40 S.W.2d 356 | Ky. Ct. App. | 1931
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *5 Affirming.
This appeal presents for review the trial of an action by Lucille Brumfield, appellant, against the Consolidated Coach Corporation, appellee, for an alleged breach of contract arising out of the purchase of a ticket by her of the agents of the appellee for transportation from Lexington, Ky., to Danville, Ky., on the 16th day of July, 1927, at its Union Bus Station, located at 110 Walnut street, Lexington, Ky. On that date she purchased from its agent a ticket "for a continuous trip from Lexington to Danville, Ky. for which she paid $1.40." After purchasing the ticket, about 4 p. m. she presented herself at the door of the bus which was leaving Lexington at that hour for Danville, when she claims she was refused admittance and passage, there being at the time ample and sufficient room, the bus having several vacant seats on it.
As a result of the person in charge of the bus refusing to permit her to become a passenger on it, she was compelled to remain in Lexington longer than she intended, by reason of which, she alleges, she was inconvenienced, worried, humiliated, and suffered mental anguish. This language is found in her petition:
"The plaintiff states that the defendant is a common carrier for hire, under the laws of the State of Kentucky and as such common carrier, holds itself out to the public as a carrier of passengers to the capacity of its bus and it is the duty to carry all suitable persons who offer themselves in conformity with the reasonable rules of the company and the laws of the State of Kentucky. The plaintiff, Lucille Brumfield, states that she is a colored person of the negro race and that she was discriminated against by the said defendant, its agents or employees without good cause; that it is the duty of defendant to *6 provide equal and suitable accommodation for colored as well as white passengers between the points of its preparation."
The appellee filed a special demurrer and motion to strike certain provisions of the petition, which were overruled. On the 29th day of October, 1927, it filed an answer merely traversing the petition. On the 6th day of April, 1929, it filed an amended answer, wherein it set up as a defense that on the 16th day of July, 1927, and prior thereto, it had been its custom to reserve seats on its bus for passengers who would call by phone, and engage with it so to reserve seats, and that on this particular occasion, at the time appellant applied for passage, its seats had been reserved by other passengers in accordance to this custom, and that it notified plaintiff of this fact at the time, and that its next bus would leave Lexington for Danville about 5 p. m., but that she refused to accept passage on this second bus. To this amended answer, a demurrer was sustained and the action was remanded to the rule docket. On the 2d day of May, 1929, the appellee filed a second amended answer wherein it alleged "that for sometime prior to the 16th day of July 1927, it had established a rule in reference to the operation of its buses wherein drivers, ticket agents and employees were authorized and instructed to reserve seats for any passenger who might call or notify them prior to the leaving time of said bus, and under said rule the said bus driver was authorized and directed to reserve these seats as directed by the prospective passengers. This rule was known to the employees and agents of said defendant and had been in effect for some months prior to the above date and on the above date two passengers had called from the Drake hotel in Lexington and reserved two seats on the bus upon which plaintiff applied for passage; that all seats were occupied at the time except two, and that the driver of said bus acting under said rule as to reserving the seats refused to accept plaintiff because all of the seats were occupied except the two reserved as herein set out." It further alleged that prior to July 26, 1927, it had adopted a rule not to permit any greater number of passengers to board its bus than there were seats upon it for passengers; provided there was another bus going over the route in a reasonable time, and that another bus was to follow the one upon which the plaintiff sought passage within a *7 short time thereafter. It alleged that it was acting under such rule or regulation in refusing to accept plaintiff as a passenger. Appellant moved to strike certain portions of this amended answer. Her motion was overruled. She entered a motion to require it to file a certified copy of the rule. She filed a general demurrer to this amended answer and, by order, it was submitted on her general demurrer. Thereupon time was given appellee "to file a memorandum." On the 4th day of September, 1929, she filed a reply to the amended answer, the first paragraph of which is a denial. In the second paragraph, she averred
"that the said driver for the said company has no legal right or any right whatsoever to adopt any rule, regulation for the governing and regulation of its busses applying to its patrons unless such be and is reasonable and equally applicable to each and all applicants for transfer and transportation alike."
