King v. Southern Railway Co.

Lumpkin, J.

(After stating the facts.)

1. The demurrer was properly overruled. The petition set forth a cause of action, and was not demurrable for duplicity or for joining an action ex contractu with one ex delicto. The action, fairly construed, was one ex delicto. The purchase and delivery of the ticket were alleged in order to show the duty of the defendant toward the plaintiff. It is not always entirely easy to distinguish between a suit for a breach of contract of carriage, and the alleging of the contract in order to show a duty resting upon the carrier where the action is one for a tort. Any yet it' is well established that such a distinction does exist. Here the suit was not for a' breach of contract of carriage to Waco, but was for a tort committed upon the plaintiff; and the purchase of a ticket by him and its acceptance by the conductor of the company were alleged, to show the relation of himself and the company to each other, what was the duty of the company toward him under the circumstances, and that it violated its duty and committed a tort upon him. If a petition is ambiguous as to whether the suit is for a ■ tort or based on contract, this may furnish a ground for demurrer, duly filed. The plaintiff, however, may amend so as to clearly show whether he is suing for a tort or for a breach of contract. Central R. Co. v. Pickett, 87 Ga. 734. He did amend in this case, and alleged that he was suing only for a tort.

2-4. The plaintiff alleged that he purchased from the agent of the defendant at Waco a ticket to Atlanta and return, paying therefor the full round-trip rate of fare, and that the conductor received this ticket from him on his return passage. In another part of the declaration he alleged that he paid the defendant full first-class fare from Waco to Atlanta and return, and had a right to be treated in a decorous manner, as the law requires that passengers shall be treated, the defendant having accepted his money for the ticket and having taken said ticket from him. This was a sufficient description of the ticket, and it was not necessary that the petition should state what writing, printing, or stamp appeared upon the ticket, if any, or what were the conditions and dates on the ticket, or that the price paid for it was the maximum rate allowed by law, or that it was unlimited as to time, or that it was good as to this train, running on this schedule, and for this particular day and date. The ground of the demurrer setting up this point was correctly overruled. The decision in Southern Ry. Co. v. Dyson, 109 Ga. 103, was not concurred in by the entire bench, but two of the Justices dissented. We need not hold whether the views of a majority of the court would be sustained or those of the dissenting Justices, if the two cases were identical. There is one material difference. In that case the conductor refused to recognize the ticket or accept it for passage, and caused the plaintiff to be expelled. She claimed that she was legally entitled to ride upon the train, and that her expulsion was unlawful. How far the allegation to show this must go, whether to the extent of setting out writing, printing, or stamping upon the ticket, including conditions, dates, etc., need not be discussed. In the present case it was alleged, that, after the return passage from Atlanta began, the conductor accepted and took up the ticket of the plaintiff; but nevertheless, in violation of the duty which the company owed to'him, the conductor committed a tort upon him. Certainly it was not necessary in such a ease, in order to show the relation which existed between the plaintiff and the railroad company, for him to allege or set out these various details in reference to the ticket which the company’s agent had received from him and which was no longer in his possession. See Caldwell v. Richmond & Danville R. Co. 89 Ga. 550; Pickens v. Georgia R. Co., 126 Ga. 517.

5. It was further made a ground of demurrer, that the petition showed that if the plaintiff had any right as a passenger at all, it was only to Waco; and that he was put off beyond that point. But it can not be successfully claimed that a railroad company is free from liability, if its conductor allows no opportunity for a passenger to alight at his point of destination, and carries him a mile or two beyond, and then knocks him from the platform to the ground, while in the act of alighting.

6. The evidence for the plaintiff made out a prima facie case, and the grant of a nonsuit was error. If the plaintiff was not lawfully upon the train, or if no tort was committed upon him, this may furnish matter for defense. But the evidence made out a sufficient case to go to .the jury.

Judgment reversed, on main bill of exceptions; on cross-bill, affirmed.

All the Justices concur.