
    North Alabama Traction Co. v. Daniel.
    
      Damages for Injury lo Passenger.
    
    (Decided June 18, 1908.
    Rehearing denied. Dec. 24, 1908.
    48 South. 50.)
    1. Pleading; Com.plaint; Certainty; Separate Cause of Action.— The complaint in this case does not state separate cause of action, the facts set out being merely by ivay of aggravation, connected with ihe failure to deliver plaintiff at his destination; nor is the complaint demurrable for being uncertain as to what act plaintiff relied on, or as to whether it was a servant of defendant by whom plaintiff was tauted, etc.
    
      2. Carriers; Misconduct Towards Passengers. — Where it appeared that plaintiff suffered no ill effect of a serious or permanent character and had been in the habit of taunting the motorman on former trips, a judgment for $1,750, was excessive, on account of the company’s failure to permit him to alight at his destination, and for indignities inflicted by the motorman and conductor, as a consequence of which he had to walk half a mile and was made nervous thereby, and insulted.
    3. Appeal and. Error; Review; Presumptions. — Although the record shows that the term was organized by the regular judge, in the absence of anything to show the contrary, this court will presume that the supernumerary judge, who presided at the trial and signed the bill of exceptions, lawfully held court for the regular judge.
    Appeal from Morgan Circuit Court.
    Heard before Hon. A. H. Alston.
    Action by Clarence E. Daniel against tbe North Alabama Traction Company. From a judgment for plaintiff, defendant appeals,
    lieversed and remanded.
    Tbe complaint was in tbe following language: “Plaintiff claims of defendant tbe sum of $5,000 as damages, for that the defendant, a street railway company operating-electric cars in Decatur and New Decatur, Ala., is engaged in carrying passengers for hire. It is a rule or regulation of defendant to stop its care at street crossings in each of said towns for the purpose of allowing passengers to alight, and to this end its cars are equipped with buttons, which, when pressed, ring an electric hell, which is a notification to the conductor in charge of the1 car that a passenger desires to alight at the next regular stopping place. On, to wit, the 25th day of July, 1905, plaintiff boarded a car belonging to defendant on Bank street, in Decatur, Ala., and paid his fare, for the purpose of riding to his home, on or about the corner of fourth avenue and Grant street, in New Decatur, Ala., and proceeded thereon until he reached Second avenue and Grant street, in New Decatur, Ala., at which point he Avas duly transferred to his car on a connecting line belonging to the defendant, which line extended along Grant street by plaintiff’s home to East Decatur, a mile or more distant. Said car was in charge of F. M. Simrell as conductor, and George Shuckfull, as mor'torman, servants of the defendant. As the car on which plaintiff was riding on . said connecting . line approached Fourth avenue, plaintiff signaled the conductor (by pressing the button and ringing the electric bell) to stop the car at Fourth avenue, and no heed was given to his signal. In the same manner plaintiff gave another signal for the car to stop just as he reached and just after he passed Fourth avenue, and- the only response which said signal received was a reply from the motorman on said car, to wit: ‘You will have to sleep in the shed like a dog to-night, or walk back home.’ The said car was not stopped until ¡it reached Summerville road, about half a mile distant, at which two passengers alight- and it then proceeded to the end of defendant’s line in East Decatur. Plaintiff remained on the car for, the purpose of going to his home on its return trip.' Between the terminal of defendant’s car line in East Decatur and plaintiff’s home the defendant maintained a car shed some distance, to wit, about half a mile, from plaintiff’s home, and just before the car on which plaintiff was riding (on its return trip) reached said car shed plaintiff was informed by the conductor on said car that he (plaintiff) would have to walk back home or sleep in the barn, and when said car reached said shed or barn the motorman began to back it into the shed, and plaintiff alighted and walked to the sidewalk near by, whereupon the car was immediately put in rapid motion up the track in the direction'of plaintiff’s home. Plaintiff •made an effort to then board said car, which effort was observed by defendant’s conductor or motorman, Avho not only refused to stop the car, but halloed to plaintiff as a parting insult: ‘We have'got it on you after all.’ Plaintiff avers that the aforesaid occurrence happened late at night, to wit, 11 o’clock, that he was sick at the time, and had been for some days prior thereto, and that by reason of the aforesaid act of defendant’s servants in charge of the car he was forced to walk to his home, a distance of, to wit, about half a mile, in consequence of which he was greatly weakened, fatigued, and was very nervous, and could not get composed or go to sleep for a long time thereafter, and suffered great physical pain while on said car as aforesaid, was taunted, guyed, insulted, badgered, and baffled, and was greatly humiliated, and his feelings and pride were outraged and sorely wounded, and he suffered great mental pain.”