On the 19th day of November, 1929, a jury was impaneled, and during the progress of the trial the appellee tendered a second amended answer, to the filing of which the appellant objected. The court permitted it to be filed, to which she objected. On the filing of this amended answer "the court then stated to the plaintiff that if it was desired by the plaintiff and she would move the court to that effect, that the court would enter an order setting aside the swearing of the jury and continue the case at defendant's cost. . . . The plaintiff stated that she desired not to have the swearing of the jury set aside. Thereupon the affirmative allegations of the amended answer were taken as controverted of record." In this second amended answer, the appellee stated that it could not comply with the order of court requiring it to file a memorandum because the rule was verbal and not written or printed, nor was it written or printed at the time plaintiff claims she was refused passage, but that it was, in effect, as set out in its first-amended answer. The trial progressed to a verdict, and the jury found for the appellee. The appellant entered a motion for a judgment non obstante verdicto and at the same time filed motion and grounds for a new trial, which were overruled. During the examination of the jury touching their qualifications, the appellant propounded to the jurors this question: "Do any of you object or *8
believe that colored people should ride on busses with white people?" The appellant was clearly within her rights when propounding to the jury this question. The propriety of such inquiry has been generally recognized. Pinder v. State,
In the Aldridge Case, supra, the United States Supreme Court, said:
"The right to examine jurors on the voir dire as to the existence of a disqualifying state of mind has been upheld with respect to other races than the black race, and in relation to religious and other prejudices of a serious character."
To the question of appellant, several jurors answered with the statement that they did not believe they should be permitted so to ride. Thereupon the court asked each and all of the jurors if:
"In the event the court should instruct the jury that colored persons including the appellant had under the law a right to ride on defendant's bus at the same time white persons were riding, and this being the law of the case could you and would you follow the law in this respect as given by the court and would you wholly disregard your private opinions as to the rights of the plaintiff to ride on the bus with white people and try the case according to law as given by the court? To this question several of the jurors answered in the negative and each and all of said jurors so answering were excused for cause by the court and only prospective jurors were retained who answered the above question of the court in the affirmative, to which ruling of the court plaintiff objected and excepted."
On the completion of the trial by the jury, it returned a verdict for the appellee. A judgment was entered accordingly, from which appellant appeals, complaining (a) error in allowing prejudiced jurors to sit in the trial of the case; (b) error in permitting evidence of verbal *9 rules; (c) verdict is against the preponderance of the evidence; (d) refusal of the court to give instructions asked for by her; (e) error in instructions given to the jury; (f) verdict of the jury is against the instructions given by the court.
As to the first complaint of appellant, it may be stated that we recognize it as fundamental, and it goes to the very root of the administartion of justice, that the parties litigant are, in jury trials, entitled to have their causes heard by an unbiased and unprejudiced jury. Leadingham v. Com.,
"Discretion" as here used "means sound discretion, that is, discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under circumstances and law, and directed by reason and conscience of judge to a just result." Langnes v. Green,
She urges that the court erred when he permitted evidence of an oral rule of appellee. She insists that only a written rule or regulation may be relied on as a defense in such cases. She cites and relies upon the cases of L. N. R. R. Co. v. Taylor's Adm'r, 104 S.W. 776, 778, 31 Ky. Law Rep. 1142; Reasor v. Paducah Ill. Ferry Co.,
In the Taylor Case the decedent was struck and killed by a freight train. On the trial of an action by his administrator to recover damages for his death, witnesses for the railroad company were examined as to certain written rules of the company concerning the duties of its employees in the performance of its duties, which rules were not produced at the trial. We there stated, in discussing the admission of such evidence, that "regularly the written rules should always be produced before any testimony is allowed as to their contents; but in this case what was admitted about the rules bore so remotely upon the issue which the jury were to try that we do not see that the substantial rights of the appellant were prejudiced. . . . The witnesses had been introduced by appellant to show that the train was not running over 15 or 16 miles an hour." The question under consideration in that case was the competency of oral testimony as to the contents of written rules.
The Reasor Case was an action for the wrongful ejectment of passengers.
In the Austin Case the passenger reached the station about 6:30 p. m. to take the train at 7 p. m. She had her ticket. When the train arrived, she could not board it on account of the crowd. There was an enormous crowd, and before she got near the steps or had an opportunity to get on the train it pulled out. She and her party then hired a wagon and drove a distance of ten miles, and although it had been very hot during the day the night was cold and she had no wrap. A verdict was returned in her favor in the sum of $200. The basis of the recovery was failure of the train to stop a reasonable length of time for the passengers to board it.
In the Ponder Case, a passenger who boarded the train without a ticket refused to pay a higher fare prescribed by the company. Recovery was denied.
