P.2d *1 170] Aug. Dist., 16, No. 16712. First Div. One. [Civ. 1956.] EDITH BERGER, Respondent, v. SOUTHERN PACIFIC (a
COMPANY Corporation), Defendant; THE PULL- (a MAN al., Appellants. COMPANY et Corporation)
d) *2 Shearer, Shearer, Russel & Thomas Lanctot and Roderick Appellants. L. Dewar for *3 and Respondent.
Leslie C. Herbert for Gillen Chamberlin Defendants, The AGEE, pro J. Company Pullman tem.* Zeno, Jr., appeal judgment and Y. from J. on a verdict Berger, damages Edith in an favor action alleged by plaintiff to have sustained while she was a passenger sleeping on a Pullman ear. Defendant Southern "Company granted nonsuit, Pacific and is not involved appeal. in this Glendale, 7, p.
At on October 1951, m., Berger about Mrs. journey- boarded a Southern Pacific train with intention ing years to San Francisco. was 48 age, frail, sick, She suffering from chronic tuberculosis. In addition, she dehydrated was feverish and as a result of diarrhea and was suffering from codeine withdrawal. She was assisted aboard by redcap porter the train friends and a E” to “Bedroom sleeping car known as “Clover Dell.” This car managed Pullman and serviced porter, its Zeno. up train was made of 14 only sleeping cars but the car was only the one mentioned and Zeno was the Pullman employee Arrangements aboard. were made wire ahead for a doctor *Assignedby Chairman of Judicial Council. during worse should become Berger’s
if Mrs. condition way, Zeno entered the bed- under the train was trip. After doing this, he was Mrs. bed. While up room and made her on place more blankets Zeno to Berger asked alternating she inasmuch as chilled, night if she became bring requested Zeno to her also chills and fever. She between bed, departed. Zeno up the making toast. After tea and changed night clothes, nembutal, took some Berger then Mrs. sleep went to but awakened when got soon into bed. She up her propped and held with the tea. Zeno Zeno returned might From she drink. her mouth order that teacup testimony of the between on there are conflicts here Berger’s accordingly, Mrs. version will be and, parties recounted. tea, she and Zeno Berger drank the conversed Mrs.
While drug her son’s addiction. Zeno about her tuberculosis and more nembutal tablets. She take two suggested that she shortly tray. and removed the returned so. Zeno left but did thing asleep. The next she knew was Berger then fell Mrs. engaging in an act of person, her sexual Zeno was over effectually was too weak to resist intercourse her. She “I outcry of fear. testified: don’t made no because She time, one at the other than completed act.” No he believe wiped occurrence. Zeno off his parties, was aware of the Berger with a towel and and those of Mrs. private parts Berger back left the was exhausted went bedroom. knocking Alto Zeno sleep. was awakened at Palo She telling nearing her that the train was San door and Berger in carried Mrs. his arms Zeno Francisco. placed Francisco and her in a upon arrival at wheel train San days father-in-law. met Two later chair. She was alleged physician of the assault. This was the told she physical He find person had told. could no evidence first she of such assault. *4 sexually being although assaulted, Berger’s claim emphatically Zeno, and denied
completely uncorroborated inherently improbable justify as to an not so incredible substituting for that of the opinion in appellate court its judge, opportunity express an trial who had jury and However, motion for a new trial. ruling himself say least, close, so that the claimed factual issue is carefully. must be scrutinized errors law two The first count proceeded to trial on counts. The action
5 Both upon assault. the second upon negligence, is based was, time of at the allege the actor and Zeno was counts scope the course and complained of, acting within the assault alleged that first count employment his Pullman. neglected carelessly omitted and negligently Pullman and particular, provide Berger and, passage safe for Mrs. carelessly permitted and (1) negligently that Pullman and door of bedroom arrange the on the said allowed Zeno to lock opened outside or corridor so door could from the that said be (2) carelessly permitted and negligently said and and car plaintiff nurse allowed Zeno to enter said bedroom and any night through various times sufficient said without supervision, (3) negligently carelessly permitted and and plaintiff. Zeno he and allowed to and did assault no negligence There is evidence whatsoever. Plaintiff herself brought testified that the friends who to the train requested Zeno to look sick; after her as she was that she left the door unlocked Zeno so could her and look in from serve time to to see if time she needed more blankets or a doctor. There is no evidence that carelessly Zeno was as an selected employee any propensity molesting or that he had toward passengers. Nor is there justify evidence that would holding negligent Pullman having in not someone follow and observe Zeno each time he plaintiff’s entered and, bedroom in particular, at the he time entered and com- mitted the assault.
