Power Co. v. Matheny

• Decision Date: 30 November 1909
• Docket Number: 11129
• Citation: 81 Ohio St. 204,90 N.E. 154
• Parties: The United Power Company v. Matheny.
• Court: Ohio Supreme Court

90 N.E. 154

81 Ohio St. 204

The United Power Company v. Matheny.

No. 11129

Supreme Court of Ohio

November 30, 1909

Action to recover damages for ejectment of passenger from street car - Evidence offered by company to show misconduct of passenger - Error for court to instruct jury to disregard such evidence, when - Question of malice or insult in ejectment - As bearing on nature of damages - Counsel fees to be allowed as part of compensatory damages, when.

1. Where, in an action to recover damages for unlawfully and forcibly ejecting the plaintiff from a street car, evidence was offered by the defendant tending to show that passengers had left the car on account of the conduct of the plaintiff and his companions, and in doing so complained to the conductor, or within his hearing, in regard to such conduct such evidence was competent as part of the res gestae and as tending to explain the motive of the conductor, and it was error for the court to instruct the jury to disregard the same, unless they should find that what was said by the passengers to the conductor or in his hearing, was in the hearing of the plaintiff or so that he could have heard it.

2. In such case, it was error for the court to charge the jury that if they found that the ejectment of the plaintiff was not justified, but was without malice or insult, they could award compensasatory damages only, and as part thereof they might allow plaintiff a reasonable sum for the services of counsel in his behalf.

The defendant in error sued the plaintiff in error to recover damages for an alleged unlawful, wrongful and forcible expulsion from a street car belonging to and operated by the plaintiff in error. The plaintiff in error in its answer denied all the allegations contained in the petition, except that it was a corporation and engaged as a common carrier of passengers, and that the plaintiff was ejected from a car belonging to said company; and it alleged as follows: "The defendant says that the plaintiff was so ejected from said car for being disorderly and for using profane language in said car; that plaintiff was requested and warned by the employes of defendant in charge of said car, to desist from said disorderly conduct and to refrain from using said profane language; but plaintiff refused and failed so to desist and refrain, and the defendant's employes were thereupon obliged to and did eject the plaintiff from said car, but without violence and not in the manner set forth in the petition." In reply the plaintiff below denied these allegations contained in the answer. On the trial of the issues, the plaintiff gave evidence tending to sustain the claims made in his petition and the defendant gave evidence tending to support the foregoing allegations contained in its answer. The testimony tended to show that the plaintiff and his two companions were noisy and hilarious, perhaps to the extent of using coarse profane and indecent language, to the annoyance of some of the other passengers; and that the conductor had at least once admonished them; that there were several white women and three colored women in the car, the latter sitting just in front of the plaintiff and his companions; that something occurred between the colored women and the plaintiff and his company, which was not understood by the other passengers that the colored women got up and went to the rear exit of the car and in doing so passed the plaintiff and his companions, and some words passed between them, which were not understood by the witnesses, owing to the noise; and that as the women came out and got off the car, they said to the conductor in the hearing of witnesses but not in the hearing of the plaintiff and his companions, "It is a pity a person can't ride on these cars without being insulted by somebody that is drunk." "If we can't ride without being insulted we will get off," which they did do; that thereafter the conductor went to the men and said, "I have told you twice now. You will have to cut it out or get off," to which one of them replied, "God damn you, get back in the back end where you belong and tend to your own business;" and that thereupon the conductor stopped the car, tendered the men their fare, which they refused, and with the assistance of the motorman ejected the men with no more force than was necessary; and that in the case of the plaintiff no force was used except to take him by the arm and lead him out.

