ON MOTION FOR REHEARING.
Jenkins, P. J.The record in this case as originally sent up by the clerk of the trial court was deficient, in that it omitted from the 8th paragraph of the petition the allegation showing the death *12of plaintiff’s son in the collision described. Counsel for the defendant themselves called attention to this diminution of the record, but the fact escaped our attention, for the reason that the defendant’s general demurrer was neither insisted upon nor argued in the briefs of counsel, and the sole argument on the facts of the case was based upon the defendant’s contention that the deceased, at the time he was killed, was not a passenger, or, even if he was such, was then attempting to ride by concealing himself on the “ blind baggage ” between the front end of the express-car and the rear end of the tank of the engine. However, as counsel insist upon the point in their motion for rehearing, the originally omitted portion of paragraph 8, alleging the homicide, has been procured from the clerk of the trial court, under an order of this court. One of the grounds of defendant’s special demurrer was as follows: “ In the eighth paragraph, as to Hugh Allen being killed in the collision, on the ground that the allegation is too vague and indefinite, and the transaction is not sufficiently described, and it is not alleged how the said Hugh Allen was killed, or where he was located at the time he was killed,— whether he was riding on the 'blind-baggage ’ or outside the platform of the baggage car, or in the baggage-car, or on the platform of a passenger-car, or inside of a passenger-car, and said petition nowhere shows that said Hugh Allen was in the exercise of due care at the time he was killed. This ground of special demurrer was only insisted upon in general terms, in- the comprehensive and exhaustive arguments contained in the written briefs of the defendant’s counsel, hut, in view of the motion for rehearing, is now quoted in full and specifically ruled upon as being without merit.
Counsel, in their motion for rehearing, contend that, in overruling the first special ground of demurrer (paragraph 1 of the syllabus), this court must necessarily have overlooked the ruling of the Supreme Court in Southern Railway Co. v. Dyson, 109 Ga. 103 (34 S. E. 997), wherein it was held: "When the petition in an action against a railway company for damages alleged to have been sustained by the plaintiff’s unlawful expulsion from a train insufficiently describes the ticket presented to the conductor as the. evidence of the former’s claim of a right to passage, it is erroneous to overrule a special demurrer properly ¡pointing out the defectiveness of the petition in this respect. Eish and Lewis, JL, dis*13senting.” In that ease, as shown by the opinion, the plaintiff had, by her petition, specifically planted her case upon the alleged contract of the carrier “ evidenced by this very ticket,” which she alleged she had purchased from an agent of the defendant company “for first-class passage to Atlanta, Ga., over defendant’s line, paying therefor the sum of forty-seven cents.” The opinion shows that the character of the ticket thus specifically forming the necessary basis of her complaint, and to which it was limited, was not otherwise indicated; and that, while the plaintiff alleged that “ the conductor refused to recognize this ticket as valid and accept it for passage,” the petition did not “ contain any allegation that it was good for passage at the time when presented,” and did not allege that “the price paid for the ticket was at the maximum rate allowed by law, or that it was unlimited as to time.” It would thus seem that there is no conflict between the ruling made in that case and what was held in Riley v. Wrightsville & Tennille R. Co., 133 Ga. 413, 420 (65 S. E. 890, 893, 24 L. R. A. (N. S.) 379, 18 Ann. Cas. 208), where Justice Lumpkin said: “We recognize the fact that one may become a passenger on a railroad without alleging specifically the details of purchasing his ticket, or even without a ticket; but in such event, he must rely on the facts appearing and the law applicable to them. If he wishes to rely on duties arising from a particular basal fact, he should allege it, and he should not do so ambiguousty, when called on by special demurrer to make his allegations plain.” In the Dyson case the plaintiff planted her case upon, and expressly limited her rights by, the contract “ evidenced by this very ticket,” relying “ on duties arising from ” this “ particular basal fact,” and consequently she should have set forth, when called upon, this, the basis of her claim, plainly and free from