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day. Adopting the usual mode of computa- , at Amo, in Hendricks county, a round-trip tion, excluding the first and including the ticket entitling him to ride on its line of cars last day, we have in April 19 days, in May 31 from said town of Amo to said city of Indays, June 30, and in July 11 days, making dianapolis and return, and took passage on a total of 91 days, showing that the bill was said road on said date, and rode over said presented, signed, and filed on the day follow line of railroad from Amo to Indianapolis, ing the time limited by the court. It was ) and surrendered to the conductor in charge therefore not in the record. Watt v. Board of said train that portion of his ticket which of Commissioners, etc., 133 Ind. 132, 32 N. E. entitled him to ride to said city of Indian575; McFadden v. Owens, 150 Ind. 213, 49 apolis, and retained that portion of said N. E. 1058. We have, however, considered ticket which entitled him to ride on said the instructions and conclude that there was day from said city of Indianapolis to said no error in their refusal.

town of Amo, and on said day plaintiff took Judgment affirmed.

passage on the defendant's cars at the city of Indianapolis for said town of Amo with

said return ticket in his possession; that 37 Ind. App. 420) TERRE HAUTE & I. R. CO. v. PRITCHARD.

while plaintiff was so riding on defendant's (No. 5,649.)

cars the defendant's agents and employés in (Appellate Court of Indiana, Division No. 2.

charge of said train wrongfully and violently March 7, 1906.)

assaulted him, and, although plaintiff tender1. TRIAL-INSTRUCTIONS APPLICABILITY TO

ed to the regular conductor his ticket wbicb PLEADINGS AND EVIDENCE.

entitled him to ride to said town of Amo. Plaintiff alleged in one count that prior to said conductor violently choked him, struck his taking passage on defendant's train he had a return ticket, and

him several heavy blows in the face, kicked that while so riding defendant's agents violently assaulted and eject

him in the head and body, and stopped said ed him, though he tendered the conductor his train and forcibly ejected plaintiff from said ticket. and that he (plaintiff) never at any

cars in the country, at no regular station, time refused to deliver the ticket, and conducted himself in a gentlemanly and orderly manner.

more than 10 miles from said town of Amo; In another count he alleged that before he was

that plaintiff never at any time refused to given an opportunity to produce his ticket the deliver his said ticket and was in all things conductor continued to beat and bruise him in

conducting himself in a gentlemanly and orthe face and body, although plaintiff made no resistance, during which time plaintiff was

derly manner; that by reason of said assault hunting for his ticket, etc. Plaintiff testified the plaintiff was greatly bruised about the that he had the ticket in his possession, but head and face and body and was compelled was unable to find it, and that he offered to

to walk to Plainfield, a distance of about 3 pay his fare, while the conductor testified that plaintiff refused to give a ticket or pay fare.

miles, etc.; and by reason of said assault he Held, that instructions that the fact that a became nervous and prostrated and humilipassenger has a ticket in his possession is in ated, all in the sum of $1,000, etc. The secsufficient to entitle him to passage, unless he tenders the same to the conductor when

ond paragraph is the same as the first, exdemanded, but that, even if plaintiff refused to cept that it alleges that plaintiff was assaultpay his fare or surrender his ticket, the carrier ed "before he was given an opportunity to had no right to use unnecessary force or violence in ejecting him, were not objectionable

produce his said ticket, and the conductor in as not applicable to the issues and evidence.

charge of said train continued to beat and 2. DAMAGES – PERSONAL INJURIES - ISSUES bruise him in the face and body, although AND PROOF.

the plaintiff was making no resistance; that An allegation in a complaint that plaintiff all of said time plaintiff was hunting for his was greatly bruised about the head, face, and body was sufficient to authorize evidence of

ticket, and so stated to said conductor, and particular injuries to the head and face, 'in told him (said conductor) that he had in his cluding injury to the senses of sight and hear possession a ticket entitling him to ride to ing.

said town of Amo, and asked him (said conAppeal from Circuit Court, Hendricks Coun

ductor) to allow him to find said ticket, but ty; Thos. J. Cofer, Judge.

said conductor continued to beat and bruise Action by Del Pritchard against the Terre

him, without allowing him an opportunity to Haute & Indianapolis Railroad Company.

find said ticket, and with great violence ejectFrom a judgment for plaintiff, defendant ap

ed him from said cars." The cause was put peals. Affirmed.

at issue and the trial by jury resulted in a

verdict, on which judgment was rendered in Jas. L. Clark, Jno. G. Williams, and D. P.

favor of plaintiff in the sum of $300. Appel. Williams, for appellant. Brill & Harvey, for lant's motion for a new trial was overruled. appellee.

