Lanier v. Pullman Co.

• Citation: 105 S.E. 21,180 N.C. 406
• Decision Date: 24 November 1920
• Docket Number: 395.
• Parties: LANIER v. PULLMAN CO. ET AL.
• Court: United States State Supreme Court of North Carolina

105 S.E. 21

180 N.C. 406

LANIER v. PULLMAN CO. ET AL.

No. 395.

Supreme Court of North Carolina

November 24, 1920

Appeal from Superior Court, Guilford County; McElroy, Judge.

Action by Mattie Lanier against the Pullman Company and the Southern Railway Company. From judgment against defendant Pullman Company, it appeals. No error.

Where there was evidence to sustain at least one of plaintiff's two causes of action, defendant's motion for nonsuit was properly disallowed; where the motion is general, embracing all causes of action, if any one is good, it should not be granted.

The plaintiff alleged in her complaint that she had gone from her home in Greensboro, N.C. to Rochester, Minn., to place herself under the care and medical treatment of the Mayo Brothers, celebrated physicians and surgeons of that place and that after receiving treatment and leaving the hospital she started on her return to her home by way of Cincinnati Ohio, where she applied to the Pullman Company's agent at its ticket office there, for the reservation of a lower berth to Greensboro, N. C., and that the said agent, instead of selling a ticket to her, and in willful disregard of his duty--

"wantonly rudely, and insultingly, without any just cause or excuse for his conduct, refused to sell the same to the plaintiff, who was then and there ready and willing to pay for the same although he had the same then on hand for sale, and although plaintiff explained and stated to him that she was ill and nervous, and that her condition of mind and body was such that such accommodations were necessary for her comfort and the preservation of her health; that by reason of the said wrongful conduct on the part of the defendants by their said agent, plaintiff was forced and compelled to board the train of the defendants leaving Cincinnati at 9 or 10 o'clock at night without any sleeping car accommodation or reservation and in an ordinary day coach, which was full of noisy, intoxicated, rude, and boisterous people, and to ride in the same till between 11 and 12 o'clock that night; that plaintiff was sick, ill, and nervous, and that she was injured and suffered physical pain and mental anguish, she was humiliated and her health was injured and damaged, all as the direct result of said wrongful, rude, insulting, and wanton conduct of defendant's agent, all to her damage in the sum of $2,500."

The testimony was heard, and under the charge of the court the jury returned a verdict in favor of the plaintiff, awarding her damages in the sum of $1,500, and further finding that she was not injured by any wrong of the Southern Railway Company. Judgment was entered upon the verdict in favor of the railway company, and against the defendant, the Pullman Company for the amount of the verdict, whereupon the latter appealed to this court.

Defendant the Pullman Company submitted the following motion, and assigned the following errors:

"The Pullman Company, through its attorneys, moved the Court to set aside the verdict rendered in the above entitled matter at this term of the court and in arrest of judgment, for that:

(1) Said judgment was rendered contrary to the evidence.

(2) Because of improper parties, in that the Director General of Railroads was not made a party to the action, who, at the time of the trial was the real party in interest.

(3) That said judgment was rendered in violation of the Constitution of the United States in that it would deprive the defendant Pullman Company of its property without due process of law and deny the defendant the equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States."

The Pullman Company assigns the following errors:

"(1) The refusal of his honor to dismiss the action, and for judgment, as in the case of nonsuit, after the plaintiff had produced her evidence and rested her case.

(2) For that his honor erred in overruling defendant's motion for judgment of nonsuit after all the evidence on both sides was in.

(3) Because the court charged the jury as set forth in defendant's third assignment.

(4) Because the court charged the jury as set forth in defendant's fourth assignment.

(5) Because the court refused to charge the jury as prayed by defendant as follows: (Prayer for special instructions by defendant Pullman Company), but not set out in the assignment or otherwise appearing therein.

(6) The refusal of his honor to grant the motion of defendant to set aside the verdict.

(7) The refusal of his honor to grant the motion of defendant in arrest of judgment.

(8) That his honor rendered judgment in favor of the plaintiff as set out in the record."

Justice & Broadhurst, of Greensboro, and E. C. Gregory, of Salisbury, for appellant.

W. P. Bynum and R. C. Strudwick, both of Greensboro, for appellee.

WALKER, J. (after stating the facts as above).

We will consider this appeal by taking up the exceptions and assignments of error seriatim and according to the order in which they are presented in the record.

First. The motion to set aside the verdict, because against the weight of the evidence or contrary thereto, should have been addressed to the court below. We do not review its decision upon such a motion as it is discretionary, unless there is gross abuse of the discretion, which does not appear in this instance. The cases on this subject are too numerous to be cited, and we refer only to the last one. Harris v. Turner, 179 N.C. 322, 102 S.E. 502.

Second. An objection that there are improper parties, as here alleged, cannot be made by motion in arrest of judgment. Where there is a defect of parties, the objection can be taken by demurrer, if the defect appears on the face of the pleadings, and, when it does not so appear, the proper pleading is an answer. Revisal of 1905, § 474, subdiv.

4; Consol. Statutes, § 511, and subdivisions. An objection to a misjoinder of parties may be taken in the same way. The objection here is that there is a misjoinder, and not a defect of parties. Neither can be availed of by a motion in arrest of judgment. Revisal, § 474, and notes. "A defect of parties will be deemed to have been waived, unless taken advantage of by demurrer when such defect appears on the face of complaint, or petition, or by answer when it does not so appear. Silver Valley Min. Co. v. Baltimore Smelting Co., 99 N.C. 445, 6 S.E. 735; s. c., 101 N.C. 679, 8 S.E. 361; Lewis v. McNatt, 65 N.C. 63; Lunn v. Shermer, 93 N.C. 164; Howe v. Harper, 127 N.C. 356, 37 S.E. 505; Bridgers v. Staton, 150 N.C. 216, 63 S.E. 892; Smoak v. Sockwell, 152 N.C. 503, 67 S.E. 994. A misjoinder of parties is waived by failing to demur. Cooper v. South. Express Co., 165 N.C. 538, 81 S.E. 743. "If the defendant deemed the trustee a necessary party," it was said in Watkins v. Kaolin Mfg. Co., 131 N.C. 536, 538, 42 S.E. 983, 984, 60 L. R. A. 617, "he should have demurred, and his failure to do so was a waiver." Revisal of 1905, § 478. Watkins' Case is like this one. There was no misjoinder here.

There was no demurrer filed in this case, nor was the objection taken by the answer. There is some reference in the answer to the order of the President, purporting to have been issued by virtue of the power vested in him by the act of Congress, but there is no specific objection, by demurrer or answer, that the Director General was not made a party to the suit, or that he was a necessary party. The validity of the President's order, to which we have referred, is discussed very fully in the case of Hill v. S. A. L. Railway Co., 105 S.E. 19, which was decided at this term, and to which we refer without adding anything to what is there so well stated.

Third. The constitutional question raised for the first time after the rendition of the judgment in the cause comes too late, nor is it attempted to be presented in the proper way. There was no issue requested and no instruction concerning it. But if it had been properly raised, and in due time, the defendant could be sued by the very terms of this act of Congress (section 10) approved March 21, 1918 (U. S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3115 3/4j), entitled "An act to provide for the operation of transportation systems while under federal control," etc. Section 10 provides:

"That carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control or of any act of Congress or official order or proclamation relating thereto shall upon motion of either party be retransferred to the court in which it was originally

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