Davis v. Tacoma Ry. & Power Co.

• Decision Date: 20 June 1904
• Citation: Davis v. Tacoma Ry. & Power Co., 35 Wash. 203, 77 P. 209 (Wash. 1904)
• Court: Washington Supreme Court
• Parties: DAVIS et ux. v. TACOMA RY. & POWER CO. et al.

77 P. 209

35 Wash. 203

DAVIS et ux. v. TACOMA RY. & POWER CO. et al.

Supreme Court of Washington

June 20, 1904

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Wesley Davis and wife against the Tacoma Railway & Power Company and others. From a judgment for plaintiffs defendants appeal. Reversed as to railway and power company.

B. S Grosscup, Frank S. Carroll, and A. G. Avery, for appellants.

John C Stallcup, J. W. A. Nichols, and Albert E. Joab, for respondents.

FULLERTON C.J.

This is an action for damages. The respondents, who were plaintiffs below, alleged in their complaint that the appellant railway company was in the year 1902 operating a line of street railway from the city of Tacoma to Spanaway Lake; that for the purpose of increasing its passenger business it had acquired certain lands at the lake named, which it had made into an attractive park, or place of resort, and had placed the appellants Shreeder & Green in charge thereof; that on June 8th of the year named the respondents, attracted by the announcements for that particular day, visited the park, where the wrong occurred of which they complain. This wrong is thus described in the complaint: 'That these plaintiffs, seeing said advertisement, procured tickets and took their seats in one of the cars of said defendant railway company, and were thereby conveyed to said park on said day, arriving there a few minutes after 9 o'clock in the evening. That the cars and the park were covered with people, and music and other attractions were there for the entertainment of the visitors. That a very few minutes after alighting from the car upon said grounds, and while plaintiffs were quietly viewing the attractions then upon the said park grounds of said defendants, one Charles W. Cromwell, an employé of said defendants, in charge of said grounds, approached the plaintiff Lenora Davis, and, after staring her in the face in a rude and insolent manner, seized her by the arm in a rough, brutal and insulting manner, and in a loud tone of voice, in the presence and hearing of a large group of people, said to this plaintiff, Lenora Davis: 'You must leave these grounds. You can take the next car, coming in or going out. You are not allowed on these grounds'--at the same time exhibiting a metallic star or badge, and claiming to be an officer and a deputy, attracting the attention of a large number of people to said plaintiff, meaning and imputing by his words and action that said plaintiff Lenora Davis was a lewd and base woman, unfit to be or remain upon said grounds. That she, the said plaintiff is of the age of twenty-seven years, has always conducted herself as a lady of refinement and respectability, and has never at any other time been charged with anything derogatory to her good name, character, and reputation, always having enjoyed a good and spotless name and the high esteem of all her acquaintances. That she was then and there so dazed, shocked, humiliated, insulted, and wounded in her feelings by said words and actions of said Cromwell that she became faint and sick, and could scarcely remain standing, and has not yet recovered in physical health, nor from the great mental anguish and wounded feelings, resulting from such treatment. That the defendant Green was upon the said grounds at the time, and directed the said Cromwell to order the said plaintiff off the said grounds, and aided and participated in said violent and unjust treatment of said plaintiff.' Damages were demanded in the sum of $5,000. Issue was joined on the complaint; the defendant railway company and the defendants Shreeder & Green appearing separately and by different counsel. On the issues made a trial was had before a jury, resulting in a verdict and judgment against all of the defendants for the sum of $750.

The evidence introduced at the trial did not support the complaint in all of its particulars. It appeared that the managers of the park, desiring to keep the place suitable as a place of resort for respectable people, had employed one Cromwell to warn off of the grounds all persons whose conduct, demeanor, or dress marked them as belonging to or being associated with the criminal or vicious classes; that Cromwell had been informed that such a person had entered the ground and taken a certain direction, whereupon he went in the direction indicated, and, finding no other woman there, mistook Mrs. Davis for the person meant, and addressed her, asking her to leave the ground; that he discovered his mistake almost immediately, and apologized to her and her husband for so accosting her. He also called the attention of the railway company's manager to his mistake, who likewise openly apologized to them therefor. The evidence discloses clearly that there was nothing willful or malicious in the action of the employé. It was a mistake simply, and one that was atoned for by the employé and the manager of the railway company, who was present, in the only manner then possible.

Notice of appeal was first given by Shreeder & Green, and afterwards by the railway company. The respondents move to dismiss the appeal of Shreeder & Green for the reason that they did not serve their notice of appeal on their codefendant, the railway company, nor join in the appeal of the railway...