Mobile Street Railway Co. v. Watters

SHARPE, J. By the fourth plea it is set up- as a defense to the action, that “the plaintiff got upon the car of defendant and when the defendant’s conductor demanded his fare, he tendered to the conductor in payment of said fare, a coin which was so much worn that the stamping thereon could not be seen with sufficient distinctness to enable the conductor to tell whether it had originally been a coin of the United States government or not; and when the said conductor declined to receive this fare in compensation for its ride, the plaintiff declined to pay his fare with any other money, wherefore he was ejected.” These averments do not put in issue the legality of the coin in question. A coin issued by authority of law to circulate as money is not deprived’ of the quality of legality merely bv being worn in the process of circulation, nor does a silver coin by sncli wear lose its quality as legal tender “so. long as it is not appreciably diminished in weight and retains the appearance of a coin duly issued from the mint.”—Morgan v. Jersey City, etc. R. Co., 52 N. J. L. 60, 18 Atl. Rep. 904. But the plea does put in issue the coin’s condition, together with the ability of the conductor to determine its genuineness. Whether it presents a valid defense is not here in question. By the joinder of issue thereon its averments were made material; and an issue joined whether on good pleading or bad cannot properly be disregarded, but when submitted to- the jury must be tried and the verdict should respond thereto.—Steed v. Knowles, 97 Ala. 573; Allison v. Little, 93 Ala. 150; Mudge v. Treat, 57 Ala. 1; Masterson v. Gibson, 56 Ala. 56: Hazard v. Purdom, 3 Port. 43. Here there was evidence tending to support this plea in the conductor’s [231] statement in testimony, that the coin produced in evidence and testified to by plaintiff as being the one which was tendered for his fare, was not in fact the coin Avhicli was so tendered and that as to the latter “yon could not tell but what it was cut out of a piece of tin but the court instructed the jury “if the evidence reasonably satisfies your minds that the plaintiff tendered legal coin of the United States in payment of his fare and the conductor refused to take it and ejected the plaintiff, the plaintiff would be entitled to recover.” Without questioning the correctness of this instruction in its beiring on some of the issues, we are of opinion that it improperly ignored the particular plea above referred to. In effect it withdrew from the jury the issue submitted concerning the conductor’s ability to determine from the appearance of the coin its legal tender quality, which ability rather than the real legal tender quality, had by the issue joined upon that plea become a vital question. On the witness stand the conductor, while denying that the dime exhibited in evidence was the same that was' offered for plaintiff’s fare, testified that the coin so exhibited was a good visibly lettered dime. This evidence being without contradiction, proved not only that firm coin was good, but that the conductor was able to recognize it as being good. The court was, therefore, justified in charging the jury upon the assumption that the dime introduced in evidence was of legal tender quality as was in effect asserted in the written charges given at plaintiff’s request. Accompanying the transcript there is a coin which, is certified as being the one used in evidence, doubtless for the purpose of having it inspected under rule 27 of Supreme Court- Practice. That rule, however, goes no further than to authorize the transmission here for inspection, of original papers used in evidence in the trial court and copied in the transcript. Neither that nor any other rule authorizes this court to look to the coin, itself to determine its character or for any purpose. The question addressed to plaintiff by Ms counsel as to where, after being put off the car, he got money to [232] pay fare homeward, called for immaterial matter and the objection to it should have been sustained. For the errors mentioned the judgment will be reversed and the canse remanded.