state. Dryden v. Grand Trunk R. R. Co., 60 Me. 812.

In general an excursion ticket stating upon its face that it is valid for that day only cannot subsequently be made use of. McElroy v. R. R. Co., 7 Phila. 206.

And so of commutation tickets for a given number of miles; where these are expressed to be available only for a limited period they cannot subsequently be made use of, even though the total number of miles for which they are issued has not been travelled. Lilles v. St. Louis, etc., R. Co., 64 Mo. 464; Sherman v. Chicago Ry., 40 Iowa, 45; Powell v. Pitts., Ft. W. & Chic. R. R. Co., 25 Ohio St. 70; Terre Haute, etc., R. R. Co. v. Fitzgerald, 47 Ind. 79.

A mere verbal declaration by the agent of a railway company that a ticket expressed to be good only for a limited time is good after that time, is of no force or effect against the company, unless the agent is vested with express authority to make such a statement. Boise v. Hudson River R. R. Co., 61 Barb. 611; McClure v. P. W. & B. R. R. Co., 34 Md. 532.

The punching of an expired ticket by a baggage agent is no waiver of its invalidity. Wentz v. Erie Railway Co., 5 Thomp. & C. 556.

Nor is the receipt of such a ticket by one conductor after its expiration binding upon another conductor so as to oblige him to receive it for passage. Johnson. Concord R. R. Co., 46 N. H. 213; Hill v. Syracuse, etc., R. R. Co., 63 N. Y. 101; Stone v. Chicago, etc., Ry. Co., 47 Iowa, 82; Kelley v. Boston & Me. R. R. Co., 67 Me. 173; Wakefield v. South Boston R. Co., 117 Mass. 544; Sherman v. Chicago R. R. Co., 40 Iowa, 45; Dietrich v. Penna. R. R. Co., 71 Pa. St. 432. It may prove of interest to those reading the principal case to have some idea of the line of argument adopted by the court below, the Common Pleas of New York. The following is the material part of the opinion of that court: "It is said that the words ought not to be construed so as to make the ticket which was good at the beginning bad if the train should not arrive at the end of the day named in the margin. Such a construction is said to be unreasonable. Is it not unreasonable if such be the import of the language of the ticket. It is not quite as unreasonable to allow a passenger with a limited ticket, which declares that it shall not be good after a certain date, to enter the cars five minutes before midnight of the time specified, and then begin a journey that may not end for three or four days afterwards? The running of trains, as everybody knows, is regulated by time tables, and a person about to purchase a ticket may always ascertain the time ordinarily taken by the cars to arrive at a given point. He may, if he chooses, know at what time it will be necessary for him to start in order to reach his destination before his ticket, if it be limited as to time, has expired. If he delays his departure, or if for purposes of his own he leaves the train and breaks up the journey so that the day designated by his ticket as the limit beyond which it will not be accepted has passed before his travel is at an end, he ought not to complain if the railroad company do exactly what the ticket declares it may do, reject the ticket and collect the fare anew. The case is different when he begins his journey in time to reach his destination in the usual course of travel, before the expiration of the limit fixed by the ticket, but is prevented by delays occurring upon the railroad from finishing it in the lifetime of the ticket. In such a case he may, without regard to the limit, travel upon the ticket to the point to which he bought it. In short, if it be the fault of the passenger that the ticket has expired before he has arrived at his destination he must bear the loss and pay the regular fare; but if his failure to reach the point for which the ticket is bought is imputable to the railway company, he is entitled to use the ticket, though the time for which it is limited has passed."

THE STATE OF INDIANA

v.

FRY.

(Advance Case, Indiana. May 18, 1882.)

By virtue of Sec. 8 of the act of March 9, 1875 (1 Rev. Stat., Indiana, 1876, p. 259), regulating the issuing of railroad tickets and coupons, all special tickets are exempted from the operation of said act whether they are half fare or excursion tickets or special in any other respect.

WORDEN, J.-This was an indictment against the appellee for selling a railroad ticket without a certificate of authority, as provided for the act regulating the issuing and taking up of tickets and coupons of tickets by common carriers, etc., approved March 9, 1875; 1 R. S. 1876, p. 259.

