B'ham Ry. L. & P. Co. v. Glenn

60 So. 111 | Ala. | 1912

SOMERVILLE, J.

1. The first count of the complaint showed the relation of common carrier and passenger between plaintiff and defendant, and sufficiently alleged the negligence of defendant. — B. R., L. & P. Co. v. Gonzales, 61 South. 80; B. R., L. & P. Co. v. Barrett, 4 Ala. App. 247, 58 South. 760, and- the cases therein cited.

2. The third count shows the same relation, and.alleges that, while plaintiff was defendant’s passenger on its car at East Lake, its servant or agent on said car, and in charge thereof, wrongfully used profane, abusive, or insulting language in the presence and hearing of plaintiff, as a proximate result of which “plaintiff was greatly humiliated, and suffered great fright and anxiety, and was greatly shocked, and suffered great mental pain and anguish.” The trial court overruled defendant’s demurrers to this count. Appellant’s argument is that the’ count fails to state a cause of action, because it does not show any damage other than mental suffering, for which, standing alone, there can be no recovery. Conceding the sufficiency of the assigned grounds of demurrer (which, however, are very general) to raise this objection, the objection was not valid; for, whatever the rule may be in some other states, it is settled by a former decision, of this court that it is an actionable breach of the carrier’s duty to negligently permit other passengers to use profane or insulting language in the presence of a female passenger. — Southern Ry. Co. v. Lee, 167 Ala. 268, 52 South. 648.

And, indeed, this seems a necessary corollary to the general principle, frequently declared by this court, that carriers “are under the duty of protecting each passenger from avoidable discomfort, and from insult, from indignities, and from personal violence.” — B. R. & E. Co. v. Baird, 130 Ala. 334, 344, 30 South. 456, 459 (54 L. R. A. 752, 89 Am. St. Rep. 43). As said by McClellan, C. J., in that case: “It is not material whence the disturbance of the passenger’s peace and comfort and personal security or safety comes or is threatened. It may be from another passenger, or from a trespasser or other stranger, or from another servant of the carrier, or, a fortiori, from the particular servant upon whom the duty of protection peculiarly rests.” See, also, Culberson v. Empire Coal Co., 156 Ala. 416, 47 South. 237; Southern Ry. Co. v. Nelson, 148 Ala. 88, 41, South. 1006.

To prescribe the duty of protection from insults and indignities, and yet hold the carrier immune to liability for the only consequence that can ordinarily result therefrom, viz., mental suffering, would be simply a contradiction in terms. That damages are recoverable in such cases, without physical injury, is by no means a novel doctrine, for it is stated with apparent approval, and with the citation of authorities, in 4 Elliott on Railroads (2d Ed.) p. 961.

Of course, it is not every epithet, which is abusive or insulting to the person to whom it is addressed, that would be also insulting to the female in whose hearing it is spoken. But such language as is by common consent among civilized people regarded as vulgar, coarse, immodest, and offensive to ordinary female sensibilities, or disrespectful to the female presence, must neither be tolerated by the carrier’s servants in others, nor indulged in by themselves, in the presence or hearing of a female passenger. The rule, and the resulting liability, grow out of the specific contract duty owed by the carrier to its female passengers in this regard, and hence the general rule as to damages for unassociated mental suffering has no application.

We need not determine whether the alternative charge of abusive language renders the count defective. We have already pointed out that language may be abusive with respect to the person to whom it is addressed, and yet not justly offensive to even a female passenger, Avithin the operation of the rule stated. But the demurrer does not specify this objection.

3. Plaintiff’s Avitness, Mrs. Chambers, who was on defendant’s car at the time plaintiff Avas injured, after testifying to a violent jerk of the car after plaintiff rose to her feet to get off, and her fall backwards between two of the seats, Avas allowed against defendant’s objection to state that plaintiff’s husband, Mr. Glenn, Avas then standing on the car steps with his little boy in .his arms, and that the car jerked him off with the little boy. As part of the res gestse of the occurrence, and in some measure illustrative of the character and setting of the alleged jerk, these circumstances were fairly admissible in evidence.

4. Plaintiff’s witness, T. H. Chambers, who was also on the car at the time, was alloAved against defendant’s objection to state that the car did not, on the occasion specified, “stop long enough for a person sitting in the car to get to the side and get down and get off.” The objection was that this Avas but a conclusion of the witness. The statement is, in effect, but a comparison of two periods of time, either of which might be difficult to estimate in minutes or seconds, and the affirmation that the time required for a passenger (any passenger) to get from his seat (any seat) to the ground is longer than Avas the period of this particular stop. This must-be regarded as the statement of a collective fact, although it involves a conclusion also, and its alloAvance was not reversible error. A strikingly analogous case Avill be found in Kroell v. State, 139 Ala. 1, 12, 36 South. 1025. It may be that the witness was not qualified by observation or experience to state the time ordinarily required by a passenger for a complete debarkation, but the objection did not take this point.