    Demurrers were interposed to the complaint as follows: “(1) That the several acts of defendant’s servants and employes’ are alleged as occurring at different times, and it is vague, uncertain, and indefinite as to which of said acts plaintiff bases his right of action. (2) Said complaint alleges several different, distinct, and independent acts of defendant’s servants as the cause of injuries complained of, all in one and the same count. (3) Said count is vague, indefinite, and uncertain.in its allegation as to Avhether or not it was a servant of defendant engaged in the performance of his duties, by Avhom he was taunted, guyed, insulted, baffled, and humiliated. (4) It is not alleged that the person by Avhom he Avas so guyed, insulted, baffled, etc., was in the service of defendant and in the performance of his duties at the time. (5) Said complaint fails to allege that plainti.fi was a passenger upon said car to which he was transferred, having a right of passage thereon. (6) The remark alleged therein as having been made by the motorman to the plaintiff is not the subject or the element of clam-ages on the facts alleged. (7) It is uncertain from said .complaint Avhether the grievances complained of was the failure of said car to stop at said Fourth avenue, or remarks alleged to have been made by the motorman after it passed Fourth avenue and was on its return trip towards plaintiff’s home. (8) It is uncertain whether the injuries complained of was the failure of the car to stop at the place where plaintiff alleges to have attempted to board it on its return trip to Fourth avenue, and does not allege that the place where he so attempted to get on or board such car was a regular stopping place for said car.”
    The evidence of plaintiff was substantially as the facts are stated in the complaint, with the additional fact, as testified to by plaintiff, that lie had often guyed and taunted the mortorman and conductor on this line in a spirit of fun and pleasa.nt.ry. The evidence for defendant tended .to show that the signal to stop at Fourth avenue was not given until the avenue was reached, and at a time when the car was in rapid motion going downgrade, but that an offer was made to put plaintiff off in the middle of the block, which offer he declined, but went on to the end of the line in order to return to his home on the return trip; that on the return trip the car stopped at the barn, and the motorman in charge told plaintiff in a joking way that he would have to walk home as this car did not go on, but neither the motorman nor conductor knew of his getting off the car until after it had started and was passing him as he was walking towards home; and that plaintiff made no signal for the car to stop.
    Motion for new trial was made, based on the grounds that the verdict was excessive; it being $1,750.
    John C. Eystbr, for appellant.
    The averments of the complaint show separate, distinct and independent causes of action and the demurrers raising these points should have been sustained. — A. G. 8. 7?. Go. r. Shahan . 
      106 Ala. 302; L. & N. v. Gofer, 110 Ala. 491; S. A. & M. R. R. Go. v. Buford, 106 Ala. 303; R. R. Go. v. Dusenberry, 94 Ala. 413; Iron Oity Mining Go. v. Hughes, 42 South.. 39. The judge’s oral charge was error. — Payne o. I. O. It, It. Go., 155 Fed. 73; Mellon’s v. Bir. R. L. & P. Go., 45 South.; Clark’s By. Ac. Law, §§ 7 aud 8; 4 St. By. Bep. 465. The verdict was contrary to the weight of the evidence. — Bollar v. Ry. Go., 135 Ala. 375. The damages were excessive. — Richardson v. B. G. M. Go., 116 Ala. 381; A. G. S. It. R. Go. v. Burgess, 119 Ala. 555; Clark v. Pope, 10 South. 586; III. Gent. v. Minor, 11 South. 101.
    Lowe & Tidwell, and Gallai-ian & Harris, for appellee.
    The court cannot consider the hill of exceptions in this ease because it appears from the record that Judge Speake presided at the trial and the bill of exceptions was signed by Judge Alston. — Peale v. The State, 144 Ala. 131; Sterrett v. Davie, 129 Ala. 269; McLendon v. Stephens, 124 Ala. 505. The complaint stated, a good cause, of action showing the liability of the defendant to plaintiff as an injured passenger. — Bir. It. & E. Co. v. Baird, 30 South. 459; K. G. M. & B. It, It, Go..v. Matthews, 39 South. 210. The relation of carrier and passenger was not severed. — Melton v. Bir. It. L. cG P. Go., 45 South. 151. Hence, the court’s oral charge was correct. — Baird’s Case, supra. The verdict is neither contrary to the evidence nor is it excessive.— Snedico'r r. Pope, 143 Ala. 290; Garrett v. SeAoell, 108 Ala. 521; A. G. S. v. Arnold, 84 Ala. 169; Oates v. Bullock, 33 South. 837.
   ANDEBSON, J.