That action of the court is relied upon for

reversal of the judgment. COMSTOCK, J. Action to recover dam- ! The giving of instruction No. 3 is made ages for the alleged wrongful ejectment of one of the reasons for a new trial. Said appellee from appellant's cars on the 9th instruction reads as follows: "A conductor day of May, 1896. The complaint is in two or agent on a railroad train has a right to paragraphs. The first alleges that the plain- | expel a passenger for the nonpayment of his tiff purchased from the defendant's agent fare or upon bis refusal to deliver his ticket

within a reasonable time, but he has no right to use any more force than is reasonably necessary for that purpose; and in this case, even if you should find that the plaintiff refused to pay his fare or surrender his ticket, the agent of the company had no right to use unnecessary force or violence toward the plaintiff, and if you find that he did use more force than was reasonably necessary, you should find for the plaintiff.” It is contended that the giving of this instruction was error, because "upon a theory not set up in the pleadings nor within the evidence in the cause"; that the complaint proceeds upon the theory that the plaintiff was rightfully upon appellant's train, and was wrongfully ejected; that the instruction is on the theory that he was wrongfully on defendant's train and was properly ejected, except that excessive force was used. We think it proper in this connection to set out instruction No. 2 given. It is as follows: “It is not sufficient that a passenger has a ticket in his possession, but he must offer to surrender it, and actually tender it to the proper conductor when demanded, to entitle the passenger to the rights of a passenger." Appellee testified that he had the ticket in his possession, but was un. able to find it upon demand ; that he offered to pay his fare. The conductor of appellant's train testified that the plaintiff refused to give a ticket, or to pay bis fare. These instructions, we think, are pertinent to the pleadings and within the evidence. Some fault is found with other instructions ; but, considered together, they fairly present the law, and were not prejudicial to appellant.

Objection was made and overruled to certa in questions addressed to W. M. O'Brien, witness for the plaintiff. They were as follows: "(26) What effect upon the hearing

or tingling sound of the ear, such as he show. ed you at the time, have upon the patient's hearing? A. Of course there might be a congestion of the drum, due to the status of blood, or something of that nature that caused a congestion or stopped the circulation to some extent. (27) I will ask if from that time to the present, if a patient had a kind of ringing noise in his ear at the time, if it could be attributed to the injury that you observed there near his ear, which you have described. A. It is probable it could be. * * * (31) I will ask you, if he had never had any bruises or gashes or cuts about the location of his ear until that particular time, and from the time of receiving it that he had a ringing noise in his ear, and was slightly deaf or his hearing impaired, if that could be attributed to the injury you found at that time. A. Yes; I think so." The admission of this testimony is also set out as reasons for a new trial. It is argued that this testimony was inadmissible, because "there is no allegation in the complaint that said injury was received by the plaintiff." The complaint alleges that the plaintiff was greatly bruised about the head, face, and body. This allegation was sufficient to authorize the introduction of evidence of particular injuries to the head and face, includ. ing that to the senses of sight and bearing.

There is evidence in support of the verdict, and we find no reversible error.


ROBY, C. J. (concurring). I think the motion for a new trial ought to have been sustained; but there is evidence tending to support the verdict, and I therefore reluctantly concur.

(184 N. Y. 136)

it in the state of North Carolina. The validHUNTER . MUTUAL RESERVE LIFE ity of said latter judgments as a sufficient INS. CO.

basis for the present recovery is dependent (Court of Appeals of New York. Feb. 27, 1906.) upon a purported service of process upon the 1. INSURANCE - FOREIGN INSURANCE COMPA insurance commissioner of North Carolina as

NIES — WITHDRAWAL FROM STATE – ACTION a representative for that purpose of the de AGAINST COMPANY

fendant, the latter in no other manner having The statute of North Carolina provided as a condition of doing business in the state

been served upon or having appeared in said by a foreign insurance company that it should actions. These original judgments allowed execute a power of attorney authorizing the recovery on account of five contracts of instate insurance commissioner to represent it on

surance issued by defendant, in one case to a service of process in proceedings against it, and provided that such power of attorney

resident of North Carolina while it was doing should be irrevocable so long as any liability business there, and in the remaining cases to of the company remained outstanding. A citi residents, respectively, of New York and New zen of New Jersey holding a policy in a foreign

