Berger v. Southern Pac. Co.

• Citation: 60 A.L.R.2d 1104,144 Cal.App.2d 1,300 P.2d 170
• Court: California Court of Appeals Court of Appeals
• Decision Date: 16 August 1956
• Parties: , 60 A.L.R.2d 1104 Edith BERGER, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant, The Pullman Company, a corporation, and J. V. Zeno, Jr., Defendants and Appellants. Civ. 16712.

Page 170

300 P.2d 170

144 Cal.App.2d 1, 60 A.L.R.2d 1104

Edith BERGER, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant, The Pullman Company, a corporation, and J. V. Zeno, Jr., Defendants and Appellants.

Civ. 16712.

District Court of Appeal, First District, Division 1, California.

Aug. 16, 1956.

Rehearing Denied Sept. 14, 1956.

Russel Shearer, Shearer, Thomas & Lanctot, San Francisco, Roderick L. Dewar, San Francisco, of counsel, for appellants.

Leslie C. Gillen, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for respondent.

AGEE, Justice pro tem.

Defendants, The Pullman Company and J. V. Zeno, Jr., appeal from a judgment on a jury verdict in favor of plaintiff, Edith Berger, in an action for damages alleged to have been sustained by plaintiff while she was a passenger on a Pullman sleeping car. Defendant Southern Pacific Company was granted a nonsuit, and it is not involved in this appeal.

At Glendale, on October 7, 1951, about 8:00 p. m., Mrs. Berger boarded a Southern Pacific train with the intention of journeying to San Francisco. She was 48 years of age, frail, sick, and suffering from chronic tuberculosis. In addition, she was feverish and dehydrated as a result of diarrhea and was suffering from codeine withdrawal. She was assisted aboard the train by friends and a redcap porter to 'Bedroom E' in a sleeping car known as 'Clover Dell.' This car was managed by Pullman and serviced by its porter, Zono. The train was made up of fourteen cars but the only sleeping car was the one mentioned and Zeno was the only Pullman employee aboard. Arrangements were made to wire ahead for a doctor if Mrs. Berger's condition should become worse during the trip. After the train was under way, Zeno entered the bedroom and made up the bed. While he was doing this, Mrs. Berger asked Zeno to place more blankets on her during the night if she became chilled, inasmuch as she was alternating betweeen chills and fever. She also requested Zeno to bring her tea and toast. After making up the bed, Zeno departed. Mrs. Berger then took some nembutal, changed to night clothes, and got into bed. She soon went to sleep but awakened when Zono returned with the tea. Zeno propped her up and held the teacup to her mouth in order that she might drink. From here on there are conflicts between the testimony of the parties and, accordingly, only Mrs. Berger's version will be recounted.

While Mrs. Berger drank the tea, she and Zeno conversed about her tuberculosis and her son's drug addiction. Zeno suggested that she take two more nembutal tablets. She did so. Zeno left but returned shortly and removed the tray. Mrs. Berger then fell asleep. The next thing she knew was the Zeno was over her person, engaging in an act of sexual intercourse with her. She was too weak to resist effectually and made no outcry because of fear. She testified: 'I don't believe he completed the act.' No one at the time, other than the parties, was aware of the occurrence. Zeno wiped off his private parts and those of Mrs. Berger with a towel and left the bedroom. Mrs. Berger was exhausted and went back to sleep. She was awakened at Palo Alto by Zeno knocking on the door and telling her that the train was nearing San Francisco. Zeno carried Mrs. Berger in his arms from the train upon arrival at San Francisco and placed her in a wheel chair. She was met by her father-in-law. Two days later she told her physician of the alleged assault. This was the first person she had told. He could find no physical evidence of such assault.

Mrs. Berger's claim of being sexually assaulted, although completely uncorroborated and emphatically denied by Zeno, is not so incredible or inherently improbable as to justify an appellate court in substituting its opinion for that of the jury and the trial judge, who had an opportunity to express himself in ruling upon the motion for a new trial. However, the factual issue is so close, to say the least, that the claimed errors of law must be scrutinized carefully.

