Vines v. Crescent Transit Co.

• Citation: 85 So.2d 436,264 Ala. 114
• Decision Date: 03 November 1955
• Docket Number: 6 Div. 840
• Parties: Pearl VINES v. CRESCENT TRANSIT COMPANY.
• Court: Supreme Court of Alabama

Page 436

85 So.2d 436

264 Ala. 114

Pearl VINES v. CRESCENT TRANSIT COMPANY.

6 Div. 840.

Supreme Court of Alabama.

Nov. 3, 1955.

Rehearing Denied Feb. 2, 1956.

The complaint is as follows:

'Count A: Plaintiff claims of defendant, Crescent Transit, Inc., a corporation, the sum of Fifteen Thousand Dollars ($15,000.00) for that, heretofore, on, to-wit: January 15, 1952, the defendant, Crescent Transit, Inc., a corporation, was the owner and operator of a transit system and operated passenger buses for hire in Jefferson County, Alabama, within the jurisdiction of this Court, and on said date, and prior thereto, regularly operated a bus for the carriage of passengers between Fairfield, Alabama, and Bessemer, Alabama, and on, to-wit: January 15, 1952, at about 6:00 p. m. plaintiff entered into an implied contract with the defendant wherein and whereby, for a valuable consideration, the defendant impliedly contracted to safely transport and carry the plaintiff from the city of Fairfield, Alabama, to the regular and customary stopping place of defendant's buses on 19th Street at its intersection with 29th Avenue, Bessemer, Alabama. That on said date, pursuant to the said contract plaintiff boarded one of defendant's buses in Fairfield, Alabama, and paid her fare demanded by defendant to be transported under said agreement to the customary stopping place of said bus of defendant on 19th Street at its intersection with 29th Avenue, Bessemer, Alabama. That defendant did not perform or fulfill the contract on its part, namely, to safely transport plaintiff to said point of disembarkation, but, on the contrary, defendant, at about 6:45 p. m., on said date in violation of said contract of carriage operated said bus to a point beyond the usual and customary stopping place and point of disembarkation of passengers at 19th Street and 29th Avenue, Bessemer, Alabama; and to a point, to-wit: thirty feet from and beyond said usual and customary stopping place and point of disembarkation of passengers, in close proximity to an open culvert, which point at which defendant stopped said bus was not a reasonably safe place for disembarkation of passengers, and defendant required plaintiff to there disembark from said bus, and as a proximate consequence of defendant's breach of said contract in carrying plaintiff beyond her point of destination and usual and customary point of disembarkation, and requiring her to alight or disembark at said place in close proximity to said open culvert, she fell into said culvert and was grievously injured about her head, body and limbs, in that: she was thereby contused, bruised, lacerated; that her arm and shoulder were fractured, and she was required to spend much time from her household duties in a hospital, and to expend large sums of money in and about healing her said wounds, and she was rendered permanently disabled, and that she received all of her said wounds and injuries as a proximate consequence of the said breach of implied contract of carriage by defendant.'

