Kimbrell v. Louisville & Nashville Railroad

ANDERSON, C. J. (1) The - defendant’s special plea 3 set up an order of the railroad commission authorizing the collection of 15 .cents extra from those boarding the trMn at ticket stations without tickets. It is first urged by the appellant that the order in question does not apply to or include this defendant. It may be true that the preamble of the order names certain lines and omits this one, but the order itself, beginning with paragraph 1, says, “That no carrier in Alabama,” etc., indicating that it applies to all railroads, whether mentioned in the preamble or not. The order is not only susceptible of this construction, and which we should give it, else it might be an unwarranted discrimination against this and other roads not mentioned in the preamble. (2-4) We also think that the commission had authority to make the order under the terms of the act of 1907 (page 711), regardless of section 5564 of the Code of 1907, which fixed the passenger rate. Nor do we think that the act in question violates section 45 of the Constitution of 1901, because broader and not comprehended within the title, as the title is sufficiently broad to cover the act and to authorize everything therein [396] enacted. Neither are we willing to hold that the act is repugnant to the Constitution as an unauthorized delegation of legislative authority.—Railroad Com. of Ala. v. Northern Ala. R. R. 182 Ala. 357, 62 South. 749, and cases there cited. The tial court did not therefore err in overruling the plaintiff’s demurrer to plea 3. (5, 6) Since plea 3 was in and set up a good defense, there was but one issue between the parties; that is, whether or not the plaintiff tendered the fare covered by the plea, and, if he did, whether or not the conductor exacted of him a greater sum and caused him to-get off the train for failing to pay said excess. There was but one theory upon which the plaintiff could recover under either count of the complaint, and that was that the conductor exacted of him 40 cents instead of 28 cents. The plaintiff admitted that he did not give or offer the conductor but 25 cents, which was insufficient, but claims that he was made to leave the train because he' failed to pay an additional 15 cents, making 40 cents demanded of him by the conductor. Therefore the only theory upon which the plaintiff could recover upon either count was that he was wrongfully ejected because failing to- pay 40 cents demanded of him by the conductor, and this issue was squarely submitted to the jury under the plaintiff’s given charge 1, which instructed a finding for the plaintiff if the conductor demanded a 40 cents fare of the plaintiff. The jury found for the defendant, and the effect of which was that the conductor did not demand 40 cents of the plaintiff, as testified to by him and his witnesses, and, with this fact determined adversely to him by the jury, he could not recover under either count of the complaint, and, if there was error in sustaining the demurrer to the second count, it was error without injury, as the one fact necessary to sustain same was in [397] volved in the first count, and which was submitted to the jury and found against the plaintiff. It is true that a verdict for a defendant under a simple negligence count does not, in all cases, acquit him of willful or wanton misconduct (Ex parte McNeil, 184 Ala. 420, 63 South. 993), yet as recognized in this case, supra, if the two counts present the identical issues of fact, the doctrine of error without injury could have application. In the case at bar the plaintiff could not, under the complaint and evidence, have recovered under the second count if not entitled to recover under the first one, as the gravamen of each of them was wrongfully ejecting the plaintiff because of a failure or refusal to pay 40 cents demanded of him by the defendant’s conductor, and which said demand was never made according to the verdict of the jury. Moreover, the first and second counts were identical as to the plaintiff’s cause of action, both being for the wrongful ejectment of the plaintiff, and the addition of the words “willful” or “wanton” in the second count did not change the gravamen of the action or enhance the measure of damages, as each count, without the words “willful” or “wanton,” as added to the. second count, were grounded upon a wrongful and intentional ejectment of the plaintiff, and which, if true, authorized punitive damages. (7) Since the jury found that the plaintiff was not entitled to recover, any errors, if any there were upon the instructions as to the amount of damages, was error without injury. (8) If the plaintiff had a legal excuse for not purchasing a ticket, the plea charging that he boarded the train at a ticket station, the same should have been set up by a special replication. [398] (9, 10) As to the special claim in the second count, as amended, for attorney’s fees for bringing the suit by way of special damages, the elimination of same was innocuous to the plaintiff, as the jury found that he was not entitled to recover. We will add, however, that we know of no case in this jurisdiction authorizing the recovery of attorney’s fees for bringing actions- of this character, and the great weight of authority seems to-be against the appellant’s contention, as will be seen from an examination of the note to the case cited by appellant.—United Power Co. v. Mathney, 81 Ohio St. 204, 90 N. E. 154, 28 L. R. A. (N. S). 761. (11) The trial court saw the witnesses and heard the evidence, and we are not prepared to say that the verdict of the jury was so manifestly opposed to the weight of the evidence as to warrant this court in reviewing the action of the trial court in denying the-motion for a new trial.—Cobb v. Malone, 92 Ala. 630, 9 South. 738. The judgment of the city court is affirmed. Affirmed. McClellan, Mayfield, and Somerville, JJ., concur.