The gravamen of the complaint was the negligent failure of the defendant to transport and deliver the plaintiff, a passenger, at the place of his destination, by carrying him beyond his home or by negligently causing him to debark from the car at the barn upon the return trip. The facts set out in the complaint did not constitute separate and distinct causes of action, but were mere matter’s of aggravation connected with the failure to deliver the plaintiff at his destination. If the complaint-is bad, the defect consists in prolixity, and it was not subject to the demurrer interposed.

While the complaint authorizes punitive damages, and the evidence may have justified the assessment of such damages, we are constrained to hold that under the evidence the verdict, was excessive, and the trial court should have granted a new trial. It is true the plaintiff had .to walk from the barn home, and that he had been sick and was made nervous; but he suffered no ill effects of a .serious or permanent character. Therefore the damages awarded were almost entirely due to the alleged jeers and insults of the defendant’s servants. It may be that their conduct was unpardonable, and that the defendant should be punished for having such servants; but Ave do not think that this plaintiff was in a imsition to feel the same amount of chagrin over Avhat Avas said and done as the ordinary passenger, Avho had comported himself in a proper, and dignified manner. He admitted that he had been in the habit of “guying” this motorman on former trips, and may be what Avas said and done on this occasion Avas but a retaliation incited by the.plaintiff’s previous conduct. We do not mean to justify the conduct of these servants, even if intended as a joke, and brought on by the plaintiff’s OAvn conduct; yet Ave think, under the circumstances, that $1,750 Avas too much for the indignities complained of by the plaintiff. Our conclusion finds support in the cases of Birmingham R. R. v. Ward, 124 Ala. 409, 27 South. 471, and Bessemer Land Co. v. Jenkins, 111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26.

It is insisted by counsel for appellee tliat the bill of exceptions does not contain all of the evidence, because of tlie omission of certain interrogatories to defendant's witnesses. It is sufficient to say that it contains all of the evidence of the plaintiff, which fails to support the verdict; hut we think it contains all the evidence, notwithstanding the omission of some of the interrogatories.

While the record shows tlmt the term of court at which this case was tried, was organized by Hon. I). W. Speake, the regular judge, it siifficiently appears' that Hon. A. H. Alston, supernumerary judge, presided at the trial and signed tin1 hill of exceptions; and in the absence of anything to the contrary we will lire1,sume that be was lawfully and regularly bolding the court, at the time of the trial of this cause, in the place of the regular judge.

The judgment of tin1 circuit court is reversed, and the cause is remanded.

Boversed and remanded.

Trsox, (\ J., and Dowiiebb and MoObebban, JJ., concur.  