There given were two forms verdict to the jury its convenience, being one in favor of Pullman and Zeno and the other, adopted by which was jury, reading as follows: jury in “We the the above-entitled find cause a verdict in favor Edith Berger, against the defendants Company, Pullman corporation, Jr., J. Zeno, Y. we damages assess (blank) the sum of Dollars.” There way is thus jury no ascertain whether the based its verdict on the first count or the second count or both. How ever, the rule is that if the in favor verdict of a general in form and there is one count which supported the evidence and which is free from error, such verdict will (2 be upheld. p. 1029; Cal.Jur. 4 Cal.Jur.2d 24 509; Cal. p. 885.) Jur. Therefore, the erroneous submission to the (negligence) first count giving of instructions prejudicial thereon is not if the second count can be sustained. said in As was Leoni v. Delany, Cal.App.2d 303, *5 6; “If one count is not affected 765, 189 P.2d : P.2d 517] [188 support
by is substantial evidence to a verdict error and there may immaterial that there respect it, to it is have with count in connection with another or that errors committed to a verdict as to not sufficient evidence sustain there is [Citing count sustained other count. One such cases.] required from error is all that is evidence and free sufficient specifications The error which the support to a verdict. giving to with reference and the refusal has made appellant first instructions, pertain all to the cause give certain to the second count.” In the immaterial and are action upon judgment in favor of the based a the case cited general affirmed, though recovery under verdict, even a could not be sustained. the first count duty question, sleeping the of a car to the next This leads Scott, In Hicks v. 48 Cal. company passengers. its towards 107], passenger one another App.2d 481 P.2d assaulted [120 for Company The Pullman and the sued passenger latter “A failing said, page The at 485: protect him. court in connection company operating sleeping cars sleeping car regarded except railway carrier, as common trains not a with (13 1739, 1740.) is, It declares. C.J.S. a statute so where even, carrier, to a if not a common exercise however, required, personal safety and of its high degree of for the comfort care among (13 1744.) conflict There is a passengers. C.J.S. though question company, a whether authorities such technically should same de carrier, not a common observe passengers common carrier. We gree of care towards its as a require decisions which do better reason is think the is, degree [Citing of care. This ease that cases.]” authority proposition for holds a California obligation passen company car to its sleeping owes same gers a common carrier. This is accord with as does rule. general obligation a common for an carrier assault distinguished from employees upon passenger,
one of as its upon passenger passenger, a fellow is stated an assault 10 Jurisprudence, pages in volume of American 265: implies protection pas “A transportatipn contract senger against personal agents, acts violence employees Accordingly, liable a carrier is carrier. battery upon employees part of assault of its acts resulting injury agreed transport to those it has liability facilities. This to cases where its extends employee’s duty, but also the assault in the line of the merely of an to those instances where the act entirely performance individual disconnected with the agent’s train kisses duties, where conductor *6 passenger liability a of a against female . . . The will. by common for on a employees carrier an assault one of its dependent passenger question is not on as to whether employee acting authority scope was of or in within the his duty line of a duty, his its as but based broad protect passengers common carrier to its from Never- assault. it theless, liability is clear that the basic of a carrier for an by employee materially assault its affected the relation- ship servant, of master and inasmuch the later decisions as liability practically hold carrier to insurer of an in respect, only this while it is a liable for failure exercise to high degree protect of care passengers to its from assaults passengers fellow strangers. authorities, According to some liability this doctrine of the for applied carrier’s assault is only to those of the immediately engaged servants carrier in carrying transportation out the of all contract but to those engaged general in the transportation. business of Other authorities, however, asserting while liability the doctrine of employee’s for regardless acts of the scope employ- of ment, confine application its agents those to en- whom is trusted the execution of undertaking the carrier’s with the passenger, apparently hold the carrier liable for assaults other servants in such instances as be it would liable for strangers.” assaults We are in not concerned this point case with this latter because Zeno’s duties were directed solely to the protection comfort and passengers of the on his car in his care. It was in connection with these duties that he came into Berger. intimate contact with Mrs. In of Corpus Juris, volume page 896, at it is stated: “To a passenger female special duty a carrier owes protect a insulting remarks, assaults, indecent or improper liber- part on the of ties its employees, has said that duty such away by questions should not be frittered nice employee acting whether scope within the his employment.” (See p. also 13 C.J.S. 1287 cited cases in note under title 58, Ravishment.”) “Assault and And page sleeping 1173 same “A company volume: car liable, like passengers, wrongful insults, a carrier of and for passenger by employee assault an charge porter Numerous decisions ...” car, such as support foregoing jurisdictions cited
of other
are
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but our
statements
attention
involving a sexual
of this state
appellate
decision of the
courts
passenger by
an
proposal upon or an indecent
assault
company.
