Louisville & N.R. Co. v. Hine

• Decision Date: 09 May 1899
• Citation: 121 Ala. 234,25 So. 857
• Parties: LOUISVILLE & N. R. CO. v. HINE.
• Court: Alabama Supreme Court

25 So. 857

121 Ala. 234

LOUISVILLE & N. R. CO. v. HINE.

Supreme Court of Alabama

May 9, 1899

Appeal from circuit court, Limestone county; H. C. Speake, Judge.

Action by Silas R. Hine against the Louisville & Nashville Railroad Company. There was judgment for plaintiff, from which defendant appeals. Reversed.

The complaint claimed $1,000 damages, and its averments were as follows: That on October 7, 1896, "it became necessary for the plaintiff to make, on the defendant's freight train, then near due, a hasty trip from Athens to Decatur stations on the defendant's railroad in this state about fifteen miles apart, on opposite sides of the Tennessee river; the urgent purpose of this trip being to bring from Decatur to Athens the already delayed wedding garments of a lady to whom he was engaged to be married on the next evening. That thereupon, about five o'clock p. m. October 7, 1896, the plaintiff applied to George L. Sherrell, as the defendant's depot, ticket, and telegraph agent at Athens for a regular ticket, and a special permit to go and ride on such freight train to Decatur, then explaining to him the necessity and importance of such trip. That thereupon the plaintiff paid for and received from such agent such ticket signed, and delivered to such agent twenty-five cents for such permit, to be obtained by such agent by telegraph from the defendant's general superintendent, at Nashville Tennessee. That thereupon such agent informed the plaintiff that he need not wait for such permit; that he (such agent) would give such permit, when it came, to the conductor of such freight train when he arrived; such permit being generally, if not universally, given to male passengers, such as the plaintiff, when asked for. That such freight train arrived at Athens about 7 o'clock p. m., October 7, 1896 when the plaintiff, with such ticket, in reliance upon such agent as to such permit, boarded such freight train where it had stoped, over one hundred yards from defendant's depot in Athens, therein took his seat as one of the passengers thereon; and, after such freight train had proceeded several hundred yards on its way to Decatur, the conductor demanded of the plaintiff, in addition to such ticket, such permit, which the plaintiff then did not have, stopped the train, and expelled the plaintiff therefrom, after the plaintiff had informed him of all that was said and occurred between him and such agent about such permit. And that such agent had received such permit from the superintendent before the train arrived at Athens. And the plaintiff avers that, in consequence of all which, he lost the money he thus paid, was grievously disappointed in reference to the preparations for his wedding, was humiliated, was subjected to ridicule, and was subjected to indignity, whereby he suffered damage to the amount of one thousand dollars; hence this suit." To this complaint the defendant interposed the following demurrers: "(1) To that portion of the complaint in these words: 'It became necessary for plaintiff to make on defendant's freight train, then near due, a hasty trip from Athens to Decatur, stations on the defendant's railroad in this state about fifteen miles apart, on opposite sides of the Tennessee river; the urgent purpose of his trip being to bring from Decatur the already delayed wedding garments of a lady to whom he was to be married on the next evening,'-because (a) It is immaterial, on the averments of the complaint, what plaintiff's object or purpose was; (b) the matter stated is not an element of damages for which a recovery could be had against this defendant; (c) said matter is a conclusion of the pleader, and not a statement or allegation of a traversable fact. (2) To that portion of the complaint which seeks a recovery of defendant because plaintiff 'was grievously disappointed in reference to the preparations for his wedding, was humiliated, was subjected to ridicule, and was subjected to indignity,' (a) because, under the averments of the complaint in this cause, said matters are not elements of damages for which a recovery could be had against this defendant; (b) because it is immaterial, under the averments of said complaint, whether the results of plaintiff's failure to obtain passage on said train were as stated in said paragraph or not, not being such character of damages or injuries as would entitle plaintiff to recover therefor. (3) Because, upon the allegations of said complaint, the remedy of the plaintiff, if any, is an action upon the contract, and was not an action sounding in damages. (4) Because, upon the allegations of said complaint, if a remedy exists, it is an action ex contractu, and not ex delicto." This demurrer was overruled, and the defendant then filed the general issue and the following special plea: "Second. On October 7, 1896, there was in existence and in force a rule of the defendant company to the effect that passengers must not be carried on freight trains without permission from the general manager or the superintendent, except as provided for upon the time-tables, and by special instructions that might from time to time be issued; that under this rule, which was known to the plaintiff at the time, the defendant company, before accepting any one as a passenger, required a ticket for passage, with a permit from the general manager or the superintendent to ride upon such particular train, all of which was known to plaintiff at the time, and plaintiff thereupon tendered to the conductor a ticket for transportation from Athens to Decatur, but he did not accompany said ticket with a permit from the general manager or superintendent, nor exhibit to said conductor such permit. Wherefore defendant says plaintiff is not entitled to recover, and puts itself upon the country." The plaintiff moved to strike the second plea from the file. The court granted this motion, and the defendant duly excepted.

The facts of the case, as disclosed on the trial, were substantially as follows: In October, 1896, the plaintiff, Hine, applied to one Sherrell, the agent of the defendant at Athens, Ala., for a ticket and permit to ride on a freight train, then near due, to Decatur, Ala. He was informed by Sherrell that it would be necessary for him to get a permit from the superintendent of that division. The superintendent lived at Nashville, and the plaintiff requested the agent to telegraph to him for such permit, the plaintiff paying for the telegram. The agent promised to deliver the permit to the conductor of the train on which the plaintiff intended to make his journey. It appears from the evidence that one Speake also intended to take this train, and had requested the agent to telegraph to Nashville for a permit allowing him to ride on said train, whereupon the agent telegraphed for a joint permission for Speake and the plaintiff, and delivered the permit to Speake, on his calling and asking for it. Speake testified that, the train being a little late, he decided to postpone his journey, and forgot to give the permit to Hine. Hine boarded the train at the station, and, when it had moved off some four or five hundred yards, was asked by the conductor for his ticket and permit. He produced his ticket, but did not have a permit. He explained to the conductor that the agent had promised to deliver the permit to the conductor of the train, and that he had telegraphed to Nashville for a permit, and that he was very anxious to continue his journey. The conductor replied that he had orders not to allow any one to ride on his train unless they had a permit, and that he would have to put him off. When the train had been brought to a stop, the plaintiff, protesting, got off. No insulting or unnecessarily harsh words were used, nor was there any force or violence done the person of the plaintiff. It appears from the pleadings and the evidence that the object of the plaintiff's journey was to bring from Decatur to Athens the wedding garments of his bride in time for his marriage the next day; and it was shown that the garments were received in time for the wedding, and did not cause a postponement of the marriage. It also appears from the evidence that the defendant had a regulation that no passengers would be allowed to ride on its freight trains unless they had a permit from the division superintendent or the general manager.

The court, in its general charge, among other things, instructed the jury as follows: (1) "If you find for the plaintiff in estimating his damages you can look to the fact, if it be a fact, that he was humiliated by being put off the train; that he suffered ridicule and was subjected to indignity; that he was...