Payne v. Stevens

• Decision Date: 02 May 1921
• Docket Number: 21763
• Court: Mississippi Supreme Court
• Parties: PAYNE, DIRECTOR GENERAL OF RAILROADS, v. STEVENS ET AL

88 So. 165

125 Miss. 582

PAYNE, DIRECTOR GENERAL OF RAILROADS, v. STEVENS ET AL

No. 21763

Supreme Court of Mississippi

May 2, 1921

1. APPEAL AND ERROR. Dismissal and nonsuit. Trial. Misjoinder of parties plaintiff cannot be urged on appeal unless notice given and misjoinder pleaded below, peremptory instruction against either party proper where evidence justifies it plaintiff may take nonsuit at any time before verdict.

Misjoinder of party plaintiffs in a suit cannot be taken advantage of on appeal unless notice was given and the misjoinder pleaded in the lower court. It is proper to grant a peremptory instruction against either party where the evidence justifies it. It is a legal privilege of a plaintiff to take a nonsuit in a case at any time before verdict.

2 CARRIERS. White passenger compelled to ride with negroes in coach designated for white persons may recover.

Under our separate coach law (section 4059, Code of 1906; section 6687, Hemingway's Code), a white passenger who, after notice and objection to the conductor, is compelled to ride in a compartment with negroes, in a coach designated for white persons, may recover damages from the railroad for violation of the statute; and this is true even though there were other coaches on the train for white persons, and the sign designating the coach had been changed by some outside agency.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by A. E. Stevens and four others against John Barton Payne, Director General of Railroads of the United States. From the judgment in favor of three of the plaintiffs, defendant appeals. Affirmed.

Judgment affirmed.

Smiths, Young & Leigh, for appellant.

The legal questions raised by this record are: 1. Can white passengers, upon a railroad, recover damages for the failure of the carrier to provide separate accommodation for the races, where the carrier has provided such accommodation and properly designated the same, but such designations have, through the interposition of third persons, been reversed so as to make it appear that the accommodations furnished for the negro race were in fact for the white race? 2. Can several persons, each traveling upon a separate rate ticket, and independent of the others, recover a single sum in one suit in satisfaction of the several damages they all claimed to have sustained?

The duty to furnish separate accommodations is statutory and when the statute has been complied with by furnishing separate cars, as was done in this case, there can be no recovery for the failure to perform that portion of the statute.

The undisputed evidence in this case shows that there were several cars upon the train in which there were no colored passengers, and that this was known to the plaintiffs. This being true there was no necessity for the designation by the conductor of the cars assigned to the white passengers, and if the plaintiffs, knowing that fact, voluntarily entered the cars occupied by negroes they cannot recover "volenti non fit injuria." Bridges, Administrator, v. Tennessee Coal, Iron & Railroad Company, 109 Ala. 287.

As several plaintiffs joined in this action it was necessary that they should have all been entitled to recover before any of them could have recovered. Prestwood v. McGowin, 128 Ala. 267; Southern Railway Company v. Meaher, 238 F. 538. Where several sue and only one has any interest in the suit the court can, upon motion, eliminate those who have no interest, or can control the matter by charges. Bacot v. Phoenix Insurance Co., 96 Miss. 223, 50 So. 729.

But where each has an interest in the transaction upon which the suit is based, but that interest is separate interest and distinct from the interest of each of the others the court cannot select the plaintiff that it will allow to recover, and deny a recovery to the others, for one would have as much right to recover as the other, and the court cannot elect between them. Tribbette et al. v. Illinois Central Railroad Company, 12 So. 32; Cumberland Telephone & Telegraph Co. v. Williamson, 57 So. 559; Gulf & Ship Island R. Co. v. Walker et al., 60 So. 1014; Newell v. Ill. Central Railroad Co., 63 So. 351.

The following cases to the contrary have been overruled by the case supra: Tisdale v. Insurance Co. of North America, 36 So. 568; Johnson v. Bacon, 45 So. 858. The court erred in not charging the jury as requested by the defendant, to find a verdict for the defendant and also erred in entering a joint judgment in favor of three plaintiffs upon the verdict of the jury.

Mize & Mize and F. W. Elmer, Jr., for appellees.

Counsel in their brief present the following questions: 1. Can several persons claiming rights under separate and distinct contracts join as plaintiffs in one suit to recover a joint damage for the failure of a carrier to separate races in a particular car?

Our answer to this, is that they can where the principles controlling each case are the same, though they could not be compelled to do it. At any rate, counsel were certainly satisfied on this point in the court below as they made no objection on the ground of misjoinder. If this joinder of plaintiffs was wrong, appellant should have taken advantage of it in the court below.

2. Whether the fact that the sign attached to the door of the car which had been assigned to colored people was by some one or other than an employee of the company, changed so as to indicate that the car had been assigned to white passengers, made it the duty of the conductor to eject the colored passengers therefrom, and turn the car over to white people, and rendered defendant liable for a failure on the part of the conductor to do this?

In reply to this, we will say that there is no evidence that this sign was changed by any one, and, further if it had been so changed, it was the duty of the conductor or other railroad officials to have informed the white people who were in the coach which was ostensibly for white people judging from this sign, that in reality they were in a negro coach and not in a white coach, so they might have acted accordingly. This the conductor did not do, and the record will disclose that the conductor assumed that they were in a white passenger coach, because the record shows that he told these passengers to tell the negroes that were in said coach to get out of the coach, which the negroes refused to do.

As to appellant's contention, made at page four of their brief that there were several cars in said train in which there were no colored passengers, and that this was known to plaintiffs and that there was therefore no necessity for the conductor to designate the cars assigned to the white passengers, and that if the plaintiffs, knowing that fact, voluntarily entered the car occupied by negroes, t...