McGhee v. Reynolds

•SHABPE, J.- On the former appeal count 2 of the complaint was construed as containing no cause of action except for the alleged refusal of defendant’s agent at Huntsville to stamp, date and sign the plaintiff’s return trip coupon so as to make it available for her passage in returning to Decatur, and this court held that notwithstanding such refusal was wrongful, the coupon lacking the required indicia of her right [550] to use the ticket for passage, gaye her no right to he carried' as a passenger and consequently- -no remedy for her ejection from the train.—McGhee & Fink, Receivers, v. Reynolds, 117 Ala. 413. Amendments made since' the cause was remanded have stricken from the complaint all it then contained except count 2 and have added counts numbered 4 •and 5. Count 4 -sets out a ticket which stipulates for plaintiff’s passage 'from Decatur to Huntsville and return subject to conditions among which is the following: “3rd. That it is not good for return passage unless the holder identifies himself as the original purchaser ■ before the authorized agent of Memphis & Charleston Railroad at point named above, and when officially signed and dated in ink and duly stamped by -said agent this ticket shall then 'be' good only for .a continuous passage to starting point as last named above only on next passenger train leaving after date of -said identification, but in' no case later than date cancelled in margin.” It avers in 'substance that plaintiff could not read but that she was informed by the Decatur agent who sold it that before she could return on it “she would have to take it to the ticket agent of defendants at Huntsville, Alabama, and have him fix it,” that she presented it to the Huntsville agent and requested him to fix it so that she could return to Decatur,- and averments are made as follows: “The said agent took said ticket, looked at it, informed plaintiff that it was already fixed, that there was nothing wrong with said ticket, that the same was 'all right, and that she could go from Huntsville to Decatur on said ticket without fixing it any -further. Plaintiff avers that she had no actual knowledge to the contrary and that by reason of the wanton, willful -or gross negligence of said ticket agent in n'ot doing his -duty and fixing said ticket so that plaintiff could return thereon as a passenger on defendants’ cars to Decatur, Alabama, plaintiff when she attempted to do so, was expelled by the conductor of said train, Who wa-s the authorized agent of defendants at the time acting as defendants’ agent and within [551] the scope of his authority as such, in a rude, rough and angry manner and with words of insult in a coarse and brutal manner, so that plaintiff suffered much pecuniary damage and physical pain and mental anguish. Said ejection took place about two miles from Huntsville, Ala.; the weather was hot and the roads dusty and plaintiff was physically ill and in this condition by reason of said ejection which was caused 'by ' said ticket agent not doing his duty as aforesaid, plaintiff was compelled to walk hack to Huntsville.” 'Then follow® a further averment to effect that on returning to Huntsville after being expelled from the train plaintiff again requested the Huntsville agent to fix the ticket so that she could use it according to its terms and offered to identify herself by a witness as the-purchaser, and that the agent again refused to fix it placing his refusal on the ground that her name was not written on it, and that in so refusing he cursed and swore in plaintiff’s presence in a rude and angry manner, “wherefore plaintiff says that by reason of the wanton, Avillful, intentional or gross negligence of defendants’ said agent, she could not travel on said ticket, she was put to pecuniary expense and suffered much physical trouble and mental anguish to her damage,” etc. From these averments it appears that the injuries for which damages are claimed in this count including plaintiff’s forcible ejection from the train are all averred to have resulted from the agent’s failure and refusal to sign, date and stamp the ticket. That the injuries and damages are referred to such negative action of the ticket agent shows that the alleged assurances or advice given by the Huntsville, agent respecting plaintiff’s right to use the ticket without further fixing, are not declared on as the wrong sued for. The same consideration shows further that both the fact and manner of plaintiff’s expulsion from the train are averred as being consequential to the ticket agent’s wrongful conduct and not as a primal cause of action in trespass or other form. . This count though containing much, superfluous matter is framed for recovery upon no cause of action other, than in case for a breach of duty resting on defendants as. common carriers to confprm [552] to their own regulation as embodied in the 'contract so as to entitle the plaintiff to be received and carried as a passenger. The contract is set out only as matter of inducement showing how the duty arose. So far as it avers the second refusal to fix the ticket occurring after plaintiff’s ejection from, the train, this count avers no actionable wrong, for by the preceding averments of the same count she elects to treat the contract as broken by the first refusal or failure. A 'breach of an entire contract committed by one party and claimed by the other discharges the contract from continuing-operation so that the breach cannot be repeated. Therefore, defendants’ motion to strike from the complaint these averments of what occurred on paintiff’s second attempt to have the ticket validated should have 'been granted. The motion to strike from count 4 that part relating to plaintiff’s expulsion from the train should also have been granted. This for the reason that the expulsion was not a proximate result of the "wrong declared on in this count as causing the damage sued for Which was solely the agent’s failure to validate the ticket, considered independently of his wrong advice. The fifth count avers that plaintiff was a trespasser on the train but declares on and confines the claim for damages to alleged excessive force used by the conductor in ejecting plaintiff from the train. What is alleged in this count as to presenting the ticket to the Huntsville agent and his statements and conduct in that connection, is foreign to the trespass sued on and ought to have been stricken out on defendants’ motion. A refusal to strike averments of redundant matter from a complaint is reversible error when and only when it affirmatively appears that thereby prejudice resulted to the defendant.—Columbus, etc., R. Co. v. Bridges, 86 Ala. 448; Goldsmith v. Picard, 27 Ala. 142. Here it is seen that the irrelevant averments above mentioned were made the basis for testimony which could not have been admissible without them and of a kind naturally prejudicial to the defense. The errors in refusing the motions to strike referred to above must be treated as entitling the defendants to a reversal of the judgment. • [553] Averments oí the conversations between plaintiff and defendants’ agent at Decatur were superfluous but harmless. A complaint should be framed upon a definite theory so as to inform the defendant of the issue he is called upon to meet and to furnish the court with the means of determining- the relevancy of evidence. If this should be done upon another trial the questions involved in charges and rulings on evidence at the last trial may not again arise and, therefore, need not now be considered. Reversed and remanded.