Knoxville Traction Co. v. Lane

• Decision Date: 28 October 1899
• Citation: 53 S.W. 557,103 Tenn. 376
• Parties: KNOXVILLE TRACTION CO. v. LANE et ux.
• Court: Tennessee Supreme Court

53 S.W. 557

103 Tenn. 376

KNOXVILLE TRACTION CO. v. LANE et ux.

Supreme Court of Tennessee.

October 28, 1899

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by J. E. Lane and wife against the Knoxville Traction Company for damages. Judgment for plaintiffs, and defendant appeals. Affirmed.

Cornack & Cornack, for appellant.

Webb & McClung, for appellees.

SHIELDS Special Judge.

This action was brought by J. E. Lane and his wife, Maggie Lane against the Knoxville Traction Company, a common carrier of passengers, to recover damages for injuries to the feelings and sensibilities of Maggie Lane while she was a passenger on one of the street cars of the defendant company, growing out of an alleged breach of its contract of carriage, caused by insulting and indecent language used to and about her by one of the company's employés in charge of said car. The declaration contains three counts. The second count of the declaration alleges that the Knoxville Traction Company is a common carrier of passengers, and is engaged in operating an electric street-car system over the streets and thoroughfares of Knoxville; that on July 29, 1898, the plaintiff Maggie Lane became a passenger on board one of the cars of the defendant company, at one of its suburban stations, for the purpose of being transported into the city of Knoxville, to a point near the terminus of said line, and paid the fare required by the defendant for her passage; that said car was in the charge and under the management of a motorman and a conductor, as the agents and representatives of the defendant company; that said motorman was accustomed to drinking while on duty, and being abusive and insulting in his manner and language to passengers, all of which was well known to the defendant company, thus making it extremely hazardous unsafe, and unfit for unprotected women and children to travel on the car so run and operated by said drunken motorman; that soon after boarding said car, paying her fare and thus placing herself under the care, custody, and control of the said employés and agents of the defendant, the said motorman, in the presence of the conductor, another agent and employé of the defendant company, and in the presence of a passenger on said car, began, in a loud, boisterous, and drunken tone of voice, to make remarks to and about plaintiff Maggie Lane, directing his words and conversation especially to a man who was one of the passengers on said car, and saying, in substance, "She is a damn good-looking old girl, and I would like to meet her when she gets off," and making signs and gestures at and towards the plaintiff, and attempting to pass words back at her through said passenger; that said motorman kept up his loud and drunken conversation for a great length of time, in spite of the fact that plaintiff was greatly humiliated and distressed, and was weeping and demanding of said motorman to refrain and desist from his said words and actions, but that her tears and demands were of no avail; that the said motorman continued the said gestures, attempted advances, and gross insults until the said car arrived at Gay street, where the plaintiff got off said car, and departed, weeping, humiliated, and sorely grieved; that, by reason of the wrongs and injuries above stated, plaintiff says that, through the negligence, carelessness, recklessness, and unlawful conduct of the defendant, through its agents, and its careless, negligent, and unlawful conduct of keeping and retaining in its employ the said incompetent, insulting, and drunken motorman and employé, the plaintiff Maggie Lane suffered the indignities, insults, and humiliations offered to and towards her as above stated, to her damage, $5,000. The first and third counts place the plaintiffs' right of recovery upon the ground that the defendant willfully, maliciously, and knowingly employed and retained in its employment a drunken and incompetent motorman, and aver that the breach of the contract, and resulting injury to the plaintiff, were occasioned by this alleged negligence on the part of the defendant company. The defendant company demurred to the declaration upon the two following grounds, to wit: (1) That the conduct imputed to the motorman in the first, second, and third counts was not sufficient in law to sustain the action; (2) that, if the conduct of the motorman was such as to render him liable, still the defendant would not be liable, because it is not averred that the defendant had authorized or ratified the conduct of said motorman. The demurrer was overruled by the circuit judge, and the defendant then filed a plea of not guilty, and issue was taken on this plea, and the case was tried before a jury.

The undisputed facts, as disclosed by the record, are as follows On July 29, 1898, the plaintiff Maggie Lane, who was a woman of good character, boarded one of the defendant's cars at or near Lake Ottosee, in the suburbs of Knoxville, for the purpose of being transported into the city, and paid the fare required by the defendant. Just before the car reached the city, the plaintiff noticed that the motorman was drinking. She was sitting near the center of the car. The motorman turned and looked towards her, and said, "You are a good-looking old girl, and I would like to meet you when you get off." She became indignant, and remarked that she would have some one attend to him when she got off. Thereafter he continued to make signs to her until the conductor interfered, and the motorman then said, "She is nothing but a whore." The plaintiff commenced to cry, and the motorman seemed to get angry, and said other abusive things to her. He stated that he knew all about her, and that she "would go out to the lake and throw herself out to the men there." He did not put his hands on her, or attempt to do so. When he arrived at the station the plaintiff went to the office of the defendant company, crying, and complained of the insulting conduct of the motorman towards her. The motorman was taken off the run, and immediately discharged by the company. This motorman had theretofore shown himself to be a good and faithful employé of the company, and had never been drunk before while on duty. The defendant did not know that he drank at all. At the conclusion of the plaintiff's testimony the defendant demurred to the evidence upon the ground that the plaintiff's testimony showed that it did not know of the drunkenness of the motorman, and that it discharged him immediately upon learning of his conduct, and also upon the ground that as the injury alleged in the declaration was the willful, malicious, and unlawful employment of a drunken motorman, the plaintiff's cause of action was not made out by her own proof, as there was no evidence to support this allegation. The circuit judge overruled this...