5. Social or business, as well as family, relations existing between a witness and the party who calls him to testify, may always be shown as bearing upon the veracity or bias of the witness. But the nature of any particular and isolated business transaction between the witness and the party is scarcely pertinent to that inquiry, or, if so, its probative value is too problematical to require its admission. In such cases much must .ibe confided to the sound discretion of the trial judge in determining the proper limits of cross-examination. We think the allowance of the question propounded on cross-examination to the witness Chambers, “What kind of business did you have with Mr. Glenn?” referring to a single and particular occasion, was within the discretion of the trial judge, and its rejection not reversible error, especially in view of the fact that it concerned Mr. Glenn, and not the plaintiff, Mrs. Glenn.

6. The testimony of plaintiff, and of her physician, Dr. Guin, was sufficient to carry to the jury the question of the permanence vel non of plaintiff’s injuries, and the affirmative charge on that proposition was properly refused to defendant.

7. In support of the third count of the complaint, plaintiff offered testimony tending to show the use of profane language in plaintiff’s hearing by a conductor of defendant’s car. As is frequently the case, two cars were being operated together. The motor car was in front, with a “trailer” attached to it behind; each having its own conductor. The complaint charges that the offensive language was used by a servant on and in charge of the car on which plaintiff was riding, while the evidence showed that it was used by the conductor of the motor car while on that car, and that plaintiff was riding on the trailer. The two cars were operated as one, and to all intents and purposes, at least for the purposes of this count, they may well be treated as one. The duty of defendant’s servants to plaintiff was in this respect the same, whether they were stationed on the front car or on the rear car, and the injury to her, if any, was exactly the same. We think the allegations of the complaint were broad enough to cover the case made by the evidence, and that, under our decisions on this subject, there was no material variance. — B. R., L. & P. Co. v. Lide, 177 Ala. 400, 58 South. 990, and cases there cited.

Nor was there any material variance between the complaint, which placed the venue of this offense “at East Lake,” and the evidence, which showed that it was “at the loop at East Lake,” ■ although the station designated as East Lage was at another point. — B. R., L. & P. Co. v. Lide, supra.

Whether or not plaintiff suffered mental distress in consequences of the alleged offensive language was an inferential fact, to be gathered by the jury from the nature of the language used and the circumstances of the case. Direct proof was not required, and, indeed, was not permissible. The general affirmative charge as to the third count was, therefore, properly refused to defendant.

8. The first count of the complaint charges that plaintiff was thrown down and injured while engaged “in or about alighting” from the car. The evidence shows that the alleged injury occurred very soon — almost immediately- — after plaintiff arose from her seat for the purpose of leaving the car. It would seem that a seated passenger is “engaged in alighting” from the moment of arising for that purpose until he gets clear of the car, supposing there is no interruption of his passage. But, however this may be, .there can be no question but that “in or about” is broad enough, in its ordinary signification, to cover the entire passage from the car from beginning to end. There was no variance here, and the affirmative charge was properly refused to defendant as to the first count.

9. Plaintiff’s husband testified that, when he remonstrated with the conductor about jerking the car, the latter replied, “G- d -you, I am running this ■carand plaintiff testified that she heard this. If this •testimony was true — and the jury might have believed It was — the infliction of punitive damages under the third count was clearly a question for the jury. The general instruction against punitive damages was, therefore, properly refused to defendant.

10. The trial court severally refused to give to the jury the following charges, requested by defendant in writing:

(15) “In determining the credit you will give the testimony of a witness, you may consider the friendship, if any is shown by the evidence, that such witness has for one of the parties to this suit.”

(17) “If you are reasonably satisfied from the evidence that Mrs. Alice Glenn has made a contradictory statement about any material fact in this case, then you may consider such contradictory statement in determining what weight you will give the evidence of Mrs. Alice Glenn.”

A long line of decisions in this state have recognized and applied the rule of trial practice that charges which single out, and thereby give undue prominence or emphasis to, particular parts of the evidence, are properly rejected by the trial court, although giving them is not erroneous. But it has also been frequently declared that charges such as these here exhibited belong to an exceptional class, and that refusal to so instruct the jury on request is such error as to require the reversal of the judgment. A review of these decisions is unnecessary, and would be unwarranted. They have marked the distinction stated, and defined the rights of parties with respect to such instructions, during a period of nearly 25 years, and their practical application is now .well understood by the profession.— Smith v. State, 88 Ala. 73, 77, 7 South. 52; Harris v. State, 96 Ala. 24, 28, 11 South. 255; Roberts v. State, 122 Ala. 47, 54, 25 South. 238; Hale v. State, 122 Ala. 85, 89, 26 South. 236; Hammond v. State, 147 Ala. 79, 89, 41 South. 761; So, Cotton Oil Co. v. Walker, 164 Ala. 33, 53, 51 South. 169, 175; Griffin v. State, 165 Ala. 29, 46, 50 South. 962. See, also, Kress v. Lawrence, 158 Ala. 652, 47 South. 574; B. R., L. & P. Co. v. Wiggins, 170 Ala. 540, 54 South. 189.

The principle of these cases is that where particular evidence is offered for a particular and limited purpose, collateral to the main issue, as in the case of all impeaching or discrediting evidence, parties have a right to have its proper function and its limited operation presented to the jury by an appropriate instruction. An inspection of the testimony before the jury shows that neither of these charges was abstract, and we are therefore bound to hold that their refusal was reversible error.

Reversed and remanded.

All the Justices concur.