Ala. Great Southern Railroad v. Tapia, 94 Ala. 226

Ala. Great Southern Railroad v. Tapia

94 Ala. 226 | Ala. | 1891

McCLELLAN, J.

— The demurrers to the complaint were properly overruled; and this whether the legal positions taken by the demurrant were abstractly sound or not. Not one of the grounds assigned, nor all of them together, professed to answer, or did in fact answer the whole complaint, but each of them was addressed to its supposed insufficiency in respect of some one item or specification of damage; and none of them goes to the denial of the whole cause of action relied on by plaintiff. As was said in Kennon v. Western Union Telegraph Co. (92 Ala. 399): “Causes can not be determined by piecemeal on demurrer. The pleader must answer the whole complaint, and for all purposes, when he resorts to this mode of defense. When the cause of aption is sufficiently stated to authorize a recovery ... of any damages, a partial defense, going to a denial of the right to recover a part of the damages claimed, must be availed of and effectuated by motion to strike out the objectionable averments, or by objections to the evidence, and through instructions to the jury.” — Hays v. Anderson, 57 Ala. 375; Flournoy v. Lyon, 70 Ala. 308; Daughterly v. Telegraph Co., 75 Ala. 168.

2. The gravamen of the complaint is, that defendant’s conductor wrongfully required and compelled plaintiff', who had taken passage and paid his fare from Eutaw to Birmingham on one of defendant’s train, to leave the cars at Oottondale, an intermediate station, a considerable distance short of ‘his destination, and that in and about requiring plaintiff to thus *229leave tbe train the conductor was abusive and insulting to him, using language which was derogatory of his character as an honest man, and which imputed a charge that he was attempting to proceed on his journey without paying his fare, &c., &c. The evidence was without conflict to the point, that soon after passing Tuskaloosa the conductor determined upon putting plaintiff off the train, informed him that he must get off, and directed the flag-man to look after him. Plaintiff’s testimony tended to show that the conductor told him he must get off at the next station, which was Oottohdale. It was also in evidence that the flag-man, in the presence of the cor ductor, and as a part of the altercation as to whether plaintiff had paid his fare, said, “We will put you off,” and told the plaintiff, when the latter proffered a check, which he claimed the conductor had given him, that it was not his check, and that he would have to pay his fare or get off. The flag-man himself testified as follows: “I was in the habit of helping the conductor take up tickets, and of putting checks in the hats of passengers. . . I never put any passengers off before, unless they were without their tickets. The conductor did authorize me to put them off when they would not pay their fare. When a man is trying to beat the road, we put him off.” All this afforded the basis for an inference to be drawn by the jury, that the flag-man acted in the premises for the conductor, and in execution of the latter’s directions; and when this evidence is considered in connection with the common knowledge that conductors have the superintendence and control of their trains and of all other trainmen, and that it is one of the ordinary duties óf flag-men and brakemen to assist, and carry out the orders of conductors with respect to refractory passengers, we can not be in doubt but that all that was said and done by the flag-man in this instance, in and about ejecting plaintiff from the train, was properly allowed to go to the jury in support of the averment of the complaint, that the conchictor wrongfully required and compelled the plaintiff to leave the train; the flag-man being the mere instrument for the effectuation of the conductor’s orders, and the act done and the circumstances under which it was done being as much that of the conductor, and as fully characterized as his act by the attendant circumstances as if no intermediary or agency had been employed to its consummation. — A. G. S. R. R. Co. v. Frazier, 93 Ala. 45.

3. Nothing is claimed in the complaint, however, on account of harsh or abusive language on the part of the flag-man toward the plaintiff, and the language employed by him, while executing thé determination of the conductor to put plaintiff *230off the cars, could not be made the basis for the imposition of damages; but it was none the less admissible as á part of the res gestae of the main fact — the ejection of the plaintiff — and as going to show that the plaintiff was required and compelled to leave the train by the conductor, acting as to the final accomplishment of his purpose, in this regard, through the instrumentality of his assistant, the flag-man. The several exceptions received in this condection are without merit.

A part of the court’s general charge bearing upon defendant’s liability for language used by the flag-man is set out in the bill of exceptions, and properly so, at the instance of the presiding judge; and this very accurately and succinctly guards the jury against the imposition of any damages on account of the mere words of the flag-man. No exception whatever was reserved to the part of the charge thus incorporated in the record, but argument is submitted here against its correctness. For this reason we refer to it here only to observe that, in the first place, the charge is unobjectionable, and, in the next, that, whether objectionable or not, it is not presented here for review.

■4. There was no error in excluding from the jury the testimony of the witness Barnes, with respect to the efforts of the conductor to ascertain whether the plaintiff had paid his fare to Birmingham, as he claimed to have done, to the effect that the conductor “seemed to be anxious to get the matter settled;” that “the conductor’s actions showed that fie was doing his utmost to get the matter settled without further trouble,” and that “in my opinion Conductor Ford conducted himself as well as a man could do in such a case.” These were not short-hand renderings of fact, but patently the opinion and conclusions of the witness upon certain facts, which themselves should haye been adduced in evidence, and upon which the jury alone were to pass judgment and make up their opinion and conclusion as to whether the conductor was at fault in the premises immediately involved. — Tanner v. L. & N. R. R. Co., 60 Ala. 621; Hames v. Brownlee, 63 Ala. 277; Loeb v. Flash, 65 Ala. 526; Baker v. Trotter, 73 Ala. 277; Poe v. State, 87 Ala. 65.