The Turner Case was an action for personal injury, and it was there held "the rule prohibiting the opening of water-closets on trains at stations was reasonable and the railroad company had a right to adopt and enforce it." *11
In no one of these cases was the question of the right of the carrier to adopt and enforce a usage, rule, or regulation which had not been previously written, or printed, and so published. The Siller Case, cited by appellant, will be hereafter considered. The contention that the appellee was without right and power to make a rule or a regulation affecting passengers, except and unless it was written or printed and adopted by the corporation itself acting through its directors, overlooks the marked and universally recognized distinction between by-laws and regulations or custom and usage. By-laws are for the government of the officers in dealing with the corporation, and must be adopted by the body of the stockholders or by the board of directors.
All regulations of a company affecting its business, which do not operate upon third persons, nor in any way affect their rights are properly by-laws of the company. Rules and regulations which operate upon and affect the rights of others are not within the operation of the principle of by-laws, State v. Overton,
A carrier of passengers not only has the power, but it is its duty, to adopt such rules and regulations as will enable it to perform its duties to the traveling public with the highest degree of efficiency, and to secure to its passengers all possible convenience, comfort, and safety. Ala. G.S.R. v. Carmichael,
The adoption and enforcement of such regulations are subject to the requirement that they must be reasonable. The reasonableness of such regulations is a question of law for the court and not for the jury, for the obvious reason that if this question should be left to the jury, on the trial, one jury might hold such rule was reasonable and another might hold the same rule or regulation was unreasonable. Thus, its uniformity and permanency, the essential qualities of every regulation, would be destroyed. See cases, supra.
In C. O. R. R. Co. v. Spiller, supra, the duty and the right of a carrier of passengers to adopt and enforce regulations and rules was stated in this language:
*13"A rule of a carrier, the enforcement of which will generally redound to the comfort, convenience, safety, and health of the traveling public is a reasonable one. It is the duty of a carrier in the interest of the traveling public to adopt reasonable rules and regulations for the operation of its trains, and it is likewise the duty of a passenger to obey such rules and regulations when requested."
In that case we quoted from Hutchison on Carriers, vol. 2, sec. 1077, as follows:
"The passenger takes his ticket always with the understanding that he will conform to the reasonable regulations of the carrier as to the conduct of the carriage; and it has been held that an obedience to such regulations is a condition of the contract to carry, though not expressed in the contract or known to the passenger."
A ticket in this state is not a contract of carriage, but only a memorandum of the agreement. I. C. R. R. Co. v. Fleming,
A ticket entitles a passenger to transportation within a reasonable time, and not on any particular train or bus or other vehicle in use by the carrier. Campbell v. Milwaukee R. L. Co.,
It is true that "the right of a pasenger to be carried by a common carrier is superior to its rules and regulations which it has the power to make and this right of the passenger cannot be affected by them, but the accommodations of the passengers while boarding the vehicle for transportation or being transported is subject to such rules and regulations as the carrier may deem proper to make, provided they are reasonable and apply generally to all alike and are of a permanent nature and not made for particular occasions or emergencies." Day v. Owen,
At common law, inability of a carrier to carry a passenger for want of room in the vehicle used in the business of the carrier was a justification of the carrier in refusing to transport the proposed passenger and excuse it from liability therefor. See cases, supra. This common-law rule has not been changed or altered in this state by statutory enactment. The appellant here complains that the appellee refused to permit her to board the 4:15 bus for the purpose of transportation at that particular time. This right of appellant to board that bus at that definite time was subject to the rules and regulations of the carrier, in existence and in operation at that time and prior thereto, which affected the general public including the plaintiff as a member of it. The refusing to permit her to board the 4:15 bus for transportation was nothing more nor less than denying her that certain accommodation at that hour while making the trip from Lexington to Danville, Ky., which, according to the appellee, was in compliance with its rules and regulations controlling the rights of the passengers and of the appellee in the transaction of its business. If in the prosecution of its business by its agents and employees according to permanent, reasonable, and uniform rules and regulations governing its business as a common carrier, the seats in the bus at the time were occupied or contracted for by the other passengers, it was justifiable in refusing appellant passage and transportation on the 4:15 bus. A common carrier cannot receive and reject passengers at its pleasure. Hollister v. Nowlen, 19 Wend, (N.Y.) 234, 32 Am. Dec. 455; 2 Kent, 55; Cole v. Goodwin, 19 Wend. (N.Y.) 251, 32 Am. Dec. 470. If a carrier refuses to receive a passenger with a ticket, or qualified to purchase a ticket from it, without sufficient excuse, it will be liable to an action for damages. Story on Bailments 328; Jeremiah on Carriers 59, 2 Kent. 599. Another way of expressing it is, the law requires a carrier to receive and transport passengers without discrimination and with impartiality (Winnegar's Adm'r v. Central P. Ry. Co.,
In the absence of statute, a carrier of passengers may, by reasonable rules and regulations, prescribe the number of passengers that shall ride at any one time on any of its cars or vehicles, and further adopt and enforce rules providing that when its coaches or vehicles contain the prescribed reasonable number, others desiring passage may be refused admittance by its agents. Com. v. South C. Ry. Co.,
A different rule obtains where the breach of such contract of carriage is tortious. L. N. R. R. Lighting Co. v. Comley, supra; L. N. R. R. Co. v. Manness,
If such rules affect the entire traveling public and the usual and general business of the passenger traffic, it may be communicated and made known to the public in any manner sufficient to answer its purpose, in the absence of statute to the contrary. L. N. R. R. Co. v. Turner,
"The court instructs the jury that, before they can find for defendant on account of the custom referred to in instruction No. 4, they must believe from the evidence that such custom was reasonable and of such age, such uniformity of observance at the point of delivery of the logs, such certainty and fixedness of character, and of such notoriety, that a jury would feel clear in saying that such custom was known to the plaintiff at the time of the making of the contract." Thomas v. Charles (Ky.)
