187 Ky. 213 | Ky. Ct. App. | 1920
Opinion op the Court by
Reversing.
Defendant (appellant) is seeking tbe reversal of a judgment for $5,000.00, obtained by plaintiff at tbe bands of a jury.
Tbe court sustained a motion for a directed verdict made by tbe Cincinnati, New Orleans & Texas Pacific Railway Co., a co-defendant.
Plaintiff took passage in a Pullman car in November, 1915, at Tuscaloosa, Alabama, destined for Greorgetown, Ky., and sbe alleges that after retiring for tbe nigbt sbe was awakened by some person invading tbe privacy of ber bertb and placing tbeir bands upon ber
We will discuss the several points urged for reversal in the order presented.
The court did not err in overruling the motion for a peremptory instruction; there was sufficient evidence to take the case to the jury, as will he seen later, when we take up the question of evidence. Instruction No. 1 is not erroneous; it reads:
“You are instructed that it was the duty of the defendant, Pullman Company, to guard and protect the plaintiff from any annoyance and assault so far as could reasonably be done by the exercise of ordinary care, while she was a passenger riding in its ear; and if you believe from the evidence in this case that the privacy of plaintiff’s sleeping apartment was invaded one or more times, or that (while so occupying said apartment) she was subjected to assault by having the hands of some person placed upon her against her will; or that a ring was taken from her hand against her will, and that by each, or any, or all of said acts she was injured, or frightened, or humiliated, or shocked; and that each, or any or all of said acts might have been prevented by the exercise of ordinary care and vigilance under the circumstances then and there existing upon the part of the agents and servants of the defendant in charge of said car, then the law is for the plaintiff, and you will find a verdict for her against the said company, and if you do not so believe you will find for the defendant.”
It is argued that such instruction was susceptible of the construction that the action of the conductor in grabbing plaintiff’s arm when she was going to the diner, as brought out in the proof, might have been considered by the jury to have been embraced in the language employed. We do not so understand it, but since a reversal must be ordered for other reasons, the court upon a retrial will insert the parenthetical clause found above. This will
Instruction No. 2 is erroneous in two particulars, (1) there was no evidence that the assaults complained of were made by any agent or seryant of the defendant and hence any reference to this fact should not have been embodied in the instruction. (2) It contained the further vice of. allowing the jury to find punitive damages.
To authorize an instruction on punitive- damages it must be shown that defendant had acted wantonly, recklessly, oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations. L. & N. R. R. Co. v. Wilkins, Grd’n, 143 Ky. 572, 136 S. W. 1023, in which case the court quotes with approval the following language found in Central Kentucky Traction Co. v. May, 126 S. W. 1092:
“Punitive damages are not authorized and should never be allowed, in any case, where there is not some evidence tending to show that the defendant has- acted maliciously, willfully, or with such gross negligence as, to indicate a wanton disregard of the rights of others (Koestel v. Cunningham, 97 Ky. 421), or, where there is conduct on the part of the defendant indicating a purpose to have plaintiffs injured or of a reckless disregard of the' safety of plaintiff’s person (McHenry Coal Co. v. Sneddon, 98 Ky. 684).”
See also South Covington & Cincinnati Street Ry. Co. v. Barr, 147 Ky. 549, 144 S. W. 755; L. & N. R. R. Co., v. Logan’s Admrx., 178 Ky. 29, 198 S. W. 537.
The record contains no evidence of any conduct or misconduct on the part of defendant’s agents or servants sufficient to bring the case within the rule stated above and the court erred in submitting this question to the jnry. ■
It is said the verdict is not -sustained by the evidence' but with this contention we cannot agree. Plaintiff testified : She was on her way to visit her grandmother at Falmouth; she left Tuscaloosa about 4:40 p m.; she had twenty dollars in her shoes, and some remark was made by her school friends not to take off her shoes; this was in the presence of the porter and conductor; she retired about 8:30; about 11 p. m. she was awakened and put her hand out and touched a large, rough hand, which was jerked away; she turned on the light in the berth, rang the bell and in about ten minutes the conductor came and
The Pullman conductor tried repeatedly to talk to her; offered to assist her to the diner; she declined and “he kinda grabbed her arm;” she was in a state of collapse when she reached Georgetown; cried all the way to Falmouth; couldn’t control herself; wouldn’t go to her room alone, in the daytime; she is still nervous and can not sleep alone; she was never sick before. She went to see a physician the second day after she reached Falmouth. Her testimony as to her nervous condition is corroborated by other witnesses, including her mother.
The .physician, visited by plaintiff at Falmouth, gave his deposition in which he said he had known plaintiff all her life; that he saw her on November 26th, in his office; she was then suffering from a skin affection; she was anaemic and in a generally run down condition. He regulated her diet and gave her a tonic; his treatment lasted for about three weeks; “she seemed to have improved when she left. He did not recall that the patient said anything to him about any disturbance on the railroad train, or mentioned the loss of her ring.
