Birmingham Ry., Light & Power Co. v. Glenn

• Decision Date: 21 November 1912
• Citation: 60 So. 111,179 Ala. 263
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. GLENN.

60 So. 111

179 Ala. 263

BIRMINGHAM RY., LIGHT & POWER CO. v. GLENN.

Supreme Court of Alabama

November 21, 1912

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Mrs. Alice Glenn against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

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 So. 80; B. R., L. & P. Co. v. Barrett, 60 So. 262, and the cases thereir 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 court 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 So. 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 So. 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 So. 237; Southern Ry. Co. v. Nelson, 148 Ala. 88, 41 So. 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, within the operation of the rule stated. But the demurrer does not specify this objection.

3. Plaintiff's witness, Mrs. Chambers, who was on defendant's car at the time plaintiff was 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, was allowed against defendant's objection to state that plaintiff's husband, Mr. Glenn, was 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 gestæ 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 allowed 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 was 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 was 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 allowance was not reversible error. A strikingly analogous case will be found in Kroell v. State, 139 Ala. 1, 12, 36 So. 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...