Jersey, who, long after defendant had atinsurance company assigned the same to a citizen of North Carolina for the purpose of in

tempted to withdraw from business in North stituting suit thereon against the insurance Carolina, as hereinafter stated, assigned their company, a citizen of the state of New York,

claims to residents of said state. It is conwhich, prior thereto, had attempted in good

ceded by appellant that the judgment apfaith to withdraw from the state of North Carolina. Held, that the suit was unauthorized.

pealed from should be affirmed so far as it 2. SAME-REVOCATION OF POWER OF ATTOR

allows recovery upon the judgment under the NEY-EFFECT AS TO NONRESIDENTS. ,

North Carolina policy. But it is claimed that A foreign insurance company doing busi

as to the other purported judgments the ness in North Carolina served a written notice on the insurance commissioner of such state

courts of the latter state did not acquire juriswithdrawing from business in the state and re diction by the attempted service of process, voking a power of attorney given by it to such, and that as to them the judgment before us commissioner, and thereafter did no business should be reversed. We think that the appelin the state, except that premiums were remitted to its home office and losses on policies

lant's contention is well founded. issued to residents of the state were sent from Some of the facts now presented to us and the home office by mail, and in a few instances of the principles applicable thereto were an adjuster appointed to settle the claim with

fully considered by this court in Woodward v. a supposed non resident followed him for such purpose into North Carolina into which state

Mutual Reserve Life Ins. Co., 178 N. Y. 485, he had removed. Held that the revocation of

71 N. E. 10, 102 Am. St. Rep. 519, and it the power of attorney was effective as against will only be necessary now to so far state citizens of New York, who took out policies

the facts presented as may be necessary to in such state after such revocation, and who thereafter assigned their claims arising there

make plain the reason for distinguishing this from to residents of North Carolina for the case from that. For several years before purpose of having judgment taken thereon in March 6, 1899, the defendant had been ensuch state.

gaged in transacting its life insurance busi. 3. SAME. A provision in a statute authorizing a

ness in North Carolina under provision for foreign insurance company to do business in service of process upon a local representative the state on the execution of a power of attor for that purpose. Upon the date mentioned nev to the state insurance commissioner, which

the Legislature of that state adopted a statshall be "irrevocable so long as any liability of the company remains outstanding" in the state,

ute known as the "Willard Law," which does not prevent its effective revocation as to created an insurance department and providnonresident policy holders so as to prevent the ed that no foreign insurance company should subsequent prosecution by the assignees of in

be admitted and authorized to do business surance policies held by such nonresidents of their claims against the corporation by service

until it had complied with certain conditions on the insurance commissioner.

Among these was one to the effect that it

should "by a duly executed instrument conAppeal from Supreme Court, Appellate

stitute and appoint the insurance commisDivision, Second Department.

sioner, or his successor, its true and lawful Action by Wilson R. Hunter against the

attorney upon whom all lawful process in Mutual Reserve Life Insurance Company. From a judgment of the Appellate Division

any action or legal proceedings against it

might (may) be served, and therein should (89 N. Y. Supp. 849, 97 App. Div. 222), en

(shall) agree that any lawful process against tered in favor of plaintiff on submission of

it which may be served upon its said attorney controversy, defendant appeals. Modified.

should (shall) be of the same force and Frank R. Lawrence, George Burnham, Jr., validity as if served on the company, and the and Gordon T. Hughes, for appellant. Paul authority thereof should (shall) continue in Armitage and Albert P. Massey, for re force irrevocable so long as any liability of spondent.

the company remains outstanding in this

commonwealth.” The defendant duly exHISCOCK, J. The defendant is a life in ecuted and filed an instrument in accordance surance company, organized under the laws with the provisions of said act and continued of this state. The judgment appealed from for a time to transact business. awarded recovery upon and for the amount | Upon February 10, 1899, the same Legisof five personal judgments recovered against lature had adopted a statute known as the

