Birmingham Electric Co. v. Putman

109 So. 890 | Ala. Ct. App. | 1926

The complaint in this case contains two counts, one charging assault and battery, and the other charging that defendant's servants wrongfully ejected plaintiff from a street car operated by defendant in the city of Birmingham, both counts claiming damages.

The only evidence in the record tending to show an assault, or an assault and battery, is that of the plaintiff, and his witness, Mrs. Hanners, and the two do not materially differ. Plaintiff testified:

"He (the conductor) drug me off the seat, and I walked up to the door, and the motorman opened the door, and taken me by the arm and pushed me off. He (the conductor) did not strike me, only taken hold of me and pulled me out of the seat."

It is not insisted in argument that the conduct of those in charge of the car amounted to an aggravated assault and battery, or that those in charge of the car did anything more than was reasonably necessary to effect the eviction of plaintiff from the car. It is conceded that plaintiff's right to recover in this action depends upon whether or not he was rightfully or wrongfully ejected from the car.

It is further conceded in briefs that plaintiff's standing as a passenger vel non depended upon the validity, at the time, of the transfer ticket presented by him to the conductor of the car from which he was evicted, and that the time limit punched on this transfer had expired. At the time the transfer was presented to the conductor, with the claim that it entitled plaintiff to transportation over the line in question, it appeared on its face that the limited time within which it could be rightfully presented for passage had expired. Was it the duty of the conductor to accept a ticket showing on its face that it was not good after a certain hour then expired?

Appellant insists that the conductor was bound by the letter of the ticket, or transfer; that this was his authority, and only authority, to transport plaintiff; and that this authority was of no further force and validity. On the other hand, the appellee insists that it was the duty of the conductor to accept the transfer in payment for transportation notwithstanding it appeared on its face to be functus officio; accepting and relying upon the alleged statement of plaintiff that he had been unable to secure passage upon a car, or cars, passing within the life of his transfer.

It is conceded that the authorities on the question are in conflict. As affecting the rights of the parties, we quote the following pertinent rule of the Public Service Commission of Alabama:

"(8) A transfer shall be issued to enable a through trip to points not connected by a single line, and it shall have no stop over privileges and shall be void unless used on some car passing the intersection point within the time punched, or on the first car passing thereafter."

The rule of law applicable, which is sustained by the weight of authority, is stated as follows in 4 Ruling Case Law, 1121, § 569:

"The right of a street car company to reasonably limit the time within which a transfer check must be used is well established by the authorities."

Section 5383 of the Code 1923, codifying the act of November 23, 1907, confers upon street car companies the right and authority to adopt rules and regulations for the issue and use of transfer tickets, and in such rule to fix the time limit within which the transfer may be used. Our courts are committed to the proposition that the conductor must rely entirely upon the ticket presented to him to determine his action.

In Montgomery Traction Co. v. Fitzpatrick, 149 Ala. 511,43 So. 136, 9 L.R.A. (N.S.) 851, the rule is stated as follows:

"While it may be admitted that the weight of authority is that the conductor must rely entirely on the ticket in determining his action, and the Court street conductor could not be guilty of a wrong for ejecting a passenger who did not produce a proper transfer [citing many authorities], yet all of the authorities recognize that, while in such case there may not be a right of recovery on the ground of a wrongful ejection, yet there can be a recovery for the failure to fulfill the contract to carry, or for the negligence of the agent in giving the wrong ticket or transfer."

In the cited case the gravamen of the action was the negligence of the conductor in giving the wrong transfer, and the eviction is averred as a consequence; whereas in this case the gravamen of the action is wrongful eviction — not negligence of the company in the issuance of an improper transfer, or a negligent failure to furnish convenient cars upon which the transfer might have been used within its time limits.

A very similar case was before this court in Birmingham Ry. L. P. Co. v. Smith, 14 Ala. App. 264, 69 So. 910, wherein this court recognized and applied the rule that the transfer was not good at a different time or place than that stipulated on its face, holding that, where this appeared on the face of the transfer, there could be no recovery for an eviction by the conductor to whom the invalid transfer was tendered for passage. The cited case follows the rulings of the Supreme Court on the proposition, some of which are therein cited. The case of Birmingham Ry. Light Power Co. v. Yielding, 155 Ala. 359,46 So. 747, and that of Montgomery Traction Co. v. Fitzpatrick, supra, are conclusive to the effect that plaintiff has misconceived his cause of action, if any he has; that the matters he seeks to set up in avoidance of the application of the rule affecting the validity of the transfer cannot be given such effect.

As above indicated, there is no allegation or contention that defendant's servants used great and unnecessary force and violence in effecting the eviction of plaintiff. It does not appear that said servants were rude, harsh, violent, or even discourteous, in forcibly ejecting plaintiff from the car. They had a right to evict plaintiff. Consequently defendant was entitled to the affirmative charge as to both counts in the complaint.

Reversed and remanded.