therein. The agent sent the §10 to the office at Kingston, and a book was returned, issued to “Mr. H. M. Parish.’’ The agent delivered the book to Leroy 15. Parish, and he delivered it to his wife, on or about the 20th day of May, 1002. As soon as she received it, the plaintiff noticed that it was made out to “Mr. H. M. Parish,’’ and she explained it to the conductor to whom she first presented it, some time in May, that it was intended to be issued to her and not to Mr. Parish, and that she had signed her name at the bottom of it; and that conductor permitted her to ride upon it. Several times afterwards, prior to August 6th, she also rode upon the book. On the last-mentioned date, however, she presented the book to the conductor of a train which she boarded at Hobart, and sought to ride thereon. The conductor declined to receive the book as fare, saying it was issued to “Mr." Parish, and his orders were to enforce the rules of the company; that she must pay her fare or get off of the train. The plaintiff refused to pay, and got off. The next day she wrote to the company, explaining the situation, and on August 8th or 9th she received a letter in reply from the general superintendent, telling her that she should have “declined to receive” the book if it was not properly filled out, that conductors have strict instructions to see that passengers comply with the rules printed on the ticket, and that if she held a ticket issued in the name of “Mr.” H. M. Parish the conductor had no right to honor it for her passage, and also telling her that in order to avoid further trouble she should send the ticket to his office for correction. She never sent the book back- for correction, nor made any attempt to do so, but on the 23d- of August she again took a train at Davenport Centre, which was run by the same conductor that had previously declined to receive the book. He again declined to receive it, and told her that she must get off or pay her fare. She refused to get off, and the conductor put her off. It is very clear from the evidence that he used no more force than was necessary to do so. Her own statement shows that. For being put off of the train upon these two occasions, the plaintiff has brought an action against the defendant for an assault and battery on the part of its conductor. She recovered a verdict at the circuit of §1,000, and from the judgment entered thereon, and from' an order denying a new trial, this appeal is taken.
Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.Amos Van Etten, for appellant.
W. H. Johnson, for respondent.
The action is for an assault and battery on the part of the conductor for ejecting the plaintiff from the defendant’s train. The trial judge charged the jury that she was unlawfully put off, and that the only question for them was the amount of damages which she suffered. Inasmuch as I have reached the conclusion that such instruction was erroneous, no other question need be examined.
On August 6, 1902, the plaintiff got onto the defendant’s train at Hobart for the purpose of riding to Davenport Centre. She refused to pay her fare; that is conceded. Unless, therefore, the book which she then presented to the conductor was one that, upon its face, authorized her to be carried upon such train, the conductor was justified in putting her off. Monnier v. New York Central & H. R. R. Co., 175 N. Y. 281 , 67 N. E. 569 , 62 L. R. A. 357 , 96 Am. St. Rep. 619 . It seems too clear for discussion that upon its face the book did not authorize her to ride upon it. In the month of August it was good only to those to whom it was issued, and it was not issued to her. Being addressed to “Mr.” H. M. Parish, it repels the idea that it was intended for her. And the conductor