58 So. 963 | Ala. Ct. App. | 1912
There were two counts to the complaint. In the first count the appellee claimed damages of the appellant because he alleges he purchased of the appellant’s ticket agent at Bessemer a ticket which entitled him to be carried as a passenger on appellant’s train from Bessemer to Sumter; further alleging that, he boarded the proper train of the appellant for' the purpose of going to Sumter, and that after
To the complaint the appellant filed a number of pleas. The trial court sustained the appellee’s demurrer to the sixth plea. We Avill not consider the question as to whether this plea'was subject to the appellee’s demurrer, for the reason that under plea 5, to which the demurrer Avas overimled, the appellant was entitled to make the same defense and introduce the same evidence which it could have made or introduced in sustaining the fifth plea.
To the pleas of appellant the appellee filed several replications, and for the purpose of giving emphasis to our views as to the action of the trial court in overruling the appellant’s demurrer to the replications we will set out two of the pleas (all the pleas set up in varying forms the same defense) and the replications of the appellees to the pleas. In plea 3 the appellant alleges that the appellee, “when said conductor demanded of him a ticket or fare, refused-and failed to present or tender any ticket or fare to said conductor, Avho thereupon ejected the plaintiff (appellee here) from said train, using no more force than was reasonably necessary to eject him in so ejecting him.” In plea 7 the allegation is that the appellee Avas ejected by the con- ' ductor because the' appellee “Avillfully failed to give sard conductor a ticket or pay him any fare” The re
The conductor owed the duty to appellant to take up the ticket from appellee. The appellee, it is alleged in one of the pleas from which- we have quoted, “failed and refused,” and in the other that he “willfully” failed, to
In plea 3 it is alleged that the appellee “failed and refused” to deliver a ticket to the conductor when the conductor called upon him for his ticket. The words “fail” “and refuse” when used in some connections mean the same thing. In others they do not.—Parish v. Wheeler, 22 N. Y. 494;Smtih v. Hance, 11 N. J. Law. 244; Persons v. Hight, 4 Ga. 474. According to Webster, “refuse” means to “decline to accept; to reject.” As the word is used in this plea, it means something more .than passive neglect. The word “failed” as it appears in the plea means that. “Refused,” in the plea, if it has any meaning at all, means that the appellee declined to deliver his ticket to the conductor when called upon to.produce it. 7 Words and Phrases, 6031. The words “willfully failed” as they, appear in the seventh plea mean, that the appellant designedly or.intentionally neglected to hand the conductor his ticket.—Shuman v. State (Fla.) 56 South. 694; 8 Words and Phrases, 7468.
When a plea is demurred to, the allegations of the plea are taken most strongly against the pleader.—King v. Sawyer, 1 Ala. App. 439, 55 South. 320; Grubbs et al. v. Hawes, 173 Ala. 383, 56 South. 227. This rule, which applies to all pleadings, is of especial value when a demurrer is directed against a plea. When a complaint does not state a cause of action and is insufficient to support
When, however, issue is taken upon an immaterial or defective plea, if the facts set up in the plea are established, the defendant is entitled to recover. In other words, when a defendant sets up certain facts as a defense to a suit, if issue is taken upon the plea and the facts are proven as set up in the plea, the defendant is entitled to recover.—Rowe v. Arrington, 1 Ala. App. 633, 56 South. 8.
What we have above said with reference to a plea applies to a replication to a plea. If the facts set up in a replication are not as matter of law a sufficient reply to the plea, nevertheless, if issue is taken on the replication, then, if the facts set up in the replication are established, the plaintiff in the suit is entitled to a verdict. If in the case now under consideration, the appellant had taken issue on the replication, the appellee, by.establishing the fact that he had in his possession a ticket from Bessemer to Sumter and that he had misplaced it, and that the conductor did not give him a reasonable time within which to find it, would have been entitled to recover, although the undisputed evidence might have shown that the conductor when he ejected appellee did not know or have reason to believe that the appellee had a ticket to give him -if he had given him a reasonable time within which" to find and produce it. It is true that the appellant did not take issue on the replication, but filed a rejoiner stating that, when the conductor ejected the appellee, he did not knoAv or have reasons to believe that the appellee had a ticket which he intended to produce in payment of his fare; but by requiring the appellant to file this rejoiner the burden of proof on this particular subject was shifted from .the appellee, where it belonged, to the appellant, where it did not belong.
It is our understanding of the laAV, as Ave have above said, that, Avhen a conductor in charge of a train calls upon a. passenger upon that train for his ticket or fare, he must give the passenger a reasonable time within which to produce the ticket or pay his fare. If he does this and the ticket or fare is not forthcoming, then the conductor may eject such passenger from the train, using no more force than is necessary to do so. If, when a passenger is called upon by a conductor for his ticket or his fare, such passenger has misplaced his ticket or his fare, then, if he notifies the conductor of the situ
The second count cast the burden of proof where it properly belonged, and, so far as that count is concerned, all of the matters set up by the subsequent pleadings can be properly given in evidence under the plea of the general issue. If appellee was unlawfully ejected from the train as averred in the second count of the complaint, then he was not a trespasser on the train when ejected. If he failed or refused, within a reasonable time after being called upon by the conductor to do so, to surrender his ticket, then he was a trespasser at the time of his ejection, and, if he was a trespasser on the train when ejected, it cannot be said that his ejection was unlawful.
The above is not true with reference to the first count, 'certainly so far as its disjunctive averments that the conductor intentionally or willfully ejected appellee from the train was concerned. The mere fact that the appellee had in his possession a ticket entitling him to ride on the train from which he was ejected did not relieve the
We have confined this opinion to a discussion of this subject as it is presented by the replications to the pleas because by the demurrers to the replications the question is broadly presented. In our opinion the trial court committed reversible error in overruling the appellant’s demurrer to the replications to the pleas.
■ Certain rulings of the trial court upon the evidence are also presented to us for review. These questions may not present themselves upon the next trial of the case, and we will not discuss them.
The judgment of the court below is reversed, and the cause remanded.
'Reversed and remanded.