Louisville & Nashville R. R. v. Laney

69 So. 993 | Ala. Ct. App. | 1915

BROWN, J.—

(1) By an act of the Legislature approved November 23, 1907, the courts of this state are authorized to entertain jurisdiction of all causes of action, whether for tort or breach of contract, arising in another state, the act providing: “Such cause of action shall be enforceable in the courts of this state, in any county in which jurisdiction of the defendant can legally be obtained in the same manner in which jurisdiction could have been obtained if the cause of action had arisen in this state.” — Acts Sp. Sess. 1907, p. 67.

The plaintiff’s cause of action arose in the state of Tennessee, and this action was brought in the circuit court of Montgomery county. The appellant now insists that this act was repealed by section 10 of the Code, and the act adopting the Code, approved August 26, 1909 (Acts Sp. Sess. 1909, p. 174).

The manuscript prepared by the Code Commissioner, after it had been revised by a joint committee from House and Senate, was adopted in manuscript form during the latter part of the regular session of the Legislature of 1907, by act approved July 27, 1907, in the second section of which the following provision is made: “No act passed on or after the 9th day of July, 1907, shall be repealed or affected in any manner by the adoption of this Code.” — Acts 1909, p. 499.

The act in question having been passed at a session of the Legislature subsequent to this first act adopting the Code, it is manifest that it is in no way affected by that- act or the Code as thus adopted.

After the Code was printed and bound in three volumes, designated the “Political,” “Civil,” and “Criminal” Code, by the same Legislature at the special session of 1909, it was adopted by act approved August 26, 1909, supra. The second section of the last act above referred to contains the following saving provisions, to-wit: “That all acts of the Legislature * * * passed at the general or special sessions are unaffected by the adoption of this Code.”

(2) The act approved November 23, 1907, passed at one of the special sessions referred to in this last adopting act, is clearly within a class that it was the manifest intention of the Legislature to save, and was not repealed by the adoption of the Code.— State v. Lamar, 178 Ala. 77, 59 South. 473; Larue v. Kershaw Contracting Co., 177 Ala. 441, 59 South. 155. This being true, appellant further contends that this act must be construed in connection with section 6112 of the Code, which fixes the venue in actions for personal injury where the causes of action arise in this state in the county in which the injury occurred or in which the plaintiff resides. The cause of action having arisen out of this state, it is manifest that section 6112 has no application here unless the plaintiff has a permanent residence in some one of the counties in this state in which the defendant does business by agent. Inasmuch as the defendant was relying on this statute to abate the suit and oust the court of its jurisdiction, the burden was on it by appropriate averment and proof to bring the case within the operation of the statute.—Larue v. Kershaw Contracting Co., supra. The defendant’s plea in abatement does not aver that the plaintiff has such residence, and it was subject to the objection pointed out by the demurrers, and the ruling of the trial court thereon was free from error prejudicial to appellant.

(3) The record does not show any ruling or judgment of the court disposing of counts 1, 2, and 3 of the complaint, or the pleas in abatement filed thereto. The only reference made to these counts and pleas is found in the bill of exceptions in these words: “Prior to the filing of count 4, all other counts of the complaint, to-wit, 1, 2, and 3, had been eliminated by previous action of the court, and trial of the cause was had on count 4 alone.”

Therefore, if there was any merit in the defendant’s objections' to the allowance of the amendment or in the motion to strike, there is nothing in the record to support either, and the assignments predicated thereon are not sustained.

(4) If, however, as appears from the arguments and briefs, the court held the defendant’s pleas in abatement good as against the first three counts of .the complaint, because they were in form ex delicto, this ruling was erroneous. — Acts Sp. Sess. 1907, p. 67.

(5) Assuming, therefore, as appellant contends, that the fourth count is a mere repetition of the other counts, its allowance was proper, as the court merely corrected its error by allowing the amendment.—Friedman Bros., et al. v. Cullman B. & L. Ass’n, 124 Ala. 344, 27 South. 332.

