Lindsay v. Oregon Short Line R. Co.

• Decision Date: 14 June 1907
• Parties: GEORGE E. LINDSAY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

90 P. 984

13 Idaho 477

GEORGE E. LINDSAY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

June 14, 1907

EXPULSION FROM TRAIN-DAMAGES-ALLEGATIONS OF COMPLAINT-EVIDENCE-DUTY OF CARRIER-ANXIETY AND MENTAL SUFFERING-JOINDER OF ACTIONS-INSTRUCTIONS.

1. Under the provisions of subdivision 2, section 4168, Revised Statutes, the complaint must contain a statement of the facts constituting the cause of action in ordinary, concise language, and in an action for damages it is sufficient under our statute to allege in general terms that the injury complained of was occasioned by negligence of the servant or employee of the carrier in charge of the train.

2. Evidence held sufficient to show that the brakeman did expel the respondent from the train.

3. It is the duty of the common carrier to afford protection for its passengers, and if it has in its employ a brakeman who ejects a passenger from the train who is entitled to ride the company is liable.

4. Where a passenger is wrongfully ejected from a passenger train, he is entitled to recover a reasonable compensation for the indignity, humiliation and mental suffering received and resulting from such expulsion, whenever such mental suffering or nervous shock is the natural and proximate result of the wrong done, if such wrong gives the party a cause of action.

5. In this case a husband with his sick wife entered the train; he was ejected therefrom and his wife was carried on the train. His anxiety and mental suffering was the proximate result of the unwarranted act of the servant, and was the direct and sole cause of such suffering.

6. Under the provisions of section 4093, Revised Statutes, the husband must be joined with the wife when she has a cause of action for personal injuries, and if the husband has a separate and distinct cause of action for personal injuries to himself, he is not bound to join his cause of action with that of his wife.

7. The refusal to give certain instructions reviewed and held not error.

8. The giving of certain instructions reviewed and held not error.

(Syllabus by the court.)

APPEAL from the District Court of Fifth Judicial District for Bear Lake County. Hon. Alfred Budge, Judge.

Action to recover damages by reason of a forcible ejection from train. Judgment for the plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

P. L Williams and D. Worth Clark, for Appellant.

It is not alleged that said brakeman was, at the time, on duty, or that he was acting within the scope of his employment.

A complaint that does not allege that the servant is acting within the scope of his employment at the time of his negligent act does not state facts sufficient to constitute a cause of action. (Davis v. Houghtelin, 33 Neb. 582 50 N.W. 765, 14 L. R. A. 737; Cooke v. Illinois Cent. R. R., 30 Iowa 203; Carter v. Louisville etc. Ry. Co., 98 Ind. 552, 49 Am. Rep. 780; Lafitte v. New Orleans City R. R. Co., 43 La. Ann. 34, 8 So. 701, 12 L. R. A. 337.)

There was not sufficient evidence to justify the jury in finding that the plaintiff was compelled to leave or was ejected from the defendant's passenger train, nor does the evidence show that he was ejected by an employee of the defendant company, or by anyone having authority to eject him. We find the general rule as to what constitutes expulsion laid down in 6 Cyc. 559. (Bohannon's Admr. v. Southern Ry. Co., 112 Ky. 106, 65 S.W. 169.)

It is improper to admit evidence as to mental suffering on account of the circumstances or conditions of others. (Maynard v. Oregon Short Line Ry. Co., 46 Or. 15, 78 P. 983, 68 L. R. A. 477; Atchison etc. Ry. Co. v. Chance, 57 Kan. 40, 45 P. 60; Turner v. Great Northern R. Co., 15 Wash. 213, 55 Am. St. Rep. 883, 46 P. 243; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545.)

Damages cannot be recovered for mere mental distress not accompanied by physical injury. (Linn v. Duquesne Burrough, 204 Pa. 551, 93 Am. St. Rep. 800, 54 A. 341; Wilcox v. Richmond D. R. Co., 52 F. 264, 3 C. C. A. 73, 17 L. R. A. 804; Chicago etc. R. Co. v. Caulfield, 63 F. 396, 11 C. C. A. 552; Kansas etc. R. Co. v. Dalton, 65 Kan. 661, 70 P. 645; Mitchell v. Rochester R. R. Co., 151 N.Y. 107, 56 Am. St. Rep. 604, 45 N.E. 354, 34 L. R. A. 781; Haile's Curator v. T. & P. R. R., 60 F. 557, 9 C. C. A. 134, 23 L. R. A. 774; Ewing v. Pittsburg etc. R. R., 147 Pa. 40, 30 Am. St. Rep. 709, 23 A. 340, 14 L. R. A. 666; Spade v. Linn & B. R. Co., 166 Mass. 285, 60 Am. St. Rep. 393, 47 N.E. 88, 38 L. R. A. 512; 8 Am. & Eng. Ency. of Law, 664; Ward v. Railroad Co., 65 N.J.L. 383, 47 A. 561; Sanderson v. Railroad Co., 88 Minn. 162, 97 Am. St. Rep. 509, 92 N.W. 542, 60 L. R. A. 403; Bucknam v. Railroad Co., 76 Minn. 373, 79 N.W. 98; Keyes v. Railroad Co., 36 Minn. 290, 30 N.W. 888; Turner v. Great Northern R. R., 15 Wash. 213, 55 Am. St. Rep. 883, 46 P. 243; Nelson v. Crawford, 122 Mich. 466, 80 Am. St. Rep. 577, 81 N.W. 335; Gatzow v. Buening, 106 Wis. 1, 80 Am. St. Rep. 17, 81 N.W. 1003, 49 L. R. A. 475.)

