Louisville & Nashville Railroad v. Bizzell , 131 Ala. 429 ( 1901 )

SI-IARPE, J.

A railroad company is not bound to contract for carriage in the indefinite future and, therefore, in selling tickets to passengers it may lawfully limit the time within which they are to be used. Such a limit may be fixed by agreement, which like other agreements not controlled by 'Statute, may be either express or implied. A ticket like the one exhibited in the complaint being silent as to the time when the journey shall be commenced, would, if standing alone, be construed as evidencing an intention on the carrier’s part not to restrict that time. But such a ticket contains nothing inconsistent with an agreement for limiting its use and the same may be shown by evidence aliunde if it exists. If when defendant issued the ticket in question it maintained in force a rule of which plaintiff had notice providing such tckets should be good for continuous passage beginning on the date of sale only, then the parties would be presumed to have contracted with’reference to the rule and to have made the same a part of the contract. If notice of such rule was indorsed on the ticket it would likewise be presumed that it was read by the plaintiff. It was possible, however, for the rule to have been disused or waived. The special pleas do not negative such denial or waiver, and; therefore, fail to meet the averment of the complaint that the ticket was unlimited, which averment goes not merely to what appears on the face of the ticket but negatives restrictions imposed in any form upon its use. But that averment was put in issue by the plea of not guilty. Under that plea there was received evidence tending to show that the ticket offered by plaintiff bore stamped thereon, the words “Good for continuous passage beginning on the date of sale only.” If this be true, the stipulation so appearing on the ticket must be taken as expressive of a condition upon which the ticket was issued and accepted and as such binding on the plaintiff. The ticket introduced in evidence by plaintiff and claimed by him to have been offered the conductor bore no such words. This conflict in evidence made a question for the jury’s determination. Their province in that regard was clearly invaded by the first instruction given at plaintiff’s request, which asserted among other things, “there is nothing whatever on the ticket limiting the time within which it might be used; nor is there anything on it to show the purchaser that it was not at his discretion to use it when he ivas disposed to do so.” We interpret this charge as the jury must have done to have reference to the ticket which was in fact tendered the conductor. • The giving of it.was error for which the judgment must be reversed.

A similar error was committed in that part of the court’s oral charge indicated by the fourth exception thereto. The oral charge is furthermore faulty in asserting that plaintiff would under given circumstances be entitled to recover punitive damages. Such damages being apart from compensation are not recoverable as a matter of right. Their imposition is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity . of preventing similar wrongs. — 1 Brick. Dig. 523, • § 16; S. & N. A. R. R. Co. v. McLendon, 63 Ala. 266; Shearman & Redfield Neg., § 600; Sedgwick Damages., 477.

We discover no other error in the giving or refusing of requested charges or in the parts of the oral charge excepted to. The first charge refused to defendant improperly called for separate issues to be tried as to facts disputed in testimony. — K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412.

The inquiries made of the conductor concerning difficulties had by him with other passengers and the results as affecting his employment, were about immaterial matters, but the testimony elicited thereby was not injurious to defendant.

Cross-examination of the conductor as to his habits of drinking and swearing Avas permissible as testing the truth of his testimony respecting his conduct on the occasion of plaintiff’s ejection from the train.

BeAwrsed and remanded.