(after átating the facts.) 1. No objection was made and exception saved at the trial to the portion of the testimony of W. H. Rankin which appellant now urges as -error. We will therefore not consider that question.
2. A street railway may make and enforce reasonable rules to facilitate its business, and to protect itself from fraud and imposition. So long as these rules are not inconsistent with the rights of the public to transportation over- the company’s road, and do not impose unnecessary and unreasonable burdens upon them, they will be enforced. Booth, Street Ry. Raw, § 237; Nellis, Street Surf. Railroads, p. 440, § 8; Clark’s Accident Raw, § 81. A rule requiring -transfer tickets showing the right of passengers who pay a single fare to fide upon the different cars and to various points on the company’s road is reasonable. Where a passenger on a street car pays his fare, and calls for and receives a transfer ticket, which is void upon its face, and which is refused when presented to another conductor, he nevertheless has a valid contract with the company to be carried to his place of destination, and the company in expelling him from its car for a refusal to pay additional fare violates its contract, and is liable in damages for its breach. Thus far there is practical unanimity in the adjudications. But as to the measure of damages for such breach, and whether the action shall sound in tort for wrongful expulsion or be confined solely to one ex contractu, there is great diversity of opinion. See Clark’s Accident Raw, § 83, p. 196, and O’Rourke v. Street Ry. Co., 103 Tenn. 124, where the authorities pro and con are cited and reviewed. Mr. Freeman, in his exhaustive notes to Commonwealth v. Power, 41 Am. Dec. 465, states the rule upon the subject -as to commercial railways as follows: “If, by a mistake of one of the officers of the company, he is not furnished with a proper ticket or check evidencing his right to be carried to his destination, his right nevertheless remains, and if for want of the requisite evidence of that right another servant of the company refuses to carry him without another payment of fare, the contract is broken, and he has a complete right of action for all damages resulting from such breach. But, as the rule requiring him to show a proper ticket or to pay his fare, if de~ *164manded, is a reasonable one, he will not be justified in refusing compliance with it, and in remaining in the car until forcibly expelled, merely for the purpose of heaping up damages. He should either pay the fare demanded or quit the train; and in either case we think he ought to recover as part of his damages reasonable compensation for the indignity put upon him by the company through the default of its servant. But he can add nothing to his claim by remaining in the car until forcibly ejected, for the rule under which he is ejected, being reasonable, is a complete protection to the company and its servants against the recovery of any damages, directly or indirectly, for an assault made necessary by his own obstinacy, if no more violence than is required for his ejection is used.”
This rule is equally applicable to street railways, and is, we believe, based upon better reason than 'those authorities which hold to a different view. Judge Taft in Pouillin v. Canadian Pac. Ry. Co., 52 Fed. Rep. 197, says: “The law settled by the great weight of authority is that the face of the ticket is conclusive evidence to the conductor of the- terms of the contract of carriage between the passenger and the company. The reason for this is found in the impossibility of operating railways on any other principle, with due regard to the convenience and safety of the rest of the traveling public, or the proper security of the company in collecting fares. .The conductor can not decide from the statement of the passenger what his verbal contract with the ticket agent was, in the absence of the'counter evidence of the agent. To do so would take more time than a conductor can spare in the proper and safe discharge of his manifold and important duties, and it would render the company constantly subject to fraud and consequent loss. The passenger must submit to the inconvenience of either paying his fare or ejection, and rely upon his remedy in damages against the company for the negligent mistake of the ticket agent.” See also, for a cogent statement of the reasons for the rule, Bradshaw v. South Boston R. Co., 135 Mass. 407.
The strongest cases we have read, towit: O’Rourke v. Citizens St. Ry. Co., supra, and Lawshe v. Tacoma Ry. & Power Co., 29 Washington, 682, holding that, under circumstances similar to the case at bar, the passenger may refuse to pay his fare, suffer ejection, and then sue the railway company for the wrong*165ful expulsion, are not in conflict with the rule we have announced as to the liability of the railway company. They differ only as to the nature of the action and the consequent measure of damages. It follows that under either rule the appellee was a passenger at the time of the alleged assault upon him. Under the rule we have announced, had there been nothing more than a refusal to accept the transfer ticket, a demand for additional fare, and upon refusal an expulsion, without using more force than necessary to accomplish the purpose, the railway company would have been liable only for a breach of its contract. But, under the allegations of the complaint and the testimony on behalf of appellee, there was a wilful breach of the contract under such circumstances of insult and aggravation as to constitute a tort.. Fordyce v. Nix, 58 Ark. 136. These allegations, if true, would render appellant liable, not only for actual and compensatory, but also for punitive, damages.