Plaintiff and his wife have already prosecuted an action for the recovery of damages on account of the same wrongful acts alleged in the complaint in this action. But one wrongful act being involved, and the damages being community property, the plaintiff could not split his cause of action and bring one action for damages on account of injury to Mrs. Lindsay and her consequent loss of time, and then bring another action for his wrongful expulsion from the train, and ask for damages on account of his anxiety concerning the condition of Mrs. Lindsay, and further, for damages for his loss of time and his wrongful expulsion. (Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545.)

It was the court's duty to instruct the jury that the wrongful acts must have been committed in the manner described in the complaint--that is, that said acts must not only be wrongful, but willfully wrongful. (Rideout v. Winnebago Traction Co., 123 Wis. 297, 101 N.W. 672, 69 L. R. A. 601; Louisville etc. R. R. Co. v. Johnson, 79 Ala. 436; Birmingham Mineral R. R. Co. v. Jacobs, 92 Ala. 187, 12 L. R. A. 830; Highland Ave. & Belt R. R. Co. v. Wim, 93 Ala. 306, 9 So. 509.)

A. B. Gough and J. C. Rich, for Respondent.

The complaint states "the facts constituting the cause of action in ordinary and concise language" as required by the code. It is alleged that certain wrongful acts were committed by the brakeman on this train, and that he was the agent and employee of the defendant company. (6 Cyc. 547, 627; 15 Ency. of Pl. & Pr. 15, 1132, 1133.)

A brakeman has authority, if not directly, at least by implication, to expel a passenger from a train. (Patterson on Railway Accidents, sec. 11; 6 Cyc. 561.)

Mental suffering or nervous shock may be recovered for whenever it is the natural and proximate result of the wrong done, if such wrong gives the party a cause of action. (Sutherland on Damages, 4th ed., sec. 943; Moore on Carriers, pp. 887, 888; 5 Am. & Eng. Ency. of Law, 707; 8 Am. & Eng. Ency. of Law, 2d ed., 669.)

The plaintiff had a right of action for being expelled from the train; hence he can recover for his anxiety on account of thus being separated from his wife. (Vogel v. McAuliffe, 18 R. I. 791, 31 A. 1; Alabama etc. R. R. Co. v. Sellers, 93 Ala. 9, 30 Am. St. Rep. 17, 9 So. 375; Procter v. Railway Co., 130 Cal. 20, 62 P. 306.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover damages on account of the alleged wrongful expulsion of the respondent from one of the appellant's passenger trains at Dewyville, Utah, on or about the nineteenth day of August, 1905. The respondent alleges, among other things, that in the morning of that day he with his wife, who was ill, went to the station at Dewyville for the purpose of taking passage upon appellant's passenger train for his home at Montpelier, Idaho; that he had a ticket which entitled him to a passage on that train; that he boarded the train, and as he approached the door of one of the coaches thereof the brakeman thereon, an agent and employee of the appellant company, did "maliciously, wantonly, willfully, negligently and wrongfully" order respondent off of said train, and placed himself between respondent and the door of said coach and refused to permit him to enter said coach, or any coach; that he took hold of respondent's shoulder and turned him from said door, and commanded, and thus compelled him, to leave said train; that respondent's wife was a passenger on said train and was in a feeble, weak and helpless condition, and required his care and attention, of which fact he informed said brakeman. General damages in the sum of $ 975 and special damages in the sum of $ 25 were prayed.

Demurrer to the complaint was overruled and an answer was filed denying generally the allegations of the complaint. The cause was tried by the court with a jury and a verdict was rendered in favor of the respondent for the sum of $ 300, and a judgment entered thereon. An order denying a new trial was made and this appeal is from that order.

The first error assigned is that the court erred in overruling the demurrer to the complaint.

It is contended by counsel for appellant that it is necessary in such an action as this to allege that the servant was acting within the scope of his employment. Subdivision 2, section 4168, Revised Statutes, provides that the complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language. It is alleged in the complaint that certain wrongful acts were committed by the brakeman, the agent and employee of the defendant company, on its train. It is sufficient under our practice act to...