sleeping ear
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employee of a
carrier or
common
state
be as stated above.
ever,
believe the law of this
should
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complains
the trial court instructed
Pullman
liable for the
Pullman was
that,
law,
as matter
Berger.
following
instruc
conduct
Zeno
towards
Zeno, Jr.,
J. V.
given:
established that
tion was
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Company
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ber
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point was
corporation.” The same
been the conduct of the
Sanders,
684,
P.2d
v.
Complaint made of the failure give certain re quested on instructions the effect consent and resistance. upon There was no evidence to justify which an instruction denied the Berger consent. Zeno assault and Mrs. denied having consented one. There was no other evidence subject. duty resist, this As to the Zeno testified that there Berger for it no occasion and Mrs. testified that she was drugged condition and too weak to effectually. resist Evidence is material and it nonresistance was before the jury for determining its consideration in whether an assault had place. justified But taken a trial court is not in singling instructing out certain thereon, particularly evidence argumentative an example, manner. For one of instruc requested properly tions refused was as follows: “When indecently a female is ravished, expected assaulted impulse that she follow the will natural of virtuous women under outcry, such circumstances and make an and also complain wrong of the done at the oppor reasonable first *8 tunity.” No error was under committed the in evidence this refusing case in the offered instructions on consent and resistance.
Complaint giving is made of the of an instruction required give special a carrier that is to attention the needs passenger. of a sick Appellants contend that such an instruc neglect tion the passenger relates and not to a sexual Even though true, appellants assault. this is suffered prejudice thereby. no helps explain why Zeno was in It why she the many times and left Berger’s so Mrs. bedroom unlocked. door jury’s is that the award raised The last issue damages are by the These evidence. $21,000 supported not damages having been exemplary no entirely compensatory, agreed that there were no marks It asked for or awarded. Berger. injury on Mrs. was or She physical violence physician her days- who after assault examined two the story. her He person whom she told testified the first was negative impression and that his his was examination assault had occurred. This should time that an was he indicating that believed that Mrs. interpreted as not be that, nothing found Berger lying physician, but he physical Berger’s condition, mental, either which in Mrs. complete an assault. There is a be to such could attributed Berger experienced testimony whether Mrs. as to absence of leaving from after At any ill the assault train. effects her general improved health had trial, testified she completely had her tuberculosis cured. It was and that subsequent operation lung to remove one and agreed that the year hospital nothing in had ensuing to do assault. testimony Berger not one Mrs.
