Birmingham Railway, Light & Power Co. v. Yielding

ANDERSON, J. The graveman of the first count is the wrongful ejection of the plaintiff from the car, and the averment of other things proximately caused thereby are mere matters of inducement or aggravation, going to swell the damage. Nor was the first count of the complaint subject to the other grounds of demurrer insisted upon by the appellant in brief of counsel. The second count does not charge that the ejection per se was wrong, but that it was made so by the use of unnecessary force and violence. Even if the defendant had the lawful right to eject the plaintiff, it would be answerable in damages for any unnecessary force or violence inflicted upon him by its agents acting within the scope of their authority. The trial court did not err in overruling the demurrer to the second count. [367] The third count of the complaint was not subject to the demurrer interposed thereto. — Sou. Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35. The second plea attempted to justify the ejection of the plaintiff, but failed to set up any rule of the defendant, and the demurrer thereto was properly sustained. The plaintiff’s replications, in effect, concede the reasonableness of the rule, but attempt to set up a state of facts forbidding the enforcement of same, and which we deem insufficient to authorize a relaxation of said rule. If the facts were as set out in the replication, the plaintiff doubtless had his recourse for a breach of the contract, or of duty growing out of same; but the breach of the contract by the defendant, or a duty growing out of same, did not authorize the plaintiff to take passage in another car, controlled by another conductor, and continue the journey without paying the new fare demanded by the conductor, after informing him of the rule. — Lasher v. Third Ave. Co., 27 Misc. Rep. 824, 57 N. Y. Sup. 395; Gravill v. Manhattan R. R. Co., 105 N. Y. 525, 12 N. E. 51, 59 Am. Rep. 516. The trial court erred in overruling the demurrers to the replications to pleas 3 and 4, and the judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Haralson, Dowdell, Simpson, and Denson, JJ., concur