Central of Georgia Ry. Co. v. Gross

• Decision Date: 22 April 1915
• Docket Number: 43
• Citation: 68 So. 291,192 Ala. 354
• Parties: CENTRAL OF GEORGIA RY. CO. v. GROSS
• Court: Alabama Supreme Court

68 So. 291

192 Ala. 354

CENTRAL OF GEORGIA RY. CO. v. GROSS

No. 43

Supreme Court of Alabama

April 22, 1915

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

Action by Frances Gross against the Central of Georgia Railway Company. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals, and it transferred the cause under Acts 1911, p. 450, § 6, to the Supreme Court. Affirmed.

The following are the charges referred to:

(K) If you are reasonably satisfied from the evidence that plaintiff tendered to the conductor an amount less than the legal fare to her destination, and no more, then I charge you that the conductor was under no legal duty to accept it, and could lawfully eject plaintiff, and your verdict should be for defendant.

(L) The burden of proof is on plaintiff to reasonably satisfy you by the evidence that she tendered to defendant's conductor the legal fare to her destination, and he refused to accept it, and ejected her, and, unless she has so reasonably satisfied you, your verdict must be for defendant.

(N) I charge you that the retention by the conductor of the ticket tendered by plaintiff, upon which she was not entitled to transportation, was not a legal waiver of his right and duty to demand the payment of the correct fare; and, if you are reasonably satisfied by the evidence that conductor ejected plaintiff because she refused to pay the correct fare, your verdict must be for defendant, although you may believe that the conductor retained and refused to surrender the ticket which plaintiff had given him.

(O) I charge you that before you can find for plaintiff you must be reasonably satisfied by the evidence that the ejection was wrongful, and I charge you that the mere retention by conductor of a ticket tendered by plaintiff which did not entitle her to transportation on defendant's train, although the retention of such ticket may have been wrongful, would not make the ejection of plaintiff for the nonpayment of the correct fare, if you believe she was ejected for such nonpayment, unlawful.

(P) I charge you that the conductor on defendant's train had no lawful authority to waive the payment by plaintiff of the lawful fare, and the retention by the conductor of the ticket by plaintiff did not operate as such waiver.

(F) If you are reasonably satisfied from the evidence that plaintiff tendered to conductor $2, and no more, then I charge you that the ejection of plaintiff was not unlawful.

London & Fitts and W.S. Brower, all of Birmingham, for appellant.

McArthur & Howard, of Birmingham, for appellee.

MAYFIELD J.

The action is by a passenger against a carrier, for being wrongfully ejected.

Plaintiff a negro woman, holding a return coupon ticket only, boarded one of the defendant's passenger trains at the terminal station in Birmingham, to go to Camp Hill, Ala. The return coupon was from Birmingham to Opelika, which was beyond Camp Hill, plaintiff's destination. The ticket in question was one issued by the defendant to its employés only, and issued at much less cost than regular tickets. It was not issued to plaintiff; she having purchased it from the employé or person to whom it was issued. The ticket was not assignable or transferable. When the conductor came around to take up the tickets, he asked plaintiff her name, and, on ascertaining that she was not the person to whom the ticket was issued declined to accept it as her ticket, but kept it; and plaintiff was ordered to get off. The evidence is in conflict as to whether the plaintiff declined to pay the fare when the coupon ticket was rejected. The conductor testifies that she declined to pay the fare, which was $3.21, saying that she had only $1 and was able to borrow another from a friend; and that she did offer to pay $2. The plaintiff testified, however, that she had $4.50 at the time; that she asked to be allowed to pay the fare; that her request was denied, the conductor saying that he had no time to fool with her, and that he had her to get off the car.

The bill of exceptions contains two singular recitals as to the pleadings in the case.

The first is as follows:

"Defendant's attorney asked her, 'Where did you buy this ticket?' Plaintiff objected to the question on the ground that there was no special plea. The court remarked, 'I shall hold under the law as I interpret it, if you undertake to set up as a defense a coupon ticket, the return part being payable to somebody else, you ought to have done it by special plea,' and declined to admit the evidence without the plea. To this ruling of the court, defendant then and there duly excepted. By leave of the court the defendant then filed a special plea."

The second recital is:

"After the argument had been closed, the defendant's counsel stated to the court that the replication, to which the plaintiff's counsel had referred in his argument, had never been marked filed, and that, from the conversation had between counsel and the court at the time the replication was first produced, defendant's counsel understood the court to intimate that the replication was bad in substance, and that the plaintiff's counsel had withdrawn it or did not intent to insist upon it. That the replication had not been marked filed until the day after the testimony had closed, and asked leave to demur thereto, and thereupon the court permitted the defendant's counsel to tender the following demurrer to said replication."

"Plaintiff's counsel then moved the court to strike the demurrer on the ground that it came too late, and the court sustained the motion, and defendant duly excepted."

The plea and replications are as follows:

"Plaintiff boarded defendant's passenger train No. 4 on October 31, 1912, holding the return coupon of an employé's ticket issued to some one else and reading Birmingham to Opelika, and defendant avers that the plaintiff was not an employé of defendant, and that

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