"Craig Act," which, in substance, provided 1 outstanding liability upon its part under any that any foreign insurance company desiring contract of insurance, is an agreement for to transact business in the state of North the benefit of and enforceable by a holder Carolina after June 1st then ensuing, must be of a policy issued to him in that state which come a domestic corporation of said state, could not be subsequently canceled or evadand attaching penalties to any attempt to ed by the insurance company so long as the transact business in violation of said pro

liability in behalf of such policy holder convisions.

tinued. The only question which we need May 17, 1899, defendant's board of di discuss is whether the principles of that rectors adopted a formal resolution referring case, or any others invoked by the present to the Craig act and stating its determination plaintiff, prevented defendant from so cannot to comply therewith, but instead to with. celing and revoking its power of attorney draw from the transaction of business in said to the superintendent of insurance under the state, and declaring that the appointment of circumstances disclosed as to bar service the insurance commissioner as an attorney

upon him as its representative in suits upon whom process might be served be “can

upon claims contracted with persons recelled, revoked and annulled." Upon May

siding outside of the state of North Caro20th duly certified copies of this resolution

lina, and in no way belonging or transferred were filed with and in the office of the in

to a resident, of said state until after the

attempted revocation. The learned counsel surance commissioner. Upon May 18, 1899, the defendant did withdraw all of its agents

for the plaintiff largely bases his contention

that defendant did not escape service and from the state of North Carolina, and since

jurisdiction in North Carolina upon two that date has had no agent therein, premiums

propositions. He urges, in the first place, npon policies theretofore issued by it to resi

that it did not, as it claimed to, discontinue dents of said state being remitted to it by

transacting business there, and that for that mail at its home office in New York city

reason its attempted revocation and withwhere the policies and premiums were pay

drawal from the state was ineffective. And, able, and losses upon policies issued by it

secondly, he insists that the strict letter of being paid by checks from said office. Out

its power of attorney to the insurance comside of this, the defendant does not appear to

missioner for service of process provides bave transacted any business whatever in

that such authority "shall continue in force the state since its withdrawal save in four

irrevocable so long as any liability of the specific instances, two of them occurring a

company remains outstanding in said (this) considerable period before and two a con

commonwealth," and that at the time pursiderable period after the purported institu

ported service was made there were existtion against it in the foreign state of the

| ing liabilities outstanding. suits in question. Without going into the de

It may be assumed at once that if defendtails of these transactions, it may be briefly

ant upon a fair construction of language and stated that three of them involved the settle

of its acts did continue generally to transact ment of losses under or readjustment of poli

and carry on the business of insurance in cies issued to residents of North Carolina,

North Carolina after its purported revocawhile the defendant was regularly transact

tion of its power of attorney and withdrawal ing business there, and in the fourth case a

from such state, the latter should be held special adjuster appointed to settle a claim

ineffectual, to prevent a continuance of with a supposed resident of Washington fol the authority of the insurance official to lowed him for such purpose into the state of receive service of a summons. The auNorth Carolina whither he had removed. thorization by the company of service upMore than two years after its above-men- on said official was a condition of its tioned withdrawal from, and revocation of transacting business in said state, and so power of attorney in, North Carolina, resi long as such transaction of business contindents of New York and New Jersey made as ued the company should not be allowed to signment of alleged claims under policies escape the consequences of its agreement by there issued to them to residents of North any deceptive or apparent withdrawal. We Carolina, and upon them four of the original do not, however, think that such was the judgments in question were secured through true character of its acts. The Craig act, to a purported service of process under the which reference has already been made, by power of attorney as, already stated.

its provisions excluded defendant from the Defendant conceding its liability upon the transaction of business unless it was willing judgment, upon the North Carolina policy, to become a domestic corporation. It is we need spend no considerable time in re urged that the Willard act, to which we viewing and restating the decision of this have also referred, was passed subsequently court in the Woodward Case, whereby it and was so inconsistent with the former act was, in effect, held that a stipulation made | as to repeal its prohibitory and penalizing by a foreign insurance company as a condi provisions. We scarcely agree with this artion of doing business in North Carolina that I gument. We think that there was room for process might be served in its behalt upon the provisions of both statutes. The courts some official as long as there might be any of the state where they were passed in effect

