Alabama G.S.R. Co. v. Tapia

Decision Date24 November 1891
PartiesALABAMA G. S. R. CO. v. TAPIA.
CourtAlabama Supreme Court

Appeal from circuit court, Jefferson county; H. A. SHARPE, Judge.

This was an action by Joseph R. Tapia against the Alabama Great Southern Railroad Company to recover for being wrongfully ejected from one of the defendant's trains. There was judgment for plaintiff, and defendant appeals. Reversed.

Wood & Wood, for appellant.

Bowman & Harsh, for appellee.

MCCLELLAN J.

1. The demurrers to the complaint were properly overruled; and this whether the legal positions taken by the demurrant were abstractly sound or not. Not one of the grounds assigned, nor all of them together, professed to answer, or did in fact answer, the whole complaint, but each of them was addressed to its supposed insufficiency in respect of some one item or specification of damage, and none of them goes to the denial of the whole cause of action relied on by plaintiff. As was said in Kennon v. Telegraph Co., (Ala.,) 9 South Rep. 200: "Causes cannot be determined by piecemeal on demurrer. The pleader must answer the whole complaint, and for all purposes, when he resorts to this mode of defense. When the cause of action is sufficiently stated to authorize a recovery *** of any damages, a partial defense, going to a denial of the right to recover a part of the damages claimed, must be availed of and effectuated by motion to strike out the objectionable averments, or by objections to the evidence, and through instructions to the jury." Hays v. Anderson, 57 Ala. 375; Flournoy v. Lyon, 70 Ala. 308; Daughtery v Telegraph Co., 75 Ala. 168.

2. The gravamen of the complaint is that defendant's conductor wrongfully required and compelled plaintiff, who had taken passage and paid his fare from Eutaw to Birmingham on one of defendant's trains, to leave the cars at Cottondale, an intermediate station, a considerable distance short of his destination, and that in and about requiring plaintiff to thus leave the train the conductor was abusive and insulting to him, using language which was derogatory to his character as an honest man, and which imported a charge that he was attempting to proceed on his journey without paying his fare etc. The evidence was without conflict to the point that soon after passing Tuscaloosa the conductor determined upon putting plaintiff off the train, informed him that he must get off, and directed the flagman to look after him. Plaintiff's testimony tended to show that the conductor told him he must get off at the next station, which was Cottondale. It was also in evidence that the flagman, in the presence of the conductor, and as a part of the altercation as to whether plaintiff had paid his fare, said, "We will put you off," and told the plaintiff, when the latter proffered a check which he claimed the conductor had given him, that it was not his check, and that he would have to pay his fare or get off. The flagman himself testified as follows: "I was in the habit of helping the conductor take up tickets and of putting checks in the hats of passengers. *** I never put any passengers off before unless they were without their tickets. The conductor did authorize me to put them off when they would not pay their fare. When a man is trying to beat the road, we put him off." All this afforded the basis for an inference to be drawn by the jury that the flagman acted in the premises for the conductor, and in execution of the latter's directions; and when this evidence is considered, in connection with the common knowledge that conductors have the superintendence and control of their trains and of all other trainmen, and that it is one of the ordinary duties of flagmen and brakemen to assist and carry out the orders of conductors with respect to refractory passengers, we cannot be in doubt but that all that was said and done by the flagman in this instance, in and about ejecting plaintiff from the train, was properly allowed to go to the jury in support of the averments of the complaint that the conductor wrongfully required and compelled the plaintiff to leave the train; the flagman being the mere instrument for the effectuation of the conductor's orders, and the act done, and the circumstances under which it was done, being as much that of the conductor, and as fully characterized as his act by the attendant circumstances, as if no intermediary or agency had been employed to its consummation. Railroad Co. v. Frazier, (Ala.) 9 South. Rep. 303. Nothing is claimed in the complaint, however, on account of harsh or abusive language on the part of the flagman towards the plaintiff, and the language employed by him while executing the determination of the conductor to put plaintiff off the cars could not be made the basis for the imposition of damages, but it was none the less admissible as a part of the res gestæ of the main fact,-the ejection of the plaintiff,-and as going to show that the plaintiff was required and compelled to leave the train by the conductor, acting as to the final accomplishment of his purpose in this regard through the instrumentality of his assistant, the flagman. The several exceptions reserved in this connection are without merit.

3. A part of the court's general charge bearing upon defendant's liability for language used by the flagman is set out in the bill of exceptions, and proper so, at the instance of the presiding judge; and this very accurately and succinctly guards the jury against the imposition of any...

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