69 So. 910 | Ala. Ct. App. | 1915
Action against defendant street railway company as a common cárrier for wrongful ejection of plaintiff as a passenger, and appeal by the former from a judgment in the latter’s favor.
The complaint, which consisted of but one count, alleged, so far as is material to the consideration of the demurrer filed and urged against it, that: Plaintiff “boarded one of defendant’s street cars at Morris avenue and Twentieth street, in the city of Birmingham, and paid the fare demanded of him by defendant’s conductor for transportation on said car, and plaintiff alleges that at the time he paid said fare he requested the conductor to furnish him transfer to defendant’s Idlewild line, which transfer was furnished plaintiff by defendant’s conductor, and plaintiff alleges that, when the car on which he was riding reached Eighteenth street and Avenue B, he transferred to one of defendant’s Idlewild cars, and plaintiff alleges that after boarding said Idlewild car he tendered to the conductor said transfer which' had been given him by defendant’s conductor, in charge of defendant’s Fifteenth street car, and plaintiff alleges that it was the duty of said conductor to accept the transfer. And plaintiff avers that said conductor in charge of said Idlewild car aforesaid wrongfully ejected plaintiff from said car,” etc.
We are of opinion that the demurrer was not well taken. The complaint alleges that plaintiff requested and received a transfer to defendant’s Idlewild line, and that he boarded an Idlewild car and tendered the transfer to the conductor on that car. Presumptively, from these allegations it was the conductor’s duty to accept the transfer; since the obligation of defendant, as pleaded, was absolute. If the transfer, which was the contract between the parties, and which the plaintiff pleaded as his right to be on the car, contained a stipulation that it (the transfer) was not good either at the time or place on the Idle-wild line that it was tendered, this was a stipulation in the contract for defendant’s benefit — an exception or proviso affording a defense for a failure to comply with the contract at that time and place — which, if defendant would avail itself of, it should set up by appropriate pleading, where, as here, the complaint does not disclose it .—Fike v. Stratton, 174 Ala. 559, 56 South. 929; Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 545.
The court should have permitted defendant to prove the contents of the transfer, it having been shown that it had been destroyed, and to show, if it could, that the transfer, according to its terms, was not good at the place presented by plaintiff, in that said place was not a transfer point.
Without deciding whether or not the charge is faulty, which is unnecessary to a disposition of the case, since the judgment has to be reversed, as seen, for other reasons, we would suggest that on the next trial the court use the word “judgment” in place of the word “discretion,” as employed in the charge. This would clear the charge of all criticism.—Kansas City, Memphis & Birmingham R. R. Co. v. Thorhill, 141 Ala. 235, 37 South. 412; Birmingham Ry., L. & P. Co. v. Humphries, 171 Ala. 291, 54 South. 613; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 South. 733.
What we have said sufficiently disposes of all the questions raised on this appeal.
For the error of the court in refusing to let defendant prove the contents of the transfer, the judgment is reversed, and the cause remanded.
Reversed and remanded.