While we do not find the first instruction obnoxious to the particular objections urged against it in brief of counsel, the latter portion of it was erroneous. It told the jury that, if appellee became a 'passenger, he “was entitled to courteous treatment;” and if he was without fault, and “not treated with care and courtesy, he was entitled to recover.” The court should have defined the duty of appellant to appellee to use ordinary care to protect him, .if he became a passenger, from insults and injuries, and should have told the jury that in case appellee was a passenger, if the conduct of appellant’s conductor towards him, as alleged in the complaint, was established by the evidence, it would render appellant liable. The instruction allowed the jury to generalize and speculate as to what would be “courteous treatment” and left them to say what “care and courtesy” was due from appellant to appellee. That is too uncertain. Jurors might differ greatly in their ideas of what would be “courteous treatment.” The law fixes the. standard, and defines the measure of appellant’s duty in such cases. The learned counsel for appellant has made no criticism of the instruction upon this ground. He seems to concede that, if appellee was a passenger (which the jury found), the conduct of the conductor towards him would render appellant liable, and this is true; for, if appellee was a passenger, the conductor had no right to insult him by saying, as he says he did: *166“It looks 'to me like you are trying to beat anyway.” Therefore we will treat the error pointed out as non-prejudicial; but we call attention to it so that a correct declaration may be given upon a new trial. The cause must be reversed for an error hereafter indicated.
There was no error in the second and third instructions given at the request of appellee. In the fourth the meaning is not clearly expressed, but it doubtless intended to tell the jury that if appellee boarded appellant’s car with a transfer ticket which he believed to be valid, but which as a matter of fact, turned out to be void, he would still be a passenger if he intended to pay his fare. The instruction was abstract and prejudicial. There was no proof that appellee intended to pay his fare, if the transfer ticket was invalid. . On the contrary, the undisputed evidence is that he “was not going to pay another fare.” Under the rule we have announced supra, appellee was a passenger if he had paid his fare which entitled him to a proper transfer ticket, even though the ticket given him was invalid, provided he presented such transfer ticket in proper time and on the proper car He was a passenger under such circumstances, whether he intended to pay an additional fare or not in case the transfer ticket given him was refused. The only contention of appellant in the lower court, as shown by the pleadings and proof, was that he had paid his fare and had received a transfer ticket which he presented at the proper time and on the proper car, and that this established between him and appellant the relation of passenger and carrier which entitled him to recover for injuries alleged. On the other hand, it was the contention of appellant that appellee had not paid his fare, and had not received a transfer ticket which he presented at the proper time and place, but that appellee was attempting to defraud the company by offering and claiming the right to ride on a spent or bogus transfer ticket, and appellant adduced evidence tending to prove its contention. Appellant was therefore entitled to an instruction presenting this theory to the jury. • The court was asked to give such an instruction in appellant’s request number eight. But the court refused it as asked, 'and modified it by,allowing the jury to find that, if appellee had not paid his fare in the manner indicated in his complaint and proof, he might have intended to pay it in some other way. This *167was not only without evidence to support it, but, as we have shown, there was positive and undisputed evidence to the contrary. Appellant’s request for instruction number 8 was correct as asked, and should have been granted without modification.
3. The remarks of counsel for appellee, both in the opening and closing argument, were an effort to place before the jury as evidence indirectly by argument that which could not be produced directly in the proof. The remarks were highly improper. But, inasmuch as the cause must be reversed for the errors indicated in the instructions, it is unnecessary to determine whether or not the remarks constituted a reversible error. It is safe to assume that they will not be repeated.
Reversed and remanded for new trial.
Hile, C. J., not participating.