McGhee v. Cashin

SHARPE, J. Appellee’s motion to strike the bill of' exceptions from the record in this case will be overruled. The motion is on the assumed ground that the bill was not signed in due time whereas the record, discloses that [568] orders were made regularly extending tbe time for signing tbe bill of exceptions taken at tbe main trial and as well asi at tbe bearing of tbe motion for a new trial. Tbe complaint sufficiently avers a case in tort for an alleged wrongful expulsion of plaintiff from a train. Tbe relation of passenger and common carrier being-averred as well as a breach of duty growing out cf that relation, it was unnecessary to aver the terms of the contract of carriage or to set out tbe contents of tbe ticket on which plaintiff claimed tbe right to travel. McGhee & Fink v. Reynolds, 117 Ala. 413. It is averred in tbe complaint that the persons who ejected plaintiff from the train were employees or agents of defendants who as receivers were operating the railroad. This most material averment was put in issue by the plea of not guilty and proof of it was essential to recovery. The fact that special pleas of contributory negligence'were filed did not waive tbe general issue or tbe necessity for proof which that plea cast on the plaintiff. Tenn. Coal, etc. Co. v. Hamilton, 100 Ala. 252; Lehman v. Shiver, 129 Ala. 318; 5 Am. & Eng. Encyc. Law, 27. In the record there 1st a total absence of evidence to show or -from which to infer that at the time of the alleged wrong, defendants were receivers of or operated the road or had any control over, or relation with, any person connected with its operation, nor is there anything to show that defendants waived the production of such proof. It does not appear, other than by the pleadings, that any dispute was waged as to those matters, but the couifi could not assume from such absence of dispute that the defendants admitted the existence of those facts.—Brinson v. Edwards, 93 Ala. 447, 455. So much of the decision in McKay v. So. Bell Tel. Co., 111 Ala. 337, as holds it proper to submit to the jury trying the case the question of whether a defendant, by his manner of conducting the trial, has waived the production of evidence which under the pleadings the plaintiff is otherwise bound to produce, is unsound and must be overruled. The question of such waiver when it arises must be determined 'by the court. It is not within the issues made by the pleadings which alone are triable by the jury. [569] It results from this omission of evidence to connect defendants with the wrong, that the refusal of the general affirmative charge asked in favor of defendants was error for which the judgment must be reversed. It maybe the evidence will be supplied on another trial and therefore we will notice some -contentions that will probably be then renewed. If it be true that defendants were operating the road, and that as claimed by plaintiff he owned and offered to the conductor a ticket rightfully and on its face entitling plaintiff to carriage on train he was riding, he did not lose hi-s character as a passenger by being forced from the car, nor did the ejection after it was accomplished authorize the conductor to disregard any duty he would have owed the plaintiff as a passenger but for. the ejection. Abuse or insulting language if any addressed by the conductor to the plaintiff while the plaintiff was reentering the car to continue his journey was of the res gestae, admissible to be proved under the averments of the complaint as tending to illustrate the conduct and motives of the conductor and as a basis for damages as well. According to plaintiff’s testimony he offered the conductor a ticket stamped with the date of October 20 and •so evidencing his right to travel that day as a passenger on the Memphis & Charleston railroad. The conductor looked at it and said in substance it. ivas out of •date, and that October 20th was not the date it bore. The stamp was dim but legible, and was so when the ticket was introduced on the trial. The question of the ■conductor’s good faith in the position he took in respect of what stamp the ticket bore, was material as bearing on the question of punitive damages in case the plaintiff liad shown a right to recover. To prove the stamped date was legible on the day plaintiff attempted to use it for passage, and that it was then in practically the same condition as when it was used on the trial, it was permissible to prove by third persons that they saw the ticket in plaintiff’s possession on his arrival that day at Decatur and it then bore the legible stamp of October 20th. That these same persons were allowed while testifying to read the stamped endorsement to the jury [570] could not have injured defendant since the ticket itself was before tlxe jury and the endorsement corresponded with their testimony. It was permissible to have the conductor read the stamp while 'being cross-examined for the purpose of testing his ability to read it aright at the time plaintiff presented it on the train. Whether the ticket shown to third persons and exhibited on the trial was the same ticket offered the conductor. was of course a question of fact about which plaintiff had no right to make evidence for himself out of what he said to third persons when he showed them the ticket. Reversed and remanded.