69 S.E. 402 | N.C. | 1910
Judgment on demurrer to the complaint. The plaintiff alleged that on 3 August, 1907, he was a passenger on one of defendant's trains, running from Warsaw, N.C. to Goldsboro, N.C. traveling from the former to the latter station; that he tendered the conductor the fare in cash for his transportation, to wit, 68 cents, the distance between 29 miles and the legal rate per mile being 2 1/4 cents; that the conductor declined to receive this, demanded 85 cents, being the fare at the rate of 3 cents per mile, and upon plaintiff's refusal to pay the fare demanded, wrongfully ejected him from the train, to his damage. The defendant demurred upon the following grounds:
1st. Because it appears upon the face of the complaint that the plaintiff did not tender to the defendant the legal rate or charge fixed for passenger fares between the points alleged in the complaint.
2nd. Because it further appears upon the face of the complaint that it does not state a cause of action in this, that the cause of action, as set out in the complaint, is contrary to the statute laws of North Carolina (see section 6, ch. 144, Laws extra session 1908), and that under said statute the plaintiff can not maintain this suit against the defendant corporation.
The defendant, the Atlantic Coast Line Railroad Company, demurs to the second cause of action alleged in said complaint for the (362) reason that it appears upon the face thereof that the plaintiff does not state a cause of action against the defendant, in that it appears upon said complaint that the plaintiff failed to tender to the defendant the proper rate of passenger fare between the two stations alleged in the complaint, and was lawfully and properly ejected from the train for failure to tender same, and that he lost his right, as a passenger upon said train, and also lost his right to return to the same after he had been properly ejected.
This action was begun on 24 September, 1907. His Honor overruled the demurrer and defendant appealed to this Court.
The General Assembly of this State, at its session in 1907, by section 1, ch. 216, provided that no railroad company doing business as a common carrier of passengers in the State of North *295
Carolina should charge, demand or receive for transporting any passenger and his or her baggage, not exceeding in weight two hundred pounds, a rate in excess of two and one-quarter cents per mile. This act applied exclusively to intrastate travel, and excepted certain classes of roads which are not pertinent to the present case. The defendant's counsel in their brief admit that, according to the rate prescribed by that act and for the distance plaintiff desired to travel, the proper fare was 65 cents; so the tender by plaintiff, by this admission, was slightly in excess of the exact amount. The defendant insists, however, that the act of 1907, referred to, was repealed by the General Assembly at the Special Session 1908, ch. 144, and that it was enacted by section 6 of the repealing act as follows: "That no railroad company or agent, servant or employee of any railroad company shall be held liable to any person or found guilty of any offense in any action, civil or criminal, whether heretofore or hereafter instituted or begun, by reason of anything done or attempted to be done in violation of said act mentioned in the preceding sections hereof, or of any provision thereof." It is urged by the defendant that this section 6 is a bar upon the plaintiff to maintain this action and is a grant of amnesty to the defendant for the private wrong done plaintiff, to recover damages for which he had (363) brought this action on 25 September, 1907, several months before the repealing act became effective, to wit, 1 April, 1908. We do not think this contention can be sustained. The wrong done plaintiff was the wrongful expulsion of him from defendant's train. Can the Legislature, by an act passed subsequently to the wrong done and subsequently to the institution of an action in the proper court to redress the wrong, destroy plaintiff's property in his cause of action? In Duckworth v. Mull,
There is a well-recognized and well-established distinction between cases where the cause of action is created by statute and cases where the cause of action rests upon or grows out of the principles of the common law. The former class of cases is considered by this Court in GroceryCo. v. R. R.,
Affirmed.
Cited: R. R. v. Oates,
(366)