Louisville & N. R. Co. v. Kay

• Citation: 62 So. 1014,8 Ala.App. 562
• Court: Alabama Court of Appeals
• Decision Date: 22 May 1913
• Parties: LOUISVILLE & N.R. CO. v. KAY.

62 So. 1014

8 Ala.App. 562

LOUISVILLE & N.R. CO. v. KAY.

Court of Appeals of Alabama

May 22, 1913

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by R.E. Kay against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 3 alleges, in effect, that defendant was a common carrier of passengers for hire or reward, and that plaintiff was at defendant's regular depot or station house in the city of Birmingham for the purpose of taking passage on one of defendant's train en route to Montgomery, and then and there applied to defendant's ticket agent, whose name to plaintiff is unknown, for the purchase of a ticket from Birmingham to Montgomery, and that he was informed by said agent, while acting within the line and scope of his employment, that he could not sell him a ticket just at that time, but if he would wait until a little later in the night he would sell him such a ticket, and plaintiff avers that it was late in the night when he applied for such ticket, and that while he was waiting in said waiting room for said ticket agent to sell him said ticket, defendant's night watchman, or other employé of defendant, whose name is unknown to plaintiff, while acting within the line and scope of his employment wrongfully ejected plaintiff from said waiting room, and used abusive words to him in the presence and hearing of divers persons, telling him that he had better get him a bed like other folks, as the waiting room was no place for bums or hoboes. (Here follows catalog of his injuries.) And plaintiff avers that at the time of said wrongful ejectment he was waiting in said waiting room within a reasonable length of time before the said train upon which he was to take passage was due to leave said station.

The question referred to in the second assignment of error is as follows: "In overruling defendant's objection to the following question to the witness Gwin: 'Did the ticket agent make any statement to him about it?' the objection interposed being that it called for immaterial, irrelevant illegal, incompetent, and hearsay testimony." It appears that he went to the station between 10 and 11 o'clock and that the train he expected to take left about 4 o'clock the next morning.

The portions of the court's oral charge which were objected to are follows: "I am submitting this question of a reasonable time to you, gentlemen, taking into consideration the circumstances of this case as you heard them from the witnesses. Under all the circumstances of the case, did he present himself there within a reasonable time before the departure of the morning train for Montgomery, on which he says it was his intention in good faith to become a passenger? If he was there a reasonable length of time under all the circumstances of the case, and if he was ejected from the station by the station master, he would be entitled to recover in this case such damages as he may have sustained."

The seventh assignment of error is as follows: Oral charge excepted to. "If he meant by that to say to plaintiff that he was a hobo and a bum, and that was language calculated to insult in that view of the case, you may assess, in your judgment and your discretion what the law calls punitive damages--that is, damages that undertake to punish for an alleged wrong or wrongful act--provided, of course, that the station master was acting in the line and scope of his employment at the time."

Tillman Bradley & Morrow, and E.L. All, all of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

WALKER P.J.

It is contended for the appellant that the third count of the complaint, upon which alone the case went to the jury, was subject to demurrer, on the ground suggesting its failure to show that the injury complained of occurred within a reasonable time before the departure of the train on which the plaintiff proposed to take passage. It is argued that the averment of the count on this subject was merely a statement of the conclusion of the pleader. If this is conceded, still it does not follow that the count was subject to demurrer on the ground mentioned. Its averments show that prior to the time of the commission of the wrong complained of, the plaintiff was in the waiting room of the defendant's depot at Birmingham, and there applied to the defendant's ticket agent for the purchase of a ticket to the place to which he desired to go, and was informed by the ticket agent that he could not sell him a ticket just at that time, but that if he would wait until a little later in the night he could sell him the ticket desired, that it was late in the night when this occurred, and that while plaintiff was waiting in said waiting room for the ticket agent to sell him the ticket, he was by another employé of the defendant acting within the line and scope of his employment, subjected to the mistreatment which is complained of. These averments...