Pullman Co. v. Pulliam

• Decision Date: 27 February 1920
• Citation: 218 S.W. 1005,187 Ky. 213
• Parties: PULLMAN CO. v. PULLIAM.
• Court: Kentucky Court of Appeals

218 S.W. 1005

187 Ky. 213

PULLMAN CO. v. PULLIAM.

Court of Appeals of Kentucky.

February 27, 1920

Appeal from Circuit Court, Boyle County.

Action by Nellie Pulliam against the Pullman Company. Judgment for plaintiff, and defendant appeals. Reversed for further proceedings.

Geo. E Stone, of Danville, and Bingham, Peter, Tabb & Levi, of Louisville, for appellant.

Emmet Puryear, Robt. Harding, and John W. Rawlings, all of Danville, for appellee.

QUIN J.

Defendant (appellant) is seeking the reversal of a judgment for $5,000 obtained by plaintiff at the hands of a jury.

The court sustained a motion for a directed verdict made by the Cincinnati, New Orleans & Texas Pacific Railway Company, a codefendant.

Plaintiff took passage in a Pullman car in November 1915, at Tuscaloosa, Ala., destined for Georgetown, Ky. and she alleges that after retiring for the night she was awakened by some person invading the privacy of her berth and placing their hands upon her person. She gave an alarm. After some time the Pullman conductor appeared, and he assured her of protection. A second attack was made upon her. The conductor was again summoned and promised to keep a watch in the car thereafter. She was attacked a third time, when a ring was taken from her finger. As a result of these attacks, she suffered great mental and physical pain, her nervous system was shocked, and she sustained permanent injuries.

We will discuss the several points urged for reversal in the order presented.

The court did not err in overruling the motion for a peremptory instruction; there was sufficient evidence to take the case to the jury, as will be seen later, when we take up the question of evidence. Instruction No. 1 is not erroneous. It reads:

"You are instructed that it was the duty of the defendant Pullman Company, to guard and protect the plaintiff from any annoyance and assault, so far as could reasonably be done by the exercise of ordinary care, while she was a passenger riding in its car; and if you believe from the evidence in this case that the privacy of plaintiff's sleeping apartment was invaded one or more times, or that (while so occupying said apartment) she was subjected to assault by having the hands of some person placed upon her against her will, or that a ring was taken from her hand against her will, and that by each, or any, or all of said acts she was injured, or frightened, or humiliated, or shocked, and that each, or any, or all, of said acts might have been prevented by the exercise of ordinary care and vigilance under the circumstances then and there existing upon the part of the agents and servants of the defendant in charge of said car, then the law is for the plaintiff, and you will find a verdict for her against the said company, and if you do not so believe you will find for the defendant."

It is argued that such instruction was susceptible of the construction that the action of the conductor in grabbing plaintiff's arm when she was going to the diner, as brought out in the proof, might have been considered by the jury to have been embraced in the language employed. We do not so understand it; but, since a reversal must be ordered for other reasons, the court upon a retrial will insert the parenthetical clause found above. This will overcome an apparent objection to an otherwise concededly proper instruction.

Instruction No. 2 is erroneous in two particulars: (1) There was no evidence that the assaults complained of were made by any agent or servant of the defendant, and hence any reference to this fact should not have been embodied in the instruction. (2) It contained the further vice of allowing the jury to find punitive damages.

To authorize an instruction on punitive damages, it must be shown that defendant had acted wantonly, recklessly, oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations. L. & N. R. R. Co. v. Wilkins, Grd'n, 143 Ky. 572, 136 S.W. 1023, Ann. Cas. 1912D, 518, in which case the court quotes with approval the following language found in Central Kentucky Traction Co. v. May, 137 Ky. 737, 126 S.W. 1093:

"Punitive damages are not authorized and should never be allowed in any case, where there is not some evidence tending to show that the defendant has acted maliciously, willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others (Koestel v. Cunningham, 97 Ky. 421 [30 S.W. 970, 17 Ky. Law Rep. 296]), or, where there is an absence of malice or reckless disregard of the safety of plaintiff's person ( McHenry Coal Co. v. Sneddon, 98 Ky. 684 [34 S.W. 228, 17 Ky. Law Rep. 1261])."

See, also, South Covington & Cincinnati Street Ry. Co. v. Barr, 147 Ky. 549, 144 S.W. 755; L. & N. R. R. Co. v. Logan's Adm'x, 178 Ky. 29, 198 S.W. 537.

The record contains no evidence of any conduct or misconduct on the part of defendant's agents or servants sufficient to bring the case within the rule stated above and the court erred in submitting this question to the jury.

It is said the verdict is not sustained by the evidence, but with this contention we cannot agree. Plaintiff testified:

She was on her way to visit her grandmother at Falmouth; she left Tuscaloosa about 4:40 p. m.; she had $20 in her shoes, and some remark was made by her school friends not to take off her shoes; this was in the presence of the porter and conductor; she retired about 8:30; about 11 p. m. she was awakened and put her hand out and touched a large rough hand, which was jerked away; she turned on the light in the berth, rang the bell, and in about ten minutes the conductor came, and he laughed at her; the lights were turned out in the sleeper, and while she was still awake, about two hours later, some one touched her foot, she screamed, and rang the bell; the conductor came and said he would leave the big light burning, and told her that if any one came again to try to see who it was; after the lights had been put out, along about 3:30 or 4, some one again touched her foot, she raised up, put her right hand out, and as she did so some one grabbed her hand, and took off her cameo ring; she screamed, and a woman in the opposite berth asked what was the trouble; although she rang the bell, no one came; soon thereafter it was daylight; she never closed her eyes after the first attack; as she went to the dressing room, she saw the porter looking at her, as she says, "with an evil eye"; this so frightened her that she finished dressing in her berth; later she went to the dressing room with a woman passenger; she told the train conductor of the loss of her ring.

The Pullman conductor tried repeatedly to talk to her; offered to assist her to the diner; she declined, and "he kinda grabbed her arm"; she was in a state of collapse when she reached Georgetown; cried all the way to Falmouth; couldn't control herself; wouldn't go to her room alone, in the daytime; she is still nervous and cannot sleep alone; she was never sick before. She went to see a physician the second day after she reached Falmouth. Her testimony as to her nervous condition is corroborated by other witnesses, including her mother.

The physician, visited by plaintiff at Falmouth, gave his deposition in which he said he had known plaintiff all her life; that he saw her on November 26th, in his office; she was then suffering from a skin affection; she was anæmic and in a generally rundown condition; he regulated her diet and gave her a tonic; his treatment lasted for about three weeks; she seemed to have improved when she left; he did not recall that the patient said anything to him about any disturbance on the railroad train, or mentioned the loss of her ring.

The rule...