14 Ga. App. 619 | Ga. Ct. App. | 1914
Tilomas brought an action for $2,000 damages, on account of his ejection from a passenger-coach of the railroad company. The petition alleged, in substance, that the plaintiff boarded the defendant’s passenger-train at Uptonville, a station on its railroad, and paid to the conductor of the train the fare demanded by the conductor for his passage to OfEerman, another station, and that afterwards, at an intermediate point, the same conductor demanded a ticket from him, and disputed his reply that he had paid his fare in cash, called him a “hobo,” accused him of trying to “beat” his way, and used “considerable language in repeating said charge of plaintiff being a hobo and attempting to dishonestly ride on said train; that as the said train stopped at Black-shear, said conductor put his hand on petitioner’s arm and said, ‘Come, follow me off this train, or pay your fare as you, ought to do,’ saying ‘You get off now or I will have the marshal put you off,’ driving' him off of said train; that several passengers were within hearing of the language of the conductor; that the said treatment, by word and gesture, was outrageous in the extreme, and deeply mortified petitioner’s feelings and pride,” and that “through said treatment he has been damaged in the sum of
We do not think the court erred in overruling the special demurrer to the petition. The grounds of the demurrer were as follows: "(1) Because plaintiff does not allege whether or not he was given a receipt for the amount paid by him to conductor Aeree on the occasion referred to. (2) Because plaintiff, if he was given a receipt for the amount paid by him to conductor Aeree, does not attach a copy thereof to his petition, or set out in substance the contents of such receipt. (3) Because plaintiff does not specify in the 4th paragraph the words used or the substance of the words used, where it is alleged that the conductor used ‘considerable language in repeating said charge of plaintiff being a hobo.’ (4) Because plaintiff does not specify or allege why or in what manner the ‘treatment bjr word and gesture’ was outrageous or in any way offensive or reflecting on the plaintiff. (5) Because the allegation in the 4th paragraph, that the treatment by word and gesture was outrageous in the extreme toward plaintiff, states his conclusion without setting out the facts on which it is based, and should be stricken. (6) Because plaintiff alleges no facts to demonstrate how he was damaged in the sum of two thousand dollars, or in any other amount.”
The allegation that the conductor used “considerable language in repeating said charge of plaintiff being a hobo” (construing it in accordance with the rule that pleadings are to be construed most strongly against the pleader) meant nothing more than .that the conductor’s charge that the plaintiff was a' “hobo” was several times repeated; and since the language used did not suggest any inference that any term of opprobrium other than that of being a “hobo” was used, the amendment suggested by the demurrer could not have been of particular benefit. Mere conclusions of the pleader should of course be stricken, but it is permissible to characterize the nature and effect of any given set of facts, after the facts are themselves fully stated; and for this reason we think .that the plaintiff was justified in characterizing the treatment which he alleged he had received as “outrageous in the extreme” and “deeply mortifying to his feelings;” and that the court did not err in overruling the 4th and 5th grounds of the special demurrer.
The 6th special ground of the demurrer, in which complaint is made that “the plaintiff alleges no facts to demonstrate how he was damaged in the sum of $2,000, or in any other amount,” is clearly without merit, because, under the allegations of the petition, the amount recoverable, if the plaintiff was entitled to recover anjdhing, was to be determined, not by the court, but by the jurjq in the impartial exercise of their enlightened conscience; and in a case of this kind the amount thus laid.as damages is not material except as fixing a limit to the amount claimed, beyond which the plaintiff can not recover.