Alabama City, G. & A. Ry. Co. v. Brady
| Decision Date | 13 April 1909 |
| Citation | 160 Ala. 615,49 So. 351 |
| Parties | ALABAMA CITY, G. & A. RY. CO. v. BRADY. |
| Court | Alabama Supreme Court |
Appeal from City Court of Gadsden; John H. Disque, Judge.
Action by Susie Brady against the Alabama City, Gadsden & Attalla Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
Hood & Murphree, for appellant.
Boykin & Brindley, for appellee.
The plaintiff attempted to state her case in several counts, but demurrers were sustained to all except the sixth, upon which trial was had, resulting in verdict and judgment for the plaintiff, and the defendant has appealed.
According to the rules for determining whether a count states a cause of action ex contractu or ex delicto, we experience no difficulty in holding that the sixth count is ex delicto. Wilkinson v. Moseley, 18 Ala. 288; Whilden v Bank, 64 Ala. 1, 38 Am. Rep. 1; Sharpe v. National Bank, 87 Ala. 644, 7 So. 106; Britt v. Pitts, 111 Ala. 402-406, 20 So. 484.
Plaintiff resided with her husband in Gadsden, Ala. The husband, while on a visit in the state of Mississippi, lost his life by accident. N. N. Christopher, acting as agent for the plaintiff and in behalf of the plaintiff, the complaint alleges, "purchased of the defendant, its agent or servant, a ticket marked 'corpse,' and by the terms of the ticket the defendant obligated itself to carry the body of plaintiff's husband from Attalla to Gadsden." The defendant was, at the time named in the complaint, and yet is, a common carrier of passengers, over its electric car line, between Attalla and Gadsden, Ala.
The first insistence of the appellant is that the general affirmative charge by it requested in writing should have been given, because of a variance between the allegata and probata. The precise point is that, whereas the allegations of the complaint are that the ticket was purchased of the defendant, its agent or servant, the proof showed that it was purchased from an agent of the Southern Railway Company, at West Point, Miss., and there was no proof showing that that company was defendant's agent or servant; but the proof showed that the Alabama Great Southern Railroad Company, the company over whose road the corpse was shipped from West Point, Miss., to Attalla, had an arrangement with the defendant, by which it could sell passenger tickets over its own road, with coupon attached good for passage over defendant's line. Christopher, it is true, testified to the purchase of the ticket from the agent of the Southern Railway Company; but he brought the corpse over the Alabama Great Southern Railroad from West Point to Attalla, in the baggage car, on the ticket, the ticket having attached thereto a coupon good for the carriage of the corpse from Attalla to Gadsden. The ticket or coupon was offered in evidence, and on its face it purports to have been issued by the Alabama Great Southern Railroad Company. Furthermore when the ticket was offered to the defendant's conductor at Attalla, with the request that he carry the corpse to Gadsden, he recognized its validity to the extent of 10 cents. Under these circumstances we are of the opinion that there was sufficient evidence to carry the question of the authority of the agent to sell the ticket to the jury. He may have been agent of the Southern Railway Company and, at the same time, have had authority to...
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