Brumfield v. Consolidated Coach Corporation

• Decision Date: 19 June 1931
• Citation: 40 S.W.2d 356,240 Ky. 1
• Parties: BRUMFIELD v. CONSOLIDATED COACH CORPORATION.
• Court: Kentucky Court of Appeals

40 S.W.2d 356

240 Ky. 1

BRUMFIELD v. CONSOLIDATED COACH CORPORATION.

Court of Appeals of Kentucky

June 19, 1931

Appeal from Circuit Court, Fayette County.

Action by Lucille Brumfield against the Consolidated Coach Corporation. Judgment for defendant, and plaintiff appeals.

Affirmed.

John W Rowe and A. A. Bablitz, both of Lexington, for appellant.

R. W Keenon and Wallace Muir, both of Lexington, for appellee.

RICHARDSON J.

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 provide equal and suitable accommodation for colored as well as white passengers between the points of its operation."

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 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 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, 27 Fla. 370, 8 So. 837, 26 Am. St. Rep. 75; Hill v. State, 112 Miss. 260, 72 So. 1003; State v. Sanders, 103 S.C. 216, 88 S.E. 10; People v. Decker, 157 N.Y. 186, 51 N.E. 1018; State v. Brown, 188 Mo. 451, 87 S.W. 519; People v. Reyes, 5 Cal. 347; Horst v. Silverman, 20 Wash. 233, 55 P. 52, 72 Am. St. Rep. 97; Aldridge v. U. S., 51 S.Ct. 470, 472, 75 L.Ed. 1054.

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 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 administration 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., 180 Ky. 38, 201 S.W. 500; Sizemore v. Com., 210 Ky. 637, 276 S.W. 524. It is a...