(6) Nor was it sufficient ground to refuse the amendment that the first three counts stated a cause of action ex delicto and the fourth was ex contractu, if as appears the subject-matter of the counts was the same.— Code, § 5329; Union Marine Ins. Co. c. Charlie’s Transfer Co., 186 Ala. 443, 65 South. 78.

(7) The fourth count of the complaint, after showing the relation of passenger and carrier between the plaintiff and defendant, and the duty of the defendant to safely carry the plaintiff from East St. Louis, 111., to Montgomery, Ala., avers that: “While plaintiff was on said train at a point near a station on said railroad of defendant known as Franklin, Tenn., the conductor, servant, or agent of the defendant in charge of the train on which defendant was, ejected plaintiff from said train,” etc.

These averments were sufficient to show the defendant’s liability for the acts of its servant or agent in charge of the train in ejecting the plaintiff therefrom, and the demurrers thereto were properly overruled.—A. G. S. R. R. Co. v. Pouncey, 7 Ala. App. 548, 61 South. 601; Lampkin v. L. & N. R. R. Co., 106 Ala. 287, 17 South. 448; Daniels v. Carney, 148 Ala. 81, 42 South. 452, 7 L. R. A. (N. S.) 920, 121 Am. St. Rep. 34, 12 Ann. Cas. 612; Sloss-Sheffield Steel & Iron Co. v. Salser, 158 Ala. 511, 48 South. 374; A. G. S. R. R. Co. v. Brock, 161 Ala. 351, 49 South. 453.

(8) The motion to strike certain portions of the complaint was likewise properly overruled.

“The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully; and, if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. * * * He must not only protect his passengers against the violence and insults of strangers and copassengers, but a fortiori against the violence and insults of his own servants.”—Lampkin v. L. & N. R. R. Co., supra; B. R., L. & P. Co. v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43.

(9) The evidence shows without dispute that the defendant breached its contract, by which it engaged to carry plaintiff to his destination at Montgomery, Ala., “safely and properly, and to treat him respectfully,” and protect him against violence and insults of strangers, copassengers, and of its own servants. The plaintiff was therefore entitled to recover at least nominal damages, and in addition thereto all actual damages resulting as a direct consequence of the breach of the contract, including damages for personal injuries, indignity suffered from abuse and insults from the agents or servants of the defendant in ejecting him from the train, and mental and physical pain and anguish resulting from such breach and the insults and indignities attending the same, as well as all necessary expense incident to plaintiff’s reaching his destination.—B. R., L. & P. Co. v. Glenn, 179 Ala. 263, 60 South. 111; Vinson v. Southern Bell Telephone Co., 188 Ala. 292, 66 South. 100, L. R. A. 1915C, 450; Dickerson v. Finley, 158 Ala. 149, 48 South. 548. These principles justify the refusal of special charges 1, 2, 3, 9, 10, 11, 14, 15, and 17, requested by the defendant.

(10) Charge 8 is in a class that has been often condemned as imposing on the jury the duty of figuring out for themselves what the issues are.—A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.

(11) The evidence shows without room for adverse inference that the plaintiff delivered his ticket to the conductor on the-sleeping car attached to the train that carried plaintiff from East St. Louis to Nashville, and that the sleeping car conductor failed to return the ticket to plaintiff, but gave it to some other passenger; and charges 4, 5, 6, and 7 ignore this evidence and the principle of law applicable thereto holding the defendant responsible for the acts of the conductor on the sleeping car.—L. & N. R. R. Co. v. Church, 155 Ala. 329, 46 South. 457, 130 Am. St. Rep. 29; Nelson v. Ill. Cent. R. R. Co., 98 Miss. 295, 53 South. 619, 31 L. R. A. (N. S.) 689; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Railroad Co. v. Price, 125 Tenn. 646, 148 S. W. 219.

(12) After a careful review of the evidence, we are not able to say that the award of damages was excessive or that the verdict was so palpably opposed to the weight of the evidence as to warrant a reversal of the conclusions of the trial court thereon.— Southern Ry. Co. v. Weatherlow, 164 Ala. 151, 51 Eouth. 381.

Affirmed.