The action proceeded to trial on two counts. The first count is based upon negligence, the second upon assault. Both counts allege that Zeno was the actor and was, at the time of the assault complained of, acting within the course and scope of his employment by Pullman. The first count alleged that Pullman negligently and carelessly omitted and neglected to provide safe passage for Mrs. Berger and, in particular, that Pullman (1) negligently and carelessly permitted and allowed Zeno to arrange the lock on the door of said bedroom so that said door could be opened from the outside or corridor of said car and (2) negligently and carelessly permitted and allowed Zeno to enter said bedroom and nurse plaintiff at various times through said night without sufficient or any supervision, and (3) negligently and carelessly permitted and allowed Zeno to and he did assault plaintiff.

There is no evidence of negligence whatsoever. Plaintiff herself testified that the friends who brought her to the train requested Zeno to look after her as she was sick; that she left the door unlocked so Zeno could serve her and look in from time to time to see if she needed more blankets or a doctor. There is no evidence that Zeno was carelessly selected as an employee or that he had any propensity toward molesting passengers. Nor is there any evidence that would justify a holding that Pullman was negligent in not having someone follow and observe Zeno each time he entered plaintiff's bedroom and, in particular, at the time he entered and committed the assault.

There were two forms of verdict given to the jury for its convenience, one being in favor of Pullman and Zeno and the other, which was adopted by the jury, reading as follows: 'We the jury in the above-entitled cause find a verdict in favor of the plaintiff, Edith Berger, and against the defendants Pullman Company, a corporation, and J. V. Zeno, Jr., and we assess damages in the sum of (blank) Dollars.' There is thus no way to ascertain whether the jury based its verdict on the first count or the second count or on both. However, the rule is that if the verdict in favor of a plaintiff is general in form and there is one count which is supported by the evidence and which is free from error, such verdict will be upheld. 2 Cal.Jur. p. 1029; 4 Cal.Jur.2d 509; 24 Cal.Jur. p. 885.

Therefore, the erroneous submission to the jury of the first count (negligence) and the giving of instructions thereon is not prejudicial if the second count can be sustained. As was said in Leoni v. Delany, 83 Cal.App.2d 303, 309, 188 P.2d 765, 768, 189 P.2d 517: 'If one count is not affected by error and there is substantial evidence to support a verdict with respect to it, it is immaterial that there may have been errors committed in connection with another count or that there is not sufficient evidence to sustain a verdict as to such other count. [Citing cases.] One count sustained by sufficient evidence and free from error is all that is required to support a verdict. The specifications of error which the appellant has made with reference to giving and the refusal to give certain instructions, all pertain to the first cause of action and are immaterial to the second count.' In the cited case the judgment in favor of the plaintiff, based upon a general verdict, was affirmed, even though a recovery under the first count could not be sustained.

This leads to the next question, the duty of a sleeping car company towards its passengers. In Hicks v. Scott, 48 Cal.App.2d 481, 120 P.2d 107, one passenger assaulted another passenger and the latter sued The Pullman Company for failing to protect him. The court said, 48 Cal.App.2d at page 485, 120 P.2d at page 109: 'A sleeping-car company operating sleeping cars in connection with railway trains is not regarded as a common carrier, except where a statute so declares. 13 C.J.S., Carriers, § 904, pp. 1739, 1740. It is, however, required, even if not a common carrier, to exercise a high degree of care for the personal safety and comfort of its passengers. 13 C.J.S., Carriers, § 909, p. 1744. There is conflict among the authorities on the question whether such a company, though not technically a common carrier, should observe the same degree of care towards its passengers as a common carrier. We think the better reason is with the decisions which do require that degree of care. [Citing cases.]' This case is authority for the proposition that California holds that a sleeping car company owes the same obligation to its passengers as does a common carrier. This is in accord with the general rule.

The obligation of a common carrier for an assault by one of its employees upon a passenger, as distinguished from an assault by a passenger upon a fellow passenger, is stated in volume 10 of American Jurisprudence, at pages 263 to 265: 'A contract of transportation implies protection to the passenger against acts of personal violence by the agents or employees of the carrier. Accordingly, a carrier is liable for acts of assault and battery upon the part of its employees resulting in injury to those it has agreed to transport upon its facilities. This liability extends not only to cases where the assault was in the line of the employee's duty, but also to those instances where the act was merely that of an individual and entirely disconnected with the performance of the agent's duties, as where the conductor of a train kisses a female passenger against her will. * * * The liability of a common carrier for an assault by one if its employees on a passenger is not dependent on the question as to whether the employee was acting within the scope of his authority or in the line of his duty, but is based upon its broad duty as a common carrier to protect its passengers from assault. Nevertheless, it is clear that the basic liability of a carrier for an assault by its employee is materially...