Kimbrell v. Louisville & N.R. Co.

• Decision Date: 17 December 1914
• Docket Number: 445
• Citation: 191 Ala. 392,67 So. 586
• Parties: KIMBRELL v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

67 So. 586

191 Ala. 392

KIMBRELL v. LOUISVILLE & N.R. CO.

No. 445

Supreme Court of Alabama

December 17, 1914

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Nelson Kimbrell against the Louisville & Nashville Railroad Company, for damages for being ejected from a passenger train. Judgment for defendant, and plaintiff appeals. Affirmed.

Estes Jones & Welch, of Bessemer, for appellant.

Tillman Bradley & Morrow, of Birmingham, for appellee.

ANDERSON C.J.

The defendant's special plea 3 set up an order of the railroad commission authorizing the collection of 15 cents extra from those boarding the train at ticket stations without tickets. It is first urged by the appellant that the order in question does not apply to or include this defendant. It may be true that the preamble of the order names certain lines and omits this one, but the order itself beginning with paragraph 1, says, "That no carrier in Alabama," etc., indicating that it applies to all railroads, whether mentioned in the preamble or not. The order is not only susceptible of this construction, and which we should give it, else it might be an unwarranted discrimination against this and other roads not mentioned in the preamble.

We also think that the commission had authority to make the order under the terms of the act of 1907 (page 711), regardless of section 5563 of the Code of 1907, which fixed the passenger rate. Nor do we think that the act in question violates section 45 of the Constitution of 1901, because broader and not comprehended within the title, as the title is sufficiently broad to cover the act and to authorize everything therein enacted. Neither are we willing to hold that the act is repugnant to the Constitution as an unauthorized delegation of legislative authority. Railroad Com. of Ala. v. Northern Ala. R.R., 182 Ala. 357, 62 So. 749, and cases there cited. The trial court did not therefore err in overruling the plaintiff's demurrer to plea 3.

Since plea 3 was in and set up a good defense, there was but one issue between the parties; that is, whether or not the plaintiff tendered the fare covered by the plea, and, if he did, whether or not the conductor exacted of him a greater sum and caused him to get off the train for failing to pay said excess. There was but one theory upon which the plaintiff could recover under either count of the complaint and that was that the conductor exacted of him 40 cents instead of 28 cents. The plaintiff admitted that he did not give or offer the conductor but 25 cents, which was insufficient, but claims that he was made to leave the train because he failed to pay an additional 15 cents, making 40 cents demanded of him by the conductor. Therefore the only theory upon which the plaintiff could recover upon either count was that he was wrongfully ejected because failing to pay 40 cents demanded of him by the conductor, and this issue was squarely submitted to the jury under the plaintiff's given charge 1, which instructed a finding for the plaintiff if the conductor demanded a 40 cents fare of the plaintiff. The jury found for the defendant, and the effect of which was that the conductor did not demand 40 cents of the plaintiff, as testified to by him and his...