119 S.W. 752 ,754 .
Such custom, when relied on as a defense, must be pleaded before evidence of it may be admitted. Mowbray Robinson Co. v. Kelley,
In the discharge of its duty as a public carrier, a bus company must use their public conveyances and buses, owned and set apart by it for that purpose, for the transportation of passengers, without favor or discrimination, to all persons offering themselves for transportation who pay or are willing to pay the customary charges, unless such person is objectionable on account of contagious disease or some abnormal condition, or of bad, dissolute, or doubtful character, such as those who interfere with the carrier's patronage. See note to Pearson v. Duane, supra,
In Day v. Owen, supra, an action was instituted to recover damages because of a refusal to allow Day, a colored man, to take cabin passage on defendant's boat from Detroit to Toledo. The Supreme Court of Michigan, in the case used this language:
"The refusal to allow plaintiff the privilege of the cabin, on his tendering cabin fare, was nothing more or less than denying him certain accommodations, while being transported, from which he was excluded by the rules and regulations of the boat. All rules and regulations must be reasonable; and to be so, they should have for their object the accommodation of the passengers. . . . As the duty to carry is imposed by law for the convenience of the community at large, and not of individuals, except so far as they are a component part of the community, the law would defeat its own object if it required the carrier, for the accommodation of particular individuals, to incommode the community at large." West Chester Phila. R. R. Co. v. Miles,
55 Pa. 209 , 93 Am. Dec. 744; Com. v. Power, supra. Ohio Valley Ry.'s Rec. v. Lander, supra.
This pronouncement of the Michigan Supreme Court is peculiarly applicable to the facts of this case. The appellant insists that her ticket entitled her to transportation on the 4:15 bus and the carrier was without right to adopt and enforce, to promote its business and for the convenience and accommodation of the community at large, a regulation or rule or custom and usage which deprived her of the privilege of traveling on that particular bus at that particular time, however reasonable and essential same may be to it. She insists her right to that privilege was inviolate and superimposed an absolute duty on the appellee, and, because of its failure to permit her to exercise such privilege, it is liable to her in damages. We know of no rule that requires a common-carrier of passengers for hire to yield to the disposition of passengers, arbitrarily to determine for themselves as to the coach or vehicle in which they may take passage. They are entitled to be transported within a reasonable time without discrimination and without favoritism or partiality, but are without right to select the coach or vehicle or the seat thereon which they will occupy. Day v. Owen, supra. C. O. Ry. Co. v. Wells,
By the allegations of her petition to which we have alluded, she recognized it to be the duty of the appellee (a) to carry passengers only to the extent of the capacity of the bus; (b) its right to refuse admittance to passengers after its seating capacity was exhausted; (c) the right of appellee to adopt and enforce reasonable rules and regulations, and her duty to submit to their enforcement. In the presentment of her case here she recedes from these admissions in her pleadings and insists that it was only her duty to submit herself to written rules, and that appellee was without right to refuse her admittance if a seat in the bus was not physically occupied by another passenger. While it was the duty of appellee to admit passengers as long as it had a seat in its bus not at the time physically occupied or previously engaged by another passenger, it was its corresponding duty not to permit its bus to be overcrowded with passengers. If it permitted its vehicle to be overcrowded, and, by reason thereof, a passenger was injured, it would have been liable in damages to such injured passenger. Southern C. C. S. R. v. Harris,
The insistence that the verdict is against the preponderance of the evidence is largely based upon the ground that the court erred in admitting evidence of the oral rule or regulation relied on. Our views hereinbefore expressed dispose of this phase of the case. The appellant and her witnesses testified that the appellee's driver acted impudent and insulting toward her at the time he refused to admit her to take passage on the bus. This alleged tortious conduct is not relied on in the petition, and such evidence was not admissible as evidence upon which a recovery could be had, but it was admissible as part of the res gestæ. The appellant did not set up in her petition as part of her cause of action the tortious conduct of the driver about which she and her witnesses testify. Therefore, she was not entitled to an instruction authorizing a recovery predicated thereon. Edge v. Ott,