The rule governing sleeping ear companies is thus stated in Pullman Palace Car Co. v. Hunter, 107 Ky. 519, 54 S. W. 845, 47 L. R. A. 286:
‘ ‘ The main inducement offered to the traveling public to occupy sleeping cars, and to pay the extra fee charged therefor, is that the fatigue and discomfort of railroad
To same effect see 10 C. J. 1177; Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. E. 933, 9 L. R. A. (N. S.) 407; Pullman Palace Car v. Harch, 30 Tex. Civ. App. 303, 70 S. W. 771; Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. E. 841.
As to defendant’s evidence: The Pullman conductor testified that he was on watch from the time he left Chattanooga at about 10:40 p. m. until 3 a. m., and that when the call came from lower No. 10, the berth occupied by plaintiff, he answered as soon as he could, and wnen plaintiff told him that someone had placed their hands in her berth he promised to keep watch and went into the drawing room, which is about 12 feet from lower No. 10; assorted his tickets, and remained there until 3 a. m. when he called the porter. The end lights were burning; he told the porter what plaintiff had said and for him to keep watch. He heard nothing further. Plaintiff said nothing of losing her ring. Neither the porter nor conductor heard the conversation about the twenty dollars at Tuscaloosa. The porter came on duty at 3 a. m. and sat on a stool at the end of the car shining shoes. He called plaintiff for Georgetown, had to call her two or three times; she told him of losing her ring; he looked for it and she assisted him in the search. When the train conductor came through he told him to look again, which he did; said plaintiff showed no signs of nervousness, that he brushed her clothes, she tipped him and he carried her baggage to the platform at Georgetown. He had no call from lower 10. .
The defendant accounted for all the berths, both lower and upper in the sleeper, many of which, including Nos. 8 and 12, were occupied by members of a football team from Chattanooga to Danville. Two or three of these boys testified; they said they heard no outcry.
Complaint is next made of the admission of incompetent evidence.
There is no general allegation of negligence, plaintiff’s case being predicated upon the three specific as
It would require rather a tedious detail to enter into a further recital of the evidence, nor would any useful purpose be subserved by so doing. Much of it was incompetent and irrelevant; the court repeatedly admonished the jury not to regard certain statements; defendant’s objections were in the main sustained, but with the several admonitions and favorable rulings there was so much of this, character of evidence before the jnry, as renders it impossible to say what effect this testimony may have had upon, or to what extent it may have influenced their verdict. The trouble grew out of the latitude of the inquiry; a too liberal interpretation of the questions at issue; the scope of the evidence was too broad. The sole issue triable was the invasion of the plaintiff’s berth, the three attacks or assaults, and if upon the return of the case the evidence is limited-to this issue, much of the complaint as to the admission of evidence will be eliminated.
Nor was such evidence competent under the rule that such facts, though not in issue, were so connected with the issuable-facts as to form a part of the same transaction or subject matter as to make them relevant to the facts.
Appellant’s dream theory does not impress us. While not specifically versed in the phenomenon of dreams, our limited knowledge thereof is such as to dispel any idea that plaintiff could have had three separate visions within the space of a few hours that some one was attacking or attempting to assault he'r. Especially when she says she never closed her eyes after the first experience.
During the closing speech by plaintiff’s counsel, defendant’s counsel interposed many objections, and repeatedly moved to discharge the jury because of improper argument; these were overruled.
It is good to be zealously affected always in a good thing, says the Apostle Paul (Gal. 4, 18). Passionate ardor for a client’s, cause; eagerness for victory, the enthusiasm and interest that comes to one imbued with the justness and righteousness of his side of a lawsuit will oftentimes lead an attorney in argument to overstep' the bounds of propriety, forget the law and the evidence, get outside the( record and bring to the attention of the jury matters having no bearing, upon the questions involved. Sometimes improper argument is unintentionally. made; then again resort thereto is done intentionally. Great latitude is and should be allowed counsel in making their arguments, but counsel should be careful in the presentation of their ease, to confine themselves to facts brought out in the evidence, and to reasonable deductions to be drawn therefrom. They cannot safely or properly go beyond this limit. C. St. L. N. O. & R. Co. v. Rowell, 151 Ky. 313, 151 S. W. 950; L. & N. R. R. Co. v. Crowe, 32 R. 1145, 107 S. W. 808; L. & N. R. R. Co. v. Payne, 133 Ky. 274, 127 S. W. 993; Kentucky Wagon Mfg. Co. v. Duganics, 113 S. W. 129; I. C. R. R. Co. v. Proctor, 122 Ky. 92, 89 S. W. 712; C. N. O. & T. P. Ry. Co. v. Martin, 154 Ky. 348, 157 S. W. 710; Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431, 157 S. W. 1121; L. & N. R. R. Co. v. Baker’s Admr., 183 Ky. 795, 210 S. W. 674.
In- the present case plaintiff’s counsel on more than one occasion got beyond the lines> of proper argument and did not confine himself to the real issues. This was doubtless due, in part, at least, to the wide range taken by the evidence. But the evidence will be restricted on the next trial as herein indicated and counsel should con-, ■fine himself thereto, or to any deductions’ reasonably flowing therefrom.
For the reasons given the judgment is reversed for further proceedings consistent herewith.