Southeastern Greyhound Lines v. Conklin

• Decision Date: 15 October 1946
• Parties: SOUTHEASTERN GREYHOUND LINES v. CONKLIN.
• Court: Kentucky Court of Appeals

196 S.W.2d 961

303 Ky. 87

SOUTHEASTERN GREYHOUND LINES v. CONKLIN.

Court of Appeals of Kentucky

October 15, 1946

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Action by H. P. Conklin against the Southeastern Greyhound Lines to recover for a tort in causing plaintiff to be ejected from defendant's bus. From a judgment for plaintiff, defendant appeals.

Reversed with directions.

H. C. Gillis, of Williamsburg, Robert L. Smith, of Corbin, and R. W. Keenon, of Lexington, for appellant.

Thomas F. Young, of Corbin, and Stephens & Steely, of Williamsburg for appellee.

VAN SANT, Commissioner.

The action is for damages allegedly resulting from the commission of a tort by the driver of one of appellant's busses, in causing appellee to be ejected from the bus. Judgment was pronounced upon a verdict for appellee in the sum of $2,500. Appellant alleges numerous errors in support of its contention the judgment should be reversed, the first of which is that the Whitley Circuit Court did not have jurisdiction of the action.

In so far as pertinent, Section 73 of the Civil Code of Practice provides: '* * * An action against such (common) carrier for an injury to a passenger, * * *, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he resides in a county into which the carrier passes; * * *.'

Section 74 of the Civil Code of Practice, in so far as pertinent recites: 'Every other action for an injury to the person or property of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this State, must be brought in the county in which the defendant resides, or in which the injury is done.'

Appellee claims no damage for injury to his character; and since appellant is a common carrier, and a mental injury is a personal injury, Kingam & Co. v. Ossam, 75 Ind.App 548, 121 N.E. 289, Section 73, supra, fixes the jurisdiction of the Court. The action concededly was not brought in the county in which the defendant resides, nor in the county wherein the acts complained of occurred; but it was brought in a county through which the carrier passes, and if that county was the county of appellee's residence at the time the action was instituted, the Whitley Circuit Court had jurisdiction. The evidence shows appellee to be a registered voter in the State of Nebraska; but because of and as an incident to, his employment of procuring war workers for the rocket plant of E. I. DuPont Company, at Charlestown, Indiana, he lived continuously in an apartment and hotels in Whitley County from December, 1944, to August 28, 1945. The acts complained of occurred August 3, 1945, and the suit was instituted on August 22, 1945. In Louisville & N. R. Co. v. Mitchell, 162 Ky. 253, 172 S.W. 527, 529, the Court, in construing Section 73 of the Civil Code of Practice, and quoting from Bouv. Law Dict., Rawle's Third Revision, p. 2920, said: "Residence indicates permanency of occupation, as distinct from lodging, or boarding, or temporary occupation. It does not include as much as domicile which requires an intention combined with residence. One may seek a place for purpose of pleasure, of business, or of health. If his intent be to remain it becomes his domicile; if his intent be to leave as soon as his purpose is accomplished, it is his residence."

Appellee's stay in Whitley County was indefinite, and he intended to, and did, leave as soon as, but not until, his superiors assigned him to another territory. When that occurred, but not until it occurred, his purpose in residing in Whitley County was accomplished; but until his purpose was accomplished, he was a resident of Whitley County within the meaning of Section 73 of the Civil Code of Practice as construed in Louisville & N. R. Co. v. Mitchell, supra, and the Circuit Court in that county had jurisdiction of the action.

Appellant next contends the petition fails to state a cause of action founded on tort. Appellee alleged that he had purchased a ticket from Middlesboro to Corbin, presented it to the driver of the bus who accepted it in payment of the fare; whereupon appellee took his seat in the bus. He then alleged 'that the defendant's agent and driver who was then in charge of its said bus, in a high-handed, boisterous and insulting manner, and without cause for so doing, demanded that this plaintiff leave the said bus, refused to let him ride thereon to Corbin, Kentucky, or to any other point, called a police officer and had said officer arrest this plaintiff without a warrant for his arrest and had said officer remove this plaintiff from said bus.' Where one has purchased a ticket, has been accepted as a passenger by a common carrier, and is wrongfully expelled as a passenger from the coach, but such expulsion is not attended by abuse to the person expelled, the carrier, through its agents, is liable for a breach of contract. Louisville & N. R. Co. v. Wells, 219 Ky. 718, 294 S.W. 143; and Louisville & N. R. Co. v. Thomas, 298 Ky. 494, 183 S.W.2d 19. But where the wrongful expulsion is attended by tortious acts, such as assaulting or attempting to assault the passenger, or using profane or abusive language, or by other insulting conduct, the carrier is guilty of having committed a tort, and is liable therefor in damages. Louisville & N. R. Co. v. Fowler, 107 S.W. 703, 32 Ky.Law Rep. 1021; and Louisville & N. R. Co. v. Thomas, supra. The case of Dierig v. South Covington & C. St. Ry. Co., 72 S.W. 355, 24 Ky.Law Rep. 1825, relied on by appellant, is not in point. In that case, the petition failed to allege facts showing the plaintiff to have been a passenger of the Street Railway Company, and failed to allege that he was expelled from the car without cause. The Court held that the petition was fatally defective. But here the petition alleges appellee to have been a passenger on the bus, to have been expelled therefrom without cause, and that, in expelling him from the bus, the driver thereof was guilty of tortious acts. Clearly, the petition states a cause of action founded on tort.

The next complaint is that the Court erred in admitting incompetent evidence. Appellee introduced testimony to the effect that, after he was escorted from the bus, the officers who had been called by the driver arrested him and took him to jail, whereupon he was released on bond to appear, which he did, in Police Court the following morning. The officers did not arrest him and take him to jail at the direction of the driver of the bus; wherefore, the evidence of this conduct on the part of the policemen was incompetent. The appellee, in open Court, withdrew the allegations of the petition in respect to mental suffering, humiliation, and embarrassment occurring after he had been taken off of the bus by the officers, and moved the Court to instruct the jury not to consider this evidence in arriving at its verdict. The Court sustained the motion and admonished the jury accordingly. T...