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

• Decision Date: 19 October 1915
• Docket Number: 761
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SMITH.
• Court: Alabama Court of Appeals

69 So. 910

14 Ala.App. 264

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

No. 761

Court of Appeals of Alabama

October 19, 1915

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by L.P. Smith against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Tillman, Bradley & Morrow and John S. Stone all of Birmingham, for appellant.

Jere C King, of Birmingham, for appellee.

THOMAS J.

Action against defendant street railway company as a common carrier for wrongful ejection of plaintiff as a passenger, and appeal by the former from a judgment in the latter's favor.

The complaint, which consisted of but one count, alleged, so far as is material to the consideration of the demurrer filed and urged against it, that:

Plaintiff "boarded one of defendant's street cars at Morris avenue and Twentieth street, in the city of Birmingham, and paid the fare demanded of him by defendant's conductor for transportation on said car, and plaintiff alleges that at the time he paid said fare he requested the conductor to furnish him transfer to defendant's Idlewild line, which transfer was furnished plaintiff by defendant's conductor, and plaintiff alleges that, when the car on which he was riding reached Eighteenth street and Avenue B, he transferred to one of defendant's Idlewild cars, and plaintiff alleges that after boarding said Idlewild car he tendered to the conductor said transfer which had been given him by defendant's conductor, in charge of defendant's Fifteenth street car, and plaintiff alleges that it was the duty of said conductor to accept said transfer. And plaintiff avers that said conductor in charge of said Idlewild car aforesaid wrongfully ejected plaintiff from said car," etc.

Defendant's demurrer to the count, which was overruled by the court raises the point now urged, that, though it is alleged that it was the duty of said conductor to accept said transfer, no sufficient facts are averred to show that it was his duty, in that it does not appear from the averments of the count that plaintiff boarded said Idlewild car at such a time and place that said transfer would entitle plaintiff to transportation on said car, either under the terms of the transfer or under the rules and customs of the defendant.

We are of opinion that the demurrer was not well taken. The complaint alleges that plaintiff requested and received a transfer to defendant's Idlewild line, and that he boarded an Idlewild car and tendered the transfer to the conductor on that car. Presumptively, from these allegations it was the conductor's duty to accept the transfer; since the obligation of defendant, as pleaded, was absolute. If the transfer, which was the contract between the parties, and which the plaintiff pleaded as his right to be on the car, contained a stipulation that it (the transfer) was not good either at the time or place on the Idlewild line that it was tendered, this was a stipulation in the contract for defendant's benefit--an exception or proviso affording a defense for a failure to comply with the contract at that time and place--which, if defendant would avail itself of, it should set up by appropriate pleading, where, as here, the complaint does not disclose it. Fike v. Stratton, 174 Ala. 559, 56 So. 929; Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 545.

Likewise, even though there was no such stipulation in the contract, if the defendant had a rule or custom to the effect that the transfer was not good at the time or place on the Idlewild line that it was presented, the defendant, in order to get the benefit of such rule or custom, would have to plead it, as well as plaintiff's knowledge or notice of it. Birmingham Ry. Co. v. McDonough, 153 Ala. 122, 44 So. 960, 13 L.R.A. (N.S.) 445, 127 Am.St.Rep. 18. Certainly, we think, the duty was not on plaintiff to negative the existence either of such a stipulation or of such a rule or custom.

Plaintiff might have set out in the complaint in full the contract as embodied in the transfer, which, if it had disclosed such a stipulation as that mentioned, would have made the complaint demurrable, unless plaintiff in the complaint had made some allegation to avoid its effect; but plaintiff chose, as he had a right to do, to plead the obligation resting upon defendant under the contract--the obligation which defendant for the consideration named, assumed, by issuing to plaintiff the transfer, the obligation to transport plaintiff over...