In the instructions given by the court to the jury, the court set out such facts as in law constituted "a reasonable rule," and thus the facts upon which the rule to be reasonable, within the meaning of the law, were stated in the instructions. The appellant now urges that the question whether the rule was reasonable should have been submitted to the jury. The interpretation and reasonableness of the rule was one for the court and not for the jury. We have discussed this question elsewhere and it is not necessary or required that we again discuss it under this topic. However, the interested reader is referred to the case of Pullman Co. v. Krauss,
Another complaint is made that the court erred in refusing to give to the jury instructions offered by the appellant. The instructions offered were written on the theory that the separate coach law, section 795 Ky. Statutes et seq., apply to a person, company, or corporation operating a bus line as a common corrier. The language of this statute does not include such carrier of passengers. In the absence of a statute, the common law must be looked to for the applicable law. A further difference between instruction No. 4 offered by her and those given by the court, is, it required the defendant to give actual notice of the rule relied upon as a defense, before it could affect her right to recover. The authorities, cited supra, bearing on the subject of notice is sufficient consideration of this question. In addition, it may be said that in her petition, from which we have heretofore quoted, she conceded that the appellee was under no obligation to accept her for transportation if the seating capacity of the bus was taken when she tendered herself *23 as a passenger, and that she tendered herself subject to the rules of the company. The instruction offered recedes from this position, and requests the court to place upon the appellee a burden which her pleading conceded did not rest upon it. The court did not err in refusing the instructions offered and in granting those given to the jury. The court was careful to say to the jury by instruction No. 3 that "The defendant, Bus Company, is required under the law to make no discrimination between persons applying for passage on its bus on account of race or color." The appellant as we have stated, charged that the appellee refused her passage "without good cause," and did not thereby or otherwise charge the appellee with discrimination on account of her race or color, nor seek damages on account thereof, yet the court, through an abundance of caution, and in order to secure absolute assurance that the jury would not suffer itself to discriminate against her on account of race or color, properly gave it to the jury. Having failed in her petition to allege as an element of her cause of action that she was refused admission to, and transportation on, its bus because of race or color, she is not entitled to, and cannot, complain, because that theory was not presented by an instruction. Edge v. Ott, supra; Ætna Life Ins. Co. v. McCullagh, supra. She was entitled to a fair and impartial trial without discrimination because of her color or race, and instruction No. 3 is all the law could do to secure her this type and character of trial. Technically, her pleadings did not authorize its giving to the jury.
The fact she purchased a ticket and was transported by appellee on the day of the occurrence complained of on one of its busses, and accorded the same treatment and service as other passengers, both white and colored, so far as the record shows, it doubtless was astonishing to the jury that she at 4:15 p. m. of the same day would be mistreated and discriminated against by the same bus company and its employees as she now complains. The fact she was received and transported with convenience, comfort, and satisfaction in the forenoon of the same day, by the same bus company and its employees, was conducive to persuade the jury that there was possibly a misconstruction of the conduct of appellee's driver on the part of herself and witnesses. The jury may have concluded that oversensitiveness was the basis of the complaint of appellant. It was her duty, even if correct in her contention, to minimize her damages. Byars v. *24
Hammock,
Other objections were made, and exceptions saved, during the progress of the trial, which are not discussed in brief of counsel for appellant and for this reason we regard same waived. On the whole case after close scrutiny and painstaking examination of the record, we are convinced that appellant has received at the hands of the jury a fair and impartial trial, under correct and appropriate instructions, given by a fair and impartial judge.
Wherefore the judgment is affirmed.
Whole court sitting.