There is word any upon anyone resulting residual effect else mention, any chronologically, suggestion last assault. hysteria or anything akin to mental shock was when she anything if she had about asked said to her assault met father-in-law, when he her at train San Francisco. 1‘ I did No, very not. I desper Her answer was: wanted to just ill I ately, get myself I too couldn’t say but was ’’ anybody. day it to The next anything about she did tell stated, testimony As before there is no physician. her, suffering by Berger after mental arrival in San Francisco. kept mind, however, jury
It must be that the prop- erly on the elements of damage, instructed that the judge the opportunity had trial to observe Mrs. in a far Berger position Zeno and were thus better than of the to determine effect this court her. assault proper judge, exercise of discretion, The trial his had power ruling to reduce or set aside the award in upon trial, for a new but he did All motion not do so. of these factors are entitled to serious consideration. It also must be that, kept extremely in mind in a sexual assault case, *9 shock duration extent of the and the difficult to estimate the resulting the assault. Bach disturbance emotional according vary to the individual must involved. case Berger says: drawing “The jurors, on Mrs. Counsel impinge of sense, know that the an assault so common would upon person physical and horrible atrocious Berger of Mrs. would cause a terrific shock mental condition difficulty accepting heal.” The would never that time support is no evidence to this statement that there unless permanent said that such a condition neces- it can would be certainty, sarily, with reasonable result. The trial was held years If, period, after the assault. that three Mrs. Berger any symptoms suffered effects or of the shock counsel, her Instead, claimed she could so have testified. anything support she did not even once mention which would addition, Berger’s In physician such a claim. Mrs. was called he her witness not asked if but even the assault any upon had, opinion, had his effect her. Here was a physician continuously who her had treated for one and one- years assault, upon half before professionally called day after, thoroughly and examined her on day, the next being after told her of the assault. He treating continued years her for over one and one-half after the assault. Here qualified was a witness on the stand who. professionally express opinion an any. on whether there had been after- upon Berger Mrs. as a result of the effect assault. The failure Berger testify of to such effect of her failure physician ask supports counsel to about it an inference testimony, elicited, 'that if such would be unfavorable to Mrs. Berger’s case. repeatedly
It damages has been held should not speculation, be awarded conjec basis surmise (14 481.) However, ture. assault, Cal.Jur.2d a sexual ;is itself, damages. a sufficient basis for a substantial -award of Furthermore, holding we are not to be understood as plaintiff may damaged in not have been the amount awarded. n may support The record a retrial well such an amount. holding presented What we are the record us is not support $21,000. sufficient to award of burden an The damages proving to this extent was met although power easily produce it was within her such proof, put if it existed. The should not have - jury in. the position attempting difficult assess total damages thereof direct evidence other sustained without than itself. her mere account of the assault remanded to judgment and the cause is reversed *10 the of solely upon for a retrial the issue of amount lower court damages.
Bray, J., concurred.
PETERS, P. J. I dissent. fairly I fully the facts. majority opinion
The states opinion except is said agree everything said that what majority hold issue the damages. on the of On that issue disagree. proof. I that there was a failure prove agree plaintiff all I the was on the that burden of proving, the that had ease, elements of she burden It is certainty, damages the suffered her. with reasonable nor her undoubtedly plaintiff wit- also true that neither by the any lasting nesses after effects caused testified a not there was failure assault. But does follow that years three Suppose plaintiff had testified that proof. Would after were no discernible aftereffects. the assault there damages at all? Would mean she could recover no that that proof on the issue that there had been a failure that mean damages? course not. Of plain- The jury The was informed of the facts the case. that she was too shocked tiff testified after assault plaintiff delicate, a report jury it. The knew that sickly sexually pullman a who had been assaulted woman plaintiff physical porter. The testified detail as jury The before and at time of the assault. condition is, rape to be that forceable under such did have told The revolting humiliating experience. circumstances, a jury This was itself plaintiff observed the trial. jury could tell she or was not a evidence. whether jury, composed of mature woman of fine sensibilities. The women, properly men could for themselves determine judge trial also effect of assault such a woman. The motion plaintiff. for saw and observed the He denied a too, presumed trial. must be to have determined He, new revolting rape experience. this Under was a circumstances, these there is no evidence of dam- hold that age, unsupported,, to substitute the the verdict for find- appellate justices views two on a factual issue ings contrary judge. and trial That to well- principles. settled judgment respects.
I would affirm all A petition rehearing September 14, 1956. denied Peters, J., P. was of opinion petition should be granted. Dist., Aug. 16, No. 21788. Second Div. One.
[Civ. 1956.] BEVERLY Petitioner, JOY TROWBRIDGE, v. SUPERIOR Respondent. COUNTY,
COURT OF LOS ANGELES