Birmingham Railway, Light & Power Co. v. Anderson , 3 Ala. App. 424 ( 1911 )

WALKEB, P. J.

The grounds of demurrer assigned to count 1 of the complaint as amended distinctly raised the question of the sufficiency of its averments to show the existence of a duty on the part of the defendant (the appellant here) to accept the plaintiff as a passenger, that being the only duty claimed to have been breached.

It may be regarded as settled that it is for the court to pronounce the conclusion, from the facts or circumstances alleged in a complaint, as to what, if any duty it shows was owing by the defendant to the plaintiff; and that as to this feature of a complaint counting on the alleged nonfeásance or misfeasance of another a statement of the plead'er’s conclusion on the subject cannot be accepted as a substitute for appropriate averments of the facts out of which a duty is supposed to have arisen.—Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 South. 170; Iron & Steel Co. v. Williams, 168 Ala. 612, 53 South. 76; Alabama Consolidated C. & I. Co. v. Hammond, 156 Ala. 253, 47 South. 248; Leach v. Bush, 57 Ala. 145; Ensley Railway Co. v. Chewing, 93 Ala. 24, 9 South. 458.

The public character of the business of a common carrier of passengers imposes on one who undertakes it the duty of receiving and carrying without discrimination on a vehicle then in use by it for the purpose of public carriage all persons fit to be carried who may properly present themselves and seek transportation, so long as there are accommodations for passengers on such vehicle. The carrier may establish reasonable rules and regulations in regard to such matters as the times and places of receiving passengers.—Pullman Car Co. v. Krauss, 145 Ala. 395, 40 South. 398, 4 L. R. A. (N. S.) 103; North Birmingham, Railway Co. v. Liddicoat, 99 Ala. 575, 13 South. 18; Illinois Central R. Co. v. Smith, 85 Miss. 349, 37 South. 643, 70 L. R. A. 642, 107 Am. St. Rep. 293, 299; 4 Elliott on Railroads, § § 1574, 1575, 1576; 2 Hutchins on Carriers, '§§ 963, 966.

Count 1 of the complaint in this case, as the same was amended, after alleging that the defendant was a common carrier of passengers for hire or reward, proceeds as follows: “Plaintiff alleges that on the date aforesaid she applied to the servant, agent, or employe of the defendant in charge of one of its said cars for transportation thereon, but that said servant, agent, or employe, acting within the line or scope of his employment, wrongfully and without legal excuse therefor, wholly failed or refused to permit plaintiff to become a passenger on said car, or to be transported thereon, as it was her intention or desire to become' and to do. Said intention and desire then- and there was well known to said servant, agent, or employe.” The count contains no other averment of the facts or circumstances out of which the supposed duty to receive the plaintiff as a passenger arose. In considering these averments, the statement to the effect that the refusal to permit the plaintiff to become a passenger was wrongful and without legal excuse may be put out of view as expressive merely of the pleader’s conclusion', and also because it has reference, not to the existence of a duty, but to the breach of it.—North Birmingham Ry. Co. v. Liddicoat, supra. The facts stated would be fully proved by evidence which showed that when plaintiff made known her desire to become a passenger she was at such a distance from tile car as to require its detention for' an unreasonable length of time to enable her to reach it; that the car on which she sought to become a passenger was then in motion and at a place at which it was against the reasonable rules or regulations of the defendant to take on passengers, and that it was not even a car which was then in use for the carriage of passengers. It hardly requires a resort to the rule of construing a pleading-most strongly against the pleader to reach the conclusion that the facts stated fail to show the existence of such a relation between the plaintiff and the defendant as to put the latter under the duty of accepting the former as a passenger.—Birmingham Railway & Electric Co. v. Mason, 137 Ala. 342, 34 South. 207; North Birmingham Ry. Co. v. Liddicoat, supra; Smith v. Birmingham Ry., L. & P. Co., 41 South. 307. Counsel for the appellee cite the case of Birmingham Ry., L. & P. Co. v. Adams, 146 Ala. 267, 40 South. 385, 119 Am. St. Rep. 27, as supporting her contention that the count in question was not subject to the grounds of demurrer assigned against it. The facts stated in the complaint in that case showed the existence of the relation of passenger and carrier between the plaintiff and defendant. In other words, the existence of the duty there claimed to have been breached was disclosed by appropriate averments, of the facts. This cannot properly be said of the. count now under consideration. We are of the opinion that the demurrer to that count should have been sustained.

Reversed and remanded.