5. The complaint claims damages for that the plaintiff “lost a long time, to-wit, five days, from his business, and was put to great inconvenience and expense; and among other things he was compelled to pay a large amount, to-wit, twenty-five dollars for board and lodging and necessary personal expenses in Cottondale, and for telegrams necessary to-inform his family and business associates of his' whereabouts, and for transportation to his said destination;” and further *231damages for that plaintiff was humiliated and sorely wounded in his feelings and pride, and injured in his reputation by reason of being compelled to leave the train under the circumstances alleged.

Special damages are such as result naturally but not necessarily from the wrong complained of. This principle is aptly illustrated in the present case on the claim for damages which is made to rest upon the necessity, under which the ejection of plaintiff from the train placed him, to send telegrams “to his family and business associates to inform them of 'his whereabouts.” Manifestly this was not a necessary result to plaintiff from being put off the train and forced to remain for a time at Oottondale — not such a result as, in all cases, would ensue from the facts alleged; and yet it. was a natural consequence of those facts, filling the definition of “special damage.” It is a familiar rule of pleading, that before such damages can be recovered, they must be specially alleged, to the end that the defendant, apprised by general averments of damage of a claim of such only as necessarily result from the wrong, may not be taken by surprise on the trial. And upon such special averment there must be strict correspondence of proof; the defendant has a right to assume that that which is thus particularly alleged, and that only, will be attempted to be proved, and to prepare for the trial accordingly. Now, under the averment we have quoted, the plaintiff, against defendant’s objection, was allowed to prove, not that he had “to send telegrams to his family and business associates to inform them of his whereabouts,” but that he sent a telegram to his brother in the city of Montgomery, requesting him to attend to a matter of urgent business, which plaintiff’s enforced delay at Oottondale prevented his attending to in person. It does not appear that there was any necessity for plaintiff to inform his brother of his whereabouts, or that he did in fact so inform him; nor does it appear that plaintiff’s brother was a business associate, or a member of the latter’s family in the usual acceptance of that term, or in the sense implying a necessity that the plaintiff should advise him that he was at Oottondale. After much consideration, accompanied with reluctance to reverse the judgment of the trial court on a point involving so small a part of the damages claimed and found by the jury, we are forced to the conclusion, that the averment of a necessity to acquaint his family and business associates by telegram of his whereabouts, did not apprise the defendant that plaintiff would attempt at the trial to prove that he had by telegram requested his brother to attend to the matter of business in question, and hence that evidence of the last ¡named necessity was improperly received.

*232It would seem, however, that' charge 8 requested by the defendant in this connection, to the effect that there was no evidence in the case of a necessity upon plaintiff to inform his family and business associates of his whereabouts, was properly refused, as, while no testimony was directly adduced in that regard, there was yet room for an inference to be drawn by the jury of such necessity.

6. Charges 8, 5, 6, 28 and 34 requested by defendant,, were properly refused, on the ground that there was evidence before the jury from which they had the right to infer the existence of every fact which they severally would have put the-court in the attitude of declaring found no lodgment in any tendency of the testimony. Charges 3, 5, 6 and 34 respectively assert that there is no evidence that “the conductor-used language derogatory to plaintiff’s character as an honest man,” or that he, “in effect, charged plaintiff with attempting to ride on said train without paying his fare,” or that “the-feelings and pride of the plaintiff" were sorely wounded,” or that plaintiff" “suffered any mental distress or humiliation by reason of being required to get off the train.” Now, there was evidence going to show that the plaintiff had paid his fare, that he asserted that lie had done so, and insisted that he should be allowed :to continue on the train, and protested against being put off. The conductor denied the truth of his statements, and told him he would have to get off", and had him put off, notwithstanding his assertions, protestations and insistence. That he was trying to ride to Birmingham without paying his fare again, was manifest. The conductor, by denying that he had paid, in effect, the jury might have inferred, charged him with attempting to go on without paying; and it will not be contended that such a charge, by whatever language promulgated,.was not derogatory of plaintiff’s character as an honest man. And from the mere fact of plaintiff’s being required and compelled to leave the train, under the circumstances which were shown by one aspect of the testimony, the jury were authorized to infer that his feelings and pride were wounded, and that he suffered mental distress and humiliation. — C. & A. R. R. Co. v. Flagg, 43 Ill. 364; C. & N. W. Ry. Co. v. Chisholm, 79 Ill. 584.

Similarly, charge 26 asserts that there is no evidence that the Hag-man was authorized to put the plaintiff off the train; when, as we have seen, there were many facts and circumstances adduced from which the jury, might ivell have inferred such authority.

For the error pointed out above, in the admission of testimony, the judgment is reversed, and the cause remanded.

Reversed and remanded.