On motion of the defendant the indictment was quashed.
The State excepted and appeals.

It is alleged in the indictment that the ticket was issued by the Cincinnati, Indianapolis, St. Louis and Chicago R. R. Co., was a first class ticket and evidenced the right and entitled the holder to be transferred in a continuous passage over certain railroads mentioned, from the city of Indianapolis in the State of Indiana, to the town of North Vernon in that State, and thence to Louisville in the State of Kentucky. That there was stamped across the face of the ticket the word "special." The 8th section of the act above mentioned, as we find it printed in the statute book referred to, provides as follows: "The provisions of this act shall not apply to special, half-fare, or excursion tickets." It is said that in the enrolled bill the punctuation is different there being no comma between the words "special" and "half-fare." And it is claimed by the State that the section should be so read as to exempt from the operation of the statute two classes of tickets only, viz., half-fare tickets and excursion tickets. But why exempt from the operation of the statute half-fare tickets or excursion tickets any more than any other tickets supplied at less than the usual full fare, whether it be more or less than half fare? Such special tickets may be subject to conditions not attached to usual full-fare tickets. We think, without any particular reference to the punctuation of the statute, that the legislature intended to exempt from the operation of it all special tickets, whether they are half-fare or excursion tickets, or special in any other respect. From the description of the ticket sold by the defendant we must regard it as a special ticket, and not within the prohibition of the statute.

The judgment below is affirmed.

CHICAGO, ST. LOUIS AND NEW ORLEANS R. R. Co.

V.

JOHN W. SCURR.

(Advance Case, Mississippi. May 1, 1882.)

Plaintiff took passage at night on train from Grenada to Torrence. The conductor permitted the train to pass by Torrence without stopping. Ou reaching the next station the conductor gave to plaintiff an order addressed to the conductor of a freight train, which would pass in a few hours directing that the plaintiff should be carried back to Torrence free of charge. Plaintiff took the order, but did not avail himself of it. The conduct of the conductor throughout the matter was courteous. Held, That a verdict for $2,500 which was reduced by the court $833.33 was excessive.

CHALMERS, C. J.-Plaintiff (appellee) took passage at night on defendants' (appellants') train from Grenada to Torrence, holding a ticket for the latter place. Shortly before the train arrived at Torrence the conductor became involved in an altercation with some emigrants, who by mistake had gotten upon the wrong train, and also with a passenger, who without authority had pulled the bell-rope, and thereby stopped the cars. Thrown off his balance by these circumstances, the conductor carelessly and negligently permitted the train to run by Torrence without stopping, and was several miles beyond the depot before he recollected that there were several passengers on board for that point. He took up plaintiff's ticket before reaching the next station (Coffeeville), made to him a statement of the troubles with the emigrants and with the person who had rung the bell, as an explanation and excuse for his own negligence in failing to stop at his place of destination, and promised to make arrangements for his speedy return from Coffeeville without charge. Reaching Coffeeville (eight miles north of Torrence) he repeated his explanation, and delivered to plaintiff an order addressed to the conductor of a freight train, which would pass south in a few hours, directing the plaintiff should be carried back to Torrence free of charge. Plaintiff took the order but did not avail himself of it, preferring to remain in Coffeeville until a passenger train should go south in the afternoon. It is admitted that the conductor throughout the matter was courteous, respectful and polite. Plaintiff arrived at Coffeeville about two hours before day. The night was cold, dark and rainy. He did not remain in the depot building, in which there was a fire, but sought and obtained elsewhere a room, without a fire. Whether the room obtained was furnished with a bed, and if so, whether plaintiff re

tired to bed does not appear. If he had taken the freight train, upon the conductor of which he held the order for free transporta tion, he would have reached Torrence about nine o'clock in the morning. As it was he arrived there some time in the afternoon. There is no proof as to the value of his time, nor of any pecuniary loss of any sort, nor does it appear whether he was engaged in any business. There is no claim of mentally or bodily suffering except that plaintiff states that while at Coffeeville "he suffered some from cold."