'Count B: Plaintiff claims of defendant, Crescent Transit, Inc., a corporation, the sum of Fifteen Thousand Dollars ($15,000.00) for that, heretofore, on, to-wit: January 15, 1952, the defendant, Crescent Transit, Inc., a corporation, was the owner and operator of a transit system and operated passenger buses for hire in Jefferson County, Alabama, within the jurisdiction of this Court, and on said date, and prior thereto, regularly operated a bus for the carriage of passengers between Fairfield, Alabama and Bessemer, Alabama, and on, to-wit: January 15, 1952, at about 6:00 p.m. defendant impliedly contracted with the plaintiff, for a valuable consideration, to safely transport and carry the plaintiff from the City of Fairfield, Alabama, to the regular and customary stopping place of defendant's buses on 19th Street at its intersection with 29th Avenue, Bessemer, Alabama. That on said date, pursuant to said contract, plaintiff boarded one of defendant's buses in Fairfield, Alabama, and paid her fare demanded by defendant to be transported under said contract to said usual customary stopping place, that defendant did not perform or fulfill the contract on its part, namely, to safely transport plaintiff to said point of disembarkation but, on the contrary, defendant, at about 6:45 p. m. on said date negligently stopping said bus for the purpose of plaintiff's disembarkation at a point, to-wit: Thirty feet from and beyond said customary stopping place, which point at which defendant stopped said bus was not a reasonably safe place for disembarkation of passengers, but, on the contrary, was unsafe and dangerous in that said point of disembarkation was in close proximity of an open culvert obscured to plaintiff by darkness, and defendant negligently required or negligently permitted plaintiff to there disembark from siad bus, and as a proximate consequence of the defendant's negligent breach of said contract in carrying plaintiff beyond her point of destination and negligently requiring or negligently permitting her to alight at an unsafe place in close proximity to an open culvert then and there obscured to the plaintiff by darkness, she fell into said open culvert and was grievously and seriously injured about her head, body and limbs in that: she was thereby contused, bruised, lacerated; that her arm and shoulder were fractured, and she was required to spend much time from her household duties in a hospital, and to expend large sums of money in and about healing her said wounds, and she was rendered permanently disabled, and that she received all of her said wounds and injuries as a proximate consequence of the negligent breach of implied contract of carriage by defendant.'

Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellant.

Bainbridge & Mims, Birmingham, and Huey, Stone & Patton, Bessemer, for appellee.

SIMPSON, Justice.

This is an appeal from a judgment of nonsuit suffered by the plaintiff. As amended, the complaint consisted of Counts A and B. The trial court sustained the demurrer to Count A and overruled the demurrer as to Count B. After overruling the demurrer to County B the defendant plead the statute of limitations of one year, Code 1940, Tit. 7, § 26. The plaintiff demurred to this special plea and upon the overruling of the plaintiff's demurrer, the plaintiff took a nonsuit and brings this appeal.

It appears that Count A was construed to be a suit for breach of contract and Count B in tort. We construe both counts to be a suit in contract claiming damages for the breach of an alleged implied contract for injuries resulting during the period when the plaintiff entertained the relation of passenger of the defendant transit company as a common carrier.

The two counts will more fully appear in the report of the case, but we will here state their substance. Count A alleges that the defendant (appellee) entered into an 'implied contract' for a valuable consideration to safely transport the plaintiff from the City of Fairfield to a regular and customary stopping place of the defendant's bus in the City of Bessemer; that the defendant breached this contract by transporting her thirty feet beyond said customary stopping point and required and permitted her to alight at said point, which was not a reasonably safe place for disembarkation of passengers and as a proximate consequence of said breach of contract the plaintiff fell into an open culvert, obscured to appellant by darkness, causing her alleged injuries. Count B charges the defendant with the negligent breach of such implied contract.

From the rulings below and the argument of counsel, it would seem that the court concurred in the contention of the defendant that there could be no cause of action for the breach of the alleged contract by such passenger for personal injuries as alleged unless the defendant was guilty of negligence, in which case the action should be in tort. On this theory the court sustained demurrer to Count A and, considering that Count B was in tort, overruled the demurrer to Count B. As stated, the defendant then plead the statute of limitations of one year to Count B on the theory that the count was in case for the negligence of the defendant and, of consequence, overruled plaintiff's demurrer to this plea which superinduced the nonsuit.

We entertain the view that these rulings were laid in error. Both counts are of the same sort--in assumpsit. They both claim damages for the breach of an implied contract. Count B carried the additional averment that the breach was negligent and the other count, A, only alleges the breach and does not allege in terms a negligent breach.

Both counts are based upon the breach of a contract. The fact that they allege that the contract was implied does not alter their status as for the breach of a contract. The ruling of the court sustaining the demurrer to Count A was predicated on the theory that such a state of facts as therein alleged did not state a cause of action. In this we differ. If the...