The court charged the jury, in part, as follows: "The court admitted in evidence the statement of a witness as to what was said by some colored women in leaving the car. At that time the court said in your presence that that evidence would not be proper or competent for your consideration unless it was said in the presence and hearing of the plaintiff. The plaintiff and one or two other witnesses deny that they heard any such statement as was made by these colored women. The court instructs you that before you should consider what witnesses say they may have said in leaving the car you should determine whether or not it was said by them loud enough to be heard by the plaintiff in this case, for if it was not said in his hearing, then that evidence would be entirely incompetent in this case; and if you should find from all the evidence that the plaintiff did not, or could not have heard this language or this statement by these colored women who left the car, then I instruct you to entirely disregard such testimony. If, however, you should find that it was spoken in a way that the plaintiff could have heard it, or did hear it, then the court instructs you that you would have a right to consider it along with the other evidence in the case in determining the issue which has been submitted to you. * * * You should also, if you should determine that this ejectment was not justified, and should further determine that the employes who ejected him acted with actual malice and ill-will, and with a deliberate intention of insulting the passenger in ejecting him, I say, if you should so find, then you would be entitled, not only to allow him compensatory damages, but should also allow him an additional amount by way of punitive damages. That is, as a punishment for this defendant for having in its service employes who would thus disregard the rights of others. This is a matter, however, which you are not called upon to determine unless you should, as I say, find that this ejectment was done not only without justification, but in a malicious and insulting manner. Otherwise you should only allow such an amount as would fairly compensate him in the respects to which I have called your attention. And as a matter of compensation you would have a right to allow him a reasonable amount for the services of his counsel in bringing and maintaining this action against the company."

There was a verdict and judgment in favor of the plaintiff in the court of common pleas, and this judgment was affirmed by the circuit court.

Messrs. Brookes & Thompson, for plaintiff in error, cited and commented upon the following authorities:

2 Fetter on Carriers, Section 542; Watson on Damages for Personal Injuries, 726, 738, 883; Railway Co. v. Hall, 13 S.W. 138; Railroad Co. v. McGinnis, 46 Kans., 109; Railway Co. v. Taylor, 104 Pa. St., 306; Railroad Co. v. Scurr, 59 Miss. 456; Chicago v. Martin, 49 Ill. 241; Heil v. Glanding, 42 Pa. St., 493; Railroad Co. v. Arms, 91 U.S. 489; Railroad Co. v. Slusser, 19 Ohio St. 157; Railway Co. v. Dunn, 19 Ohio St. 170; Lyles v. Perrin, 119 Cal. 264, 51 Pac. Rep., 332; Tramway Co. v. Cloud, 40 Pac. Rep., 779; Inman v. Ball, 65 Ia. 543; 2 Sutherland on Damages, Section 392; Schneider v. Hosier, 21 Ohio St. 98; Morely v. Dunbar, 24 Wis. 183; Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 Ohio St. 529; Stevenson v. Morris, 37 Ohio St. 10; Iron Co. v. Harper, 41 Ohio St. 100; Railroad Co. v. Bartram, 11 Ohio St. 469.

Mr. Hollis E. Grosshans and Mr. C. S. Speaker, for defendant in error, cited and commented upon the following authorities:

Hoffman v. Gordon, 15 Ohio St. 214; Railroad Co. v. Young, 21 Ohio St. 518; Railway Co. v. De Pascale, 70 Ohio St. 179; Haskins v. Railway Co., 7 Dec. R., 679; Kinkead's Code Pleading, 204, 205.

DAVIS J.

The testimony clearly shows that the plaintiff below, defendant in error here, was one of a party of men who were creating some disturbance in a street car. Whether or not it would be regarded in that locality as "disorderly conduct" is not for us to say, for there seems to be some dispute about it; but it is certain that the conduct of the party was such as was likely to mar the comfort of peaceable and well behaved passengers in a public conveyance, especially of ladies. There were some white women and also three colored women in the car, the latter sitting in front of and near to the plaintiff and his friends. The testimony tends to prove that something passed between the plaintiff and his party and the colored women which caused the latter to get up and leave the car by the rear door, in a manner indicating displeasure; and that as they left the car they said to the conductor: "If we can't ride without being insulted we will get off" and "It is a pity a person can't ride on these cars without being insulted by somebody that is drunk." There is testimony tending to prove that at the time this occurred, the conductor had already warned the men once, and perhaps twice. Under these circumstances, the court instructed the jury, as to what was said by the colored women when leaving the car, that if these words were not spoken in the hearing of the plaintiff, or loud enough to be heard by him, they should entirely disregard what was said.

We do not understand that this evidence was offered for the purpose of...