Birmingham Elec. Co. v. Maze

• Decision Date: 27 February 1936
• Docket Number: 6 Div. 908
• Parties: BIRMINGHAM ELECTRIC CO. v. MAZE.
• Court: Alabama Supreme Court

166 So. 50

231 Ala. 539

BIRMINGHAM ELECTRIC CO. v. MAZE.

6 Div. 908

Supreme Court of Alabama

February 27, 1936

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Suit for damages by Minnie K. Maze against the Birmingham Electric Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Huey Welch & Stone, of Bessemer, for appellant.

Ross Bumgardner, Ross & Ross, of Bessemer, for appellee.

GARDNER Justice.

Count 2, upon which, for plaintiff, the case was tried, sought damages suffered by her as a passenger on defendant's car, and was rested upon the theory of relationship of carrier and passenger.

Defendant insists that at the time and place complained of that relationship did not exist, and the affirmative charge should have been given in its behalf. We conclude the undisputed proof supports this contention.

Plaintiff, with her grandchild, boarded defendant's car one summer afternoon at Brighton, only a few miles from Bessemer; the latter being their point of destination. The child was over five years of age, and was undisputedly due to pay fare under the rules of defendant company, duly approved by the Public Service Commission. Plaintiff had a ticket for herself only, and no funds with which to pay fare for the child. The conductor collected her ticket and walked to the end of the car, and then returned to inquire as to the age of the child which was sitting next to the car window. Being informed the child was five years of age, the conductor requested fare. The following, according to plaintiff's testimony, then occurred: "I told him I never had paid fare on her; he said, well I would have to pay it then. I told him I didn't know so much about that, that I didn't have but three pennies, and he could have them if he wanted them. And he said well, you will have to get off: I said I don't know so much about that. And then he told me if I didn't get off he would slap me off. He stopped the car at the A.B. and A. crossing, and when I got up he handed me a car ticket. I said I don't know your name, but I will get your cap number and it was No. 1159. *** The conductor did not touch me. He stopped the car and I got off and that was all there was to it. I don't think either he or I was talking loud enough for the surrounding passengers to hear. He just spoke in a nice common conversation. He said it impudently and caused me humiliation and embarrassment, and liked to have nearly killed me. I had no friends on the car, and I can't know of any one who heard what he said."

It is generally conceded that the relation of carrier and passenger is dependent on the existence of a contract of carriage, express or implied (10 Corpus Juris, 611; 4 R.C.L. p. 1002), and was so expressed in Broyles v. Central of Georgia R. Co., 166 Ala. 616, 52 So. 81, 86, 139 Am.St.Rep. 50, where is the observation: "There can be no dispute, and it has been universally so held, that to create this relation there must be a contract to that effect either express or implied."

Plaintiff was in charge of her grandchild, and, as she entered the car, the law implied a contract on her part to pay the child's fare. Upon her refusal to do so, defendant had the lawful right to eject them both from the train. That this is the generally accepted rule does not here appear to be seriously controverted. 10 Corpus Juris, 733; Braun v. Northern Pac. R. Co., 79 Minn. 404, 82 N.W. 675, 984, 49 L.R.A. 319, 79 Am.St.Rep. 497; Lake Shore, etc., R. Co. v. Orndorff, 55 Ohio St. 589, 45 N.E. 447, 38 L.R.A. 140, 60 Am.St.Rep. 716. As said by the court in Fleck v. Missouri, K. & T.R. Co. (Tex.Civ.App.) 191 S.W. 386, 390, speaking of refusal of the mother to pay fare for her son: "Her refusal to pay fare for her son justified the conductor and auditor in ejecting her from the train. The boy was taken on the train by her, and was in her care and charge. The railroad company could not lawfully transport him without charge, and neither could it put him off the train and leave him with no one to care for him." Many other authorities are found cited in the note to Carpenter v. Trinity & Brazos Valley R. Co., 1 A.L.R. 1449, and to 10 Corpus Juris, 733, and need not here be further enumerated.

But plaintiff insists that she boarded the car in good faith, and as such became a passenger with all the rights and privileges pertaining to that relationship, citing Central of Georgia R. Co. v. Bagley, 173 Ala. 611, 55 So. 894, where there was a violation of a regulation as to a validation of the plaintiff's ticket and wherein the right of recovery was rested upon the improper ejectment from the train, in that she was required to disembark at a highly dangerous place.

Conceding, without deciding, that, under the circumstances above outlined, and the rule of presumption obtaining (2 Hutchinson on Carriers, §§ 997, 998; 4 R.C.L. pp. 1003, 1004), plaintiff presumptively became a passenger upon entering the car, yet that rule of presumption is not conclusive, and is rebutted upon her refusal to pay the child's fare upon demand. 2 Hutchinson on Carriers, § 998. The following from 4 R.C.L. p. 1005: "When, however, a person refuses to pay the proper fare when the same is demanded, he is not lawfully in the vehicle of the carrier, and is not entitled to the rights and privileges of a passenger," is amply supported by the cited cases. Among those here more nearly applicable are: Higley v. Gilmer, 3 Mont. 90, 35 Am.Rep. 450; St. Louis S.W. Rwy. Co. v. Harper, 69 Ark. 186, 61 S.W. 911, 53 L.R.A. 220, 86 Am.St.Rep. 190; Memphis, etc., R. Co. v. Benson, 85 Tenn. 627, 4 S.W. 5, 4 Am.St.Rep. 776; Lillis v. St. Louis, etc., R. Co., 64 Mo. 464, 27 Am.Rep. 255; Garrett v. St. Louis Transit Co., 219 Mo. 65, 118 S.W. 68, 16 Ann.Cas. 678.

The case of Higley v. Gilmer, supra, contains a full discussion of the question, and is rested upon the fundamental principle that the relationship of carrier and passenger is founded on contract, express or implied. As said by the court in its reasoning: "Before a person can become a passenger, he must offer to become one, and this offer must be accepted by the carrier, and unless the fare is waived it must be paid or tendered. *** Now if a person purposes to become a passenger and yet refuses to pay his fare, whereupon the carrier refuses to undertake to carry him, how can there be said to be a contract of carriage between them? There is no mutuality in such a contract. The minds of the parties do not meet." The conclusion was that upon his refusal to pay the fare plaintiff was not rightfully in the conveyance, and the relationship of carrier and passenger ceased to exist.

The concluding language of the opinion in Broyles v. Central of Georgia R. Co., supra, lends support to this...