76 N.E-68

have so held, which certainly should be à, Conn. Mut. Life Ins. Co. v. Spratley, 172 0. matter of considerable weight with us in S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569; and in this discussion. Debnam V. Telephone Co., St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 126 N. C. 831, 36 S. E. 269, 65 L. R. A, 915; | 27 L. Ed. 222. It would be quite beyond the Layden v. Knights of Pythias, 128 N. C. 546, spirit of those decisions to hold, and we can39 S. E. 47. But whether this is so or not, not believe that it was the further policy of the defendant apparently in good faith did such legislation to create and perpetuate a regard the provisions of the Craig Act as local forum to which under guise of an asdriving it from the state, in the absence of signment to some resident, nonresidents of its willingness to be incorporated as a do far distant states might fiock for the purpose mestic corporation, and its acts then and of instituting litigation upon contracts issued thereafter performed indicate an intention to them at their homes, against a corporation actually and in good faith to cease doing there readily subject to service and which business there, and to our minds the facts long before had attempted in good faith to agreed upon do not show any subsequent withdraw from the jurisdiction thus hunted modification of this intention. It had al out. ready issued policies and contracted liabili Holding this view, we are not willing to ties in the state which could not be ignored. decide that defendant's power of attorney It dealt with these liabilities so far as it was irrevocable as against the four foreign could from its office in New York and the claims upon which recovery was had in specific acts which are detailed in the sub North Carolina. It is true that, as the stat. mission arose in connection with the settle | ute required, said power of attorney upon its ment and treatment of old liabilities and face was irrevocable so long as any liability old business. We do not think that there was of the company should remain outstanding any such continuation of an ordinary, sub in said state. But it is well settled that a stantial and active insurance business as power of attorney, although by its literal would be necessary to keep alive the power terms irrevocable, may be revoked, unless of attorney within plaintiff's contention up- some interest or right founded or created upon this point. Knights Templars' Indemni on the faith thereof requires its perpetuation ty Co. v. Jarman, 187 U. S. 197, 204, 23 Sup. and continuance. Hunt V. Rousmanier's Ct. 108, 47 L. Ed. 139; Frawley v. Penn. Adm'r, 8 Wheat. (U. S.) 174, 5 L. Ed. 589; Casualty Co. (C. C.) 124 Fed. 259; Doe Knapp v. Alvord, 10 Paige (N. Y.) 205, 40 v. Springfield Boiler Co., 104 Fed. 684, Am. Dec. 241; Story on Agency (3d Ed.) $ 44 C. C. A. 128.

476. The citizens of North Carolina who We, therefore, pass to the consideration of had taken contracts from the defendant plaintiff's second contention based upon the while it was there doing business in reliance wording of the power of attorney. In so upon this power of attorney which had been doing, and in construing this instrument, and executed for their protection under the redetermining whether defendant might revoke quirements of the statute were entitled to it and escape from its consequences as to have it remain unrevoked as provided by its the majority of the judgments involved in terms. As we have already seen, they are this action, we should keep in mind the pol to be regarded as having made their conicy which led to the adoption of the statute tracts upon the faith of it, and as against under which it was executed. This policy, them defendant could not escape from its briefly stated, involved and voiced the deter consequences. But the plaintiffs in the North mination upon the part of the state that it Carolina actions, who secured their claims would not allow a foreign insurance company from nonresident assignors, occupied no to exercise the privilege of doing business such position. These claims under contracts within its limits without securing to its citi executed in other states cannot by any poszens, who might there be dealt with, an ar sibility be regarded as having been contracted rangement by which they might institute ac or acquired in reliance upon this provision tions and enforce their contracts and policies for service within the state of North Caroat home and without being driven into some lina. The assignees, who saw fit to embark foreign state where the company might have upon the acquisition of foreign claims, did its origin and principal place of business. not do so in innocent reliance upon the right Statutes requiring the execution of some such to bring such suits in their own state, for agreement by foreign corporations as is in long before they began the accumulation of voked against the defendant here, have al claims against the defendant it bad formally, ways been regarded as primarily designed for and, as we believe, in good faith, withdrawn the protection of the citizens of the state en from the state where they lived and given acting the legislation and who might acquire formal notice of its revocation of the power rights under contracts executed with them of attorney. They did not acquire any such or for their benefit while they were such citi- right to enforce jurisdiction in the courts of zens. Such was the underlying principle and their own state against the defendant as view which led to the decisions in the Wood makes it in any way inequitable or unjust ward Case, in La Fayette Ins. Co. v. French, that the power of attorney should be revoked. 18 How. (U. S.) 404, 15 L Ed. 451; in They are not of the class for whose proiec

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