McGhee v. Reynolds

• Decision Date: 01 February 1898
• Citation: 23 So. 68,117 Ala. 413
• Parties: MCGHEE ET AL. v. REYNOLDS.
• Court: Alabama Supreme Court

23 So. 68

117 Ala. 413

MCGHEE ET AL. v. REYNOLDS.

Supreme Court of Alabama

February 1, 1898

Appeal from circuit court, Morgan county.

Action by Mariah Reynolds against McGhee and Fink, receivers of the Memphis & Charleston Railroad Company. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

This was an action brought by the appellee against the appellants receivers of the Memphis & Charleston Railroad Company.

The cause was tried at the regular term of the circuit court for Morgan county, on April 20, 1897. At the time of the trial of this cause Hon. H. C. Speake, who was the judge of that circuit, was present and presiding. Subsequent to the rendition of judgment in this case, and later during the term, Judge Speake became sick, and thereupon O. Kyle, Esq. was appointed special judge and presided over the court until its final adjournment. The bill of exceptions in this case was prepared and presented to Judge Speake on the day of the final adjournment of the court, and he signed the bill of exceptions. The facts of the case are sufficiently stated in the opinion.

There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

In this court the appellee made a motion to strike the bill of exceptions from the record in this cause, upon the ground that Hon. H. C. Speake "at the time of signing had no authority in the law to sign said bill of exceptions, because it is not properly a part of the record in this case."

The appellants moved the court to strike from the transcript or record the pages purporting to contain the commission issued to O. Kyle, Esq., as special judge, to hold the circuit court of Morgan county for the week beginning May 3, 1897, and the order of said O. Kyle as special judge finally adjourning the court on May 8, 1898, and further containing the recital of the clerk of the said court that said Kyle took the oath of office and was duly qualified as such special judge. The grounds for this motion were that the matters set forth on said pages are not a part of the record, and the matters and proceedings as there stated are shown to have taken place after the final judgment was rendered in the court below in this cause by the regular judge of the circuit court.

Humes Sheffey & Speake, for appellants.

O Kyle, for appellee.

HARALSON J.

1. Even if the motion to strike from the transcript the pages which show the appointment of a special judge at the term of the court be not granted, it could not be allowed that Judge Speake, who tried this case, did not have the authority to sign the bill of exceptions. It appears he tried it in the earlier part of the term, which began on the second Monday in April, 1897. The governor, by virtue of the act approved February 18, 1895, providing "for the holding of regular terms of the circuit and chancery courts when the judge or chancellor fails to attend," etc. (Acts 1894-95, p. 1135), appointed the Hon. O. Kyle, as special judge to hold the court. The commission recites, that Judge Speake failed to appear. On the 8th of May, 1897, the day fixed by law for the adjournment of the court, as the order recites, Special Judge Kyle entered an order of adjournment, without day. On that day, presumably before the adjournment, Judge Speake signed the bill of exceptions in this case, and it was properly and legally signed. Code 1886, §§ 2760, 2761.

2. There is no misjoinder of causes of action in the amended counts of the complaint. The action is in tort against defendants for unlawfully ejecting the plaintiff as a passenger from their train, and not an action of assumpsit for the breach of a contract. The first count was in tort, and so were the three others added by way of amendment.

3. The first and third counts in the amended complaint set out no more in substance, when stripped of redundant and superfluous matter, which might have been stricken, than that the plaintiff purchased a ticket for a reward from defendants, at Decatur to Huntsville, which authorized her to travel thereon to Huntsville and return to Decatur; and after having traveled on it to Huntsville, she attempted to return to Decatur on defendants' cars, was not allowed to ride thereon, but was wrongfully ejected from the cars, by the conductor of defendants' train. The violation of duty complained of these counts, is the illegal conduct of the conductor, in ejecting plaintiff from the train, and in not allowing her to return on the ticket to Decatur. It is averred in these and the remaining count, that the conductor willfully, violently and forcibly ejected plaintiff from the cars. These are expressions of mere conclusion of the pleader, intended, as made, we take it, in aggravation of damages. The action is not brought to recover for the rudeness and violence of the conductor. Good pleading would require the facts constituting the willfulness and force employed by the conductor to have been set out, if he used more force than was necessary to effect a peaceable and proper ejection of plaintiff.

The terms of the contract as contained in the ticket, are not set out in the counts; but, it is averred in substance, that the plaintiff had purchased a ticket, on which she was authorized to ride, and that she was not allowed to do so, and, notwithstanding she had such a ticket, she was put off the train by the conductor. This showed a good cause of action, and, without more, entitled her to maintain the action, and on proof of the averments to recover some damages.

4. As to the right of a conductor to eject a passenger who is found riding on a train, on a ticket void on its face, it is proper to say, and we may announce, without elaboration, as the proper conclusion sustained by the great weight of authority that the ticket is the sole and conclusive evidence to the conductor of a passenger's right, as such, to be on the train; that the conductor has a right to rely upon the express language of the contract as expressed in the ticket, and when it is void on its face, in default of payment of fare he may deny the right of the passenger to ride on such ticket, and expel him in a proper manner from the train. Mosher v. Railroad Co., 127 U.S. 390, 8 S.Ct. 1324; Id., 23 F. 326, 328; Pouilin v. Railway Co. v. Bennett, 1 C. C. A. 544, 50 F. 496; Hall v. Railroad Co., 15 F. 57; Townsend v. Railroad Co., 56 N.Y. 295; Shelton v. Railway Co., 29 Ohio St. 214; Frederick v. Railroad Co., 37 Mich. 342; Bradshaw v. Railroad Co., 135 Mass. 407; Murdock v. Railroad Co., 137 Mass. 293; Railroad Co. v. Fleming, 14 Lea, 128; Dietrich v. Railroad Co., 71 Pa. St. 432; Petrie v. Railroad Co., 42 N. J. Law, 449; Railroad Co. v. Griffin, 68 Ill. 499...