ambiguity. But where, as here, the plaintiff does not rely upon the repudiation of a designated contract, as the basis of her complaint, she is entitled to proceed for the homicide of an alleged passenger “ without alleging specifically the details of purchasing” a ticket, or even whether a ticket had been purchased, but in such a case, she “must rely on the facts appearing and the law applicable to them.” In the instant case the only supporting “ basal ” fact pertaining to the relationship of the deceased with the defendant consists in the allegation that the deceased was a passenger. ■ It makes no difference how. The do*14fendant’s obligation being the same, it does not matter in what way the alleged relationship might be shown to have existed. If however, the plaintiff had restricted her claim by expressly basing the rights of the deceased as a passenger upon a specified' contract for passage, and the gist of the complaint had consisted' in the nonrecognition of such expressly pleaded contract, the rule might well be different. In a case such as that it would be incumbent upon her to show expressly that the alleged contract, the repudiation of which furnishes the sole basis of her claim, was such as would in fact support it. But see Macon, Dublin & Savannah R. Co. v. Moore, 125 Ga. 810, 814 (3) (54 S. E. 100); King v. Southern Ry. Co., 128 Ga. 285, 288 (2-4) (51 S. E. 501), in which latter case the soundness of the majority ruling in the Dyson case is expressly questioned. Thus, the case at bar is essentially different from the Dyson case. In the Dyson case the gist of the complaint consisted in the right of the plaintiff to ride by reason of the validity of the designated and expressly pleaded contract which the defendant is alleged to have in fact and in terms refused to recognize. The repudiation of the pleaded contract furnishes the sole gravamen of the suit. Here the gravamen of the suit does not consist in the validity of a pleaded contract which had already been actually and in terms repudiated, but consists in the homicide. In an action against a carrier of passengers, based on contract, the contract, being the gravamen of the case, should be fully and plainly set forth; but where the action is based on tort, and a contract is pleaded by way of inducement, it is not ordinarily required that it be set forth with the same degree of particularity, although the reason for so doing is manifestly much stronger where the tort consists, as in the Dyson case, in a wrong perpetrated in actually and expressly repudiating a particular contract which plaintiff had specifically set forth and upon the validity of which she had planted her case. But where, as here, the suit is not on contract, and the gravamen of the action in tort for a homicide does not consist in any actual and wrongful repudiation of an expressly pleaded contract, the plaintiff, while required to allege and prove the relationship of carrier and passenger, is not charged with the duty of,“alleging specifically the details.of purchasing a ticket,” or even “whether a ticket had been purchased, but in such a case must rely on the facts appearing and the *15law applicable to them.” Riley v. Wrightsville & Tennille R. Co., supra. Especially would' this be true where, as here,, the facts relating to how and in what manner the deceased became a passenger are not such as would lie peculiarly within the knowledge of the plaintiff. Whether or not the deceased had bought or had turned over a ticket is a matter concerning which the defendant is manifestly in much better position than the plaintiff to furnish proof; and while, as stated, it is incumbent upon the plaintiff to prove the relationship, it does not appear that she should be required, at her peril, to stand upon the contention that a ticket had been purchased, since under the Civil Code (1910), §'2715, “a carrier may demand prepayment of fare; but if, by its permission, persons enter its vehicle with the intention of being carried, an obligation to pay fare is implied on the part of the. passenger, and the reciprocal liability of the carrier arises;” nor, on the other hand, should the plaintiff be precluded by a contrary allegation from proving such a purchase if she could. All of which brings us back to what was said in Riley v. Wrightsville & Tennille R. Co., supra. In a suit for the homicide of an alleged passenger, so far as such relationship is concerned, the plaintiff "must rely upon the facts appearing and the law applicable to them.”
The contentions referred to in the other grounds of the motion appear to have been fully passed upon in the original opinion.
Motion for rehearing denied.