Birmingham Ry., Light & Power Co. v. Jordan

• Decision Date: 22 December 1911
• Citation: 54 So. 280,170 Ala. 530
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. JORDAN.
• Court: Alabama Supreme Court

54 So. 280

170 Ala. 530

BIRMINGHAM RY., LIGHT & POWER CO. v. JORDAN.

Supreme Court of Alabama

December 22, 1911

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Ida Jordan against the Birmingham Railway, Light & Power Company for damages for injury to her while a passenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The first count of the complaint, as amended, was as follows "Plaintiff claims of defendant $5,000 as damages, for that heretofore, to wit, on the 5th day of August, 1907 defendant was a common carrier of passengers by means of a car operated by electricity upon a railway known as the 'East Lake Line'; that on said day, while plaintiff was a passenger on said car, being carried by defendant as its passenger on said car, and was defendant's passenger and said car was at a point on said railway, to wit, at or near Twenty-First street and First avenue, in or near Birmingham, Alabama, a severe shock, concussion, or explosion occurred on said car, and as a consequence thereof another or other passenger or person ran or fell upon or against plaintiff, and plaintiff was thrown or caused to fall. [ Here follows the catalogue of injuries.] Plaintiff alleges that she suffered said injuries and damages by reason of, and as a proximate consequence thereof, the negligence of the defendant in and about carrying plaintiff as a passenger on the occasion aforesaid."

The pleas were the general issue, and two pleas setting up the fact that on August 6, 1907, plaintiff, in consideration of the sum of $18.25 paid her by the defendant, forever released the defendant from any and all claims for damages because of or growing out of, the acts complained of in plaintiff's said complaint. In one of the pleas the release is set out in hæc verba; and defendant further avers that on or about the 10th day of March, 1909, the defendant informed the plaintiff of the said release, its terms and contents, and that plaintiff has never returned or offered to return the said sum of $18.25.

Plaintiff replied, setting up that the release was not executed by her, or by any one authorized to bind her in the premises. This replication was sworn to. Further replying, plaintiff set up that at the time of the accident she had a considerable amount of money on her person, to wit, $18.25, and that said alleged release in writing was in settlement for the said amount of money which plaintiff had on her person and lost by reason of the accident complained of, and for no other reason; that, although plaintiff could write her name at the time of the alleged execution of the said alleged release, she was suffering greatly as the result of her injuries, and was not able to read the said paper, and did not know its contents, but, on the contrary, at the time of the alleged execution of the said paper, it was explained to plaintiff, by the person who acted on behalf of the defendant in procuring the execution of said paper, that the amount paid plaintiff was in payment of money lost as aforesaid, and for nothing else, and plaintiff so understood the effect of said alleged release, and it was so explained to her by the person securing her signature thereto.

Demurrers to this replication raised the point discussed in the opinion.

The following charges were refused to the defendant: "(6) The court charges the jury that, before they can find for the plaintiff, they must be reasonably satisfied from the evidence that the plaintiff was induced to sign the said release by the fraud or misrepresentation of the person acting for the defendant at the time of the signing of the said rules. (7) The court charges the jury that, even if they believe from the evidence that plaintiff, Ida Jordan, was honestly mistaken about the terms of the release, still the court charges the jury they cannot find for the plaintiff, unless the jury are further reasonably satisfied from the evidence that plaintiff was caused to sign the said release by reason of the fraud and misrepresentation of the person acting for the defendant."

Tillman, Bradley & Morrow and Charles E. Rice, for appellant.

Bowman, Harsh & Beddow and F. D. Nabers, for appellee.

ANDERSON J.

The stating part of the complaint (count 1 as amended) merely sets out the relationship of the parties and what happened to the plaintiff, and not what was done or omitted by the defendant as proximately causing the injury. It in no way attempts to set up the quo modo as was done in the case of Birmingham R. R. v. Weathers, 164 Ala. 23, 51 So 303. There the complaint charged that the injuries proximately resulted from the starting of the car, and the court held that, as the plaintiff ascribed injury to a certain cause, to wit, the starting of the car with a jerk or to a sudden increase of speed of same, he should have set up facts showing that it was negligently started with a jerk, or that the sudden increase of speed was the result of negligence, and while the general averment of negligence, in the charging part of the complaint, would under ordinary conditions suffice, that it would not do in said case, as the particular act producing the injury was charged to the defendant; that the plaintiff confined himself to that act or cause and did not rely upon a general negligent failure to safely transport him as a passenger, and he (the plaintiff) was compelled to aver that the act selected by him, as causing his injury, was negligently done. Here the complaint says that the plaintiff was injured in a certain way, but does not ascribe it to any particular act or omission of the defendant, and merely charges negligence generally, and under which any negligence for which the defendant would be answerable in and about carrying the plaintiff as a passenger could be shown. In the Weathers Case, supra, while the charging part of the complaint, was general, it previously predicated the injury to the starting of or the increase in the speed of the car, thus charging something not descriptive of what happened to the plaintiff, but what was done by the defendant, and, notwithstanding a subsequent general charge of negligence, the plaintiff was confined to the act or omission, previously designated; that is, the starting of the car with a jerk, or the sudden increase of the speed of same. As the quo modo was attempted, the complaint should have set out facts showing that the car was negligently started with a jerk, or that the sudden increase of speed was negligently caused, thus holding that, while the general averment of negligence would be sufficient in ordinary cases, it would not supply the omission in said case, because, as the plaintiff specified the act, he had to go further and aver...