Louisville & N.R. Co. v. Bizzell

• Decision Date: 13 November 1901
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BIZZELL.

30 So. 777

131 Ala. 429

LOUISVILLE & N. R. CO. v. BIZZELL.

Supreme Court of Alabama

November 13, 1901

Appeal from circuit court, Mobile county; W. S. Anderson, Judge.

Action by J. I. Bizzell against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

The original complaint consisted of but a single count, but an additional count was added by way of an amendment. Each count alleges that plaintiff, on November 26, 1897, boarded one of the defendant's passenger trains at Flomaton, Ala., to go to Wilson, Ala.; that he had an unlimited ticket, purchased and stamped July 19, 1897; that he tendered it to the conductor on defendant's train for his passage, but that the conductor refused to receive it, and put plaintiff off at Canoe Station. The original count alleged that the plaintiff was "wrongfully, maliciously, forcibly, and rudely ejected, *** in a rude, insulting, and harsh manner." In the second count, filed as an amendment to the complaint, it is simply alleged that plaintiff was "wrongfully ejected." In addition to pleading the general issue defendant pleaded separately to each count as follows "(2) At the time that said ticket was purchased by the plaintiff, and also at the time that it was presented to the conductor as alleged in the complaint, the defendant had a rule that such ticket should be good for a continuous passage, beginning on the day of the sale only, which said rule was known to the plaintiff, and the defendant avers that such ticket was sold on July 19, 1897. (3) That at the time said ticket was purchased, as well as at the time that it was presented, the company had a rule that tickets of that character should be good for continuous passages, beginning on the day of the sale, notice whereof was indorsed upon the said ticket, and the defendant avers that said ticket was sold on July 19, 1897." The plaintiff demurred to each of these counts upon the following grounds: (1) Said plea neither confesses nor denies the sale to plaintiff and the tender by it to the conductor of an unlimited ticket; (2) because said unlimited ticket cannot be limited by a rule of defendant; (3) because defendant's rule cannot control its contract. These demurrers were sustained, and issue was joined upon the plea of the general issue. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the cross-examination of one William Nabors, who was shown to have been the conductor on the train at the time of the ejection of the plaintiff, and who ejected plaintiff, he was asked by the plaintiff the following questions "Haven't you very frequently, while a conductor on the Louisville & Nashville Railroad, had trouble with passengers?" "Is it not a fact that you were discharged from the Louisville & Nashville Railroad Company because of trouble?" The defendant separately objected to each of these questions, upon the ground that each called for irrelevant and immaterial evidence, the court overruled each of such objections, and the defendant separately excepted. To each of such questions the witness replied in the negative. The plaintiff then asked the witness "if he had not been discharged from the Louisville & Nashville Railroad Company since the occurrence." The defendant objected to this question, as calling for irrelevant and immaterial evidence, and duly excepted to the court's overruling his objection. Upon the witness answering that he and the superintendent of one of the divisions of the Louisville & Nashville had disagreed, and he had left the service of that division, and had gone to work for another division of the Louisville & Nashville Railroad Company, he was then asked the following question: "Was not that difference because of trouble with passengers?" The defendant objected to this question as calling for irrelevant and immaterial evidence. The court overruled the objection and the defendant duly excepted. The plaintiff then asked the witness, by separate questions, if he was not in the habit of using profane language, and if he was not a drinking man. The defendant separately excepted to each of these questions, as calling for irrelevant and immaterial evidence, and separately excepted to the court's overrulings each of such objections.

The defendant reserved a separate exception to each of the following portions of the court's oral charge to the jury: "(1) In addition to the wrongful ejection, it is alleged in that case that it was willfully, maliciously, and forcibly done. Well, those allegations as to the manner of the ejection are put in there for the purpose of entitling the plaintiff to punitive damages. (2) In the first place, if you find from the evidence that the plaintiff was wrongfully ejected,-that is, he had a ticket that entitled him to ride on that railroad car,-and that the conductor refused to let him ride on the ticket, and put him off the train, why, then it was a wrongful ejection. If, in addition to that, he was rude and insulting, why, then, the plaintiff would be entitled to recover additional damages, in addition to what he has actually suffered, by way of punishment, if it was done as alleged in that particular count. (3) Plaintiff alleges that it was willfully and maliciously done. Well 'maliciously,' in the legal acceptation of the term, has somewhat of a different meaning from the ordinary acceptation of the word. Ordinarily, 'maliciously' means ill will. Where a person is said to have 'malice,' in the common acceptation of the term, it means ill will against the person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. This is the legal definition of 'malice,'-a wrongful act, done intentionally, without just cause or...