Ashe v. Southern Railway Co.

The opinion of the Court was delivered by

Mr. Justice Gage. .

The appeal is from an order of the Circuit Court overruling a demurrer by the plaintiff to the second defense of the answer.

It is a matter of sore regret that so much consideration seemingly must be given to procedure, the mere reconnoitering for a real contest, but no contest, about the real difference of the parties.

Let the pleadings and exceptions be reported. The demurrer was overruled by a pro forma order.

There are five stated grounds of demurrer; and there are seven stated exceptions to the order.

These specific alleged reasons for the demurrer and for the exceptions will not be considered in detail and eo nomine; but only the essential issue necessary to be decided now. A majority of both the grounds and the exceptions charge a failure of the answer to allege conclusions of law, rather than to allege those facts from which such conclusions are inferable.

The complaint states a bald case of wilful wrong. Its' allegations refer exclusively to a train designated in the answer as No. 31. It gives no account of a following local train which is referred to by the answer. It makes out that No. 31 wras “the regular passenger train;” that No. 31 was “its special train,” advertised by posters to run at reduced rates on a round trip, but on an occasion not named by the complaint; that no agent was at the Rock Hill office to sell the special tickets for the train No. 31, so posted to run, or any ticket at all; that plaintiff boarded No. 31 and tendered the conductor the advertised fare for such a round trip and reduced fare ticket, and that the conductor refused the money, insulted and abused the plaintiff and put him off the train at Chester, to which point he had impliedly ridden from Rock Hill. Upon such a case, if proven, the plaintiff asks $3,000.00 for damages.

The answer in brief, and by necessary inference, alleges: That the occasion for the reduced rates was a “National Corn Exposition” at Columbia, the fee to enter which was SO cents, collected by the carrier for the exposition, as a part of the price of the round trip ticket; that the defendant operated two trains past Rock Hill; that the first, called No. 31, was a through train running from Washington to Jacksonville, and that the following train was the local from Charlotte to Columbia; that on the day named an unusual and unprecedented number of passengers applied for these exposition tickets at Rock Hill, and defendant was not able to make out tickets for all the applicants in the time at its disposal, and that was the only reason why a ticket was not issued to the plaintiff; that plaintiff did not wait for the following local train, but got aboard No. 31, had no ticket of any sort, and tendered money for the price of one of the alleged return and reduced fare tickets; that defendant’s servants on the train had no authority to issue any such ticket, and demanded the regular fare; that plaintiff refused to pay the regular fare and that defendant gently ejected plaintiff from the train at or near to Chester.

The action is for wilful misconduct of the defendant company.

The defendant is plainly entitled to show the reason why the plaintiff could not get a ticket at Rock Hill, and that such failure was not due to the perversity of the defendant; but was due to all the circumstances of the transaction recited in the answer. And the defendant company is, for the same reason, entitled to show why the passenger was ejected.

The legal effect of the things alleged by complaint and answer need not now be adjudged with all the particularity suggested by the demurrer.

The evidence may modify the pleadings and present issues somewhat altered from those made by the pleadings. A judgment on the issues made by the pleadings might embarrass the Court which shall adjudge the issues to be made by the testimony.

It will be time enough to declare the mutual rights of the litigants when the cause comes to trial on Circuit.

It is sufficient now to say that the answer alleges new matter which may at least mitigate the damages claimed, and which may explain to the jury the allegation of wilful conduct made against the defendant.

The judgment of the Circuit Court is affirmed.