The jury rendered a verdict against the railroad company for $2,500. Two-thirds of this plaintiff was forced by the court below to remit, and judgment was entered for $833.33. From this judgment defendants, their motion for a new trial having been overruled, prosecute this appeal.

The damages awarded by the jury were not only vindictive and punitory in their character, but so wholly disproportioned to the wrong done and the injury sustained, as at once to shock reason, conscience and common sense. To have permitted the verdict to stand would have been an invitation to every man in the country to embark in the business of riding on railroads in the hope of making a fortune by suing for damages claimed to arise out of some harmless carelessness of a conductor.

As modified by the court, the verdict is less shocking, and perhaps would not be set aside as excessive, if the case had been one justifying the imposition of exemplary damages. That it still re mains exemplary and punitory in its character is conceded, since the actual damage apparent from the proof is trifling.

Did the proof warrant the rendering of exemplary damages! By a long train of decisions in this State, which simply announce the rule everywhere recognized, such damages are permissible only where there has been some element of intentional wrong, or in the absence of intention, a negligence so gross as to evince a reckless disregard of consequences.

The idea is variously expressed by different text-writers and judges, and sometimes with a multitude of words; but if to the words, "negligence" and "intention" we add the word "insult." we will perhaps sufficiently embrace all the states of case, in which such damages should be awarded by a jury, or sanctioned by a court, Where the negligence of which a defendant has been guilty bears no aspect of recklessness or wilfulness, and is wholly free from any element of insult or rudeness, there is no justification for the imposition of any damages beyond such as will fully compensate for all injuries actually sustained. Full compensation for all actual damage may in the case of severe injuries, or the disappointment of important engagements, embrace amounts as large as if given by way of punishment; but if the injuries have sprung from that sort of negligence, or carelessness, or forgetfulness, to which

mankind generally are prone, the essential idea of punishment must be discarded. In the case at bar defendant's conductor was clearly remiss in duty, but it is quite apparent that he was neither wilfully, recklessly, nor rudely so. His negligence was inexcusable as to one who demanded compensation for all losses thereby sustained, but it affords no ground whatever for the imposition upon his superiors of that kind of punishment which would stamp his act as criminal. It sprang from that temporary thoughtlessness and inattention, of which we are all more or less guilty in the discharge of our daily duties. For it we must respond in full compensation to those who have a right to demand fidelity and care at our hands, but to punish us beyond this would be to inflict a wrong more grievous than that of which we have ourselves been guilty.

By the second instruction given for plaintiff the court authorized the jury to inflict exemplary damages upon defendants “if in their judgment the wrong and injury were of such character as to call for their imposition," and by plaintiff's fifth instruction the jury were told that the law devolved upon them the power of estimating the damages "as a matter of sentiment and feeling to be exercised by them according to their sound discretion." No criterion was by these instructions afforded the jury for determining whether the case called for the imposition of such damages, but by the first instruction given for the defendant the proper rule on this subject was announced. An instruction however asked by the defendant, substantially declaring that nothing beyond actual damage should be awarded, was by the court refused.

The action of the court on these instructions was erroneous. The case was plainly one in which exemplary damages were not allowable, and the court should have so informed the jury. Such a direction ought not to be given in a case that admits of doubt, or where there is a conflict of evidence as to any fact, the existence of which, if proved would warrant their imposition, but such was not the case here.

Although the facts were not agreed on, there was no disagreement as to any fact at all material to any issue involved; nor was there anything in the testimony, either of the plaintiff or of the conductor, showing or tending to show fraud, malice, oppression, or recklessness on the part of defendants' employees. Whether evidence is sufficient to establish a particular fact is a question for the jury; whether there is any evidence in support of it is always a matter for the determination of the court; and this doctrine is applied against defendants even in criminal prosecution for life or liberty. Holly's case, 55 Miss. 424.

In announcing the rule in this State as to the measure of damages in actions for the detention of personal property, it was said by this court in Whitfield v. Whitfield, 40 Miss. 352-367, that