Spearman v. Toye Bros. Auto & Taxicab Co., Inc.

• Citation: 114 So. 591,164 La. 677
• Decision Date: 31 October 1927
• Docket Number: 28141
• Parties: SPEARMAN v. TOYE BROS. AUTO & TAXICAB CO., Inc
• Court: Supreme Court of Louisiana

114 So. 591

164 La. 677

SPEARMAN v. TOYE BROS. AUTO & TAXICAB CO., Inc

No. 28141

Supreme Court of Louisiana

October 31, 1927

Appeal from Civil District Court, Parish of Orleans; M. M. Boatner Judge.

Action by Mrs. Emma Spearman against the Toye Bros. Auto & Taxicab Company. From a judgment for plaintiff, defendant appealed to Court of Appeal, which transferred cause to Supreme Court.

Modified and affirmed.

John P Sullivan and David Sessler, both of New Orleans, for appellant.

J. L Warren Woodville, of New Orleans, for appellee.

OPINION

O'NIELL, C. J.

This is a suit for damages. The plaintiff charges that, while she was riding on the front seat of a sight-seeing car operated by the defendant as a public conveyance, the chauffeur, "with his right hand, grasped her left thigh, squeezing it, greatly to her humiliation, mortification, mental pain, and anguish." She claims $ 15,000 damages "for the humiliation, mental anguish, pain, and suffering" which she says she endured "as the result of the insult and outrage." There is no claim for damages for physical injury, nor allegation that any such injury was inflicted. The civil district court, trying the case without a jury, gave judgment for the plaintiff for $ 2,500, from which the defendant appealed to the Court of Appeal. That court, on its own motion, transferred the case here for want of jurisdiction. The appellant insists that the case is within the jurisdiction of the Court of Appeal, and should be retransferred.

On the Question of Jurisdiction.

The third paragraph of the tenth section of article 7 of the Constitution of Louisiana, defining the jurisdiction of this court in civil cases, makes this exception, viz.:

"Except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances."

The cases coming within the exception are, by the general terms of the 29th section of the same article of the Constitution, appealable to the Courts of Appeal. This case, however, is not within the exception, for it is not a suit for damages for physical injuries or for damages caused by or resulting from an act which caused also a physical injury. As far as the allegations and the proof go, there was no more of a physical injury to the plaintiff than there would have been if she had been insulted verbally by the chauffeur. The purpose of excepting from the jurisdiction of this court suits "for other damages * * * arising out of the same circumstances" as those causing physical injuries was to confer upon one and the same appellate court jurisdiction over a suit for the damages of every character resulting from a wrongful act or negligence causing physical injury to a person. As the wrong complained of in this case, if it occurred, did not cause physical injury to the plaintiff, and as the amount in dispute exceeds $ 2,000, exclusive of interest, the appeal is within the jurisdiction of this court, and not of the Court of Appeal.

On the Merits.

The defendant filed an exception of no cause of action, before answering the petition, and renewed the plea in this court, on the ground that the plaintiff did not allege that she had paid her fare as a passenger on the car. It is true that she did not allege, in so many words, that she had paid for transportation as a passenger on the car, but the context of the petition showed plainly enough -- and it was never disputed -- that she was rightfully on the car, as a passenger, entitled to proper treatment and respect at the hands of the employees in charge of the vehicle. The judge was right, therefore, in overruling the exception of no cause of action.

The plaintiff and a Mrs. Brogdon, an aunt of her husband, boarded the car on Canal street, near Carondelet street, in New Orleans, at the beginning of one of the scheduled sight-seeing trips. When the car stopped, according to custom, at the entrance to the Roosevelt Hotel, on University place, to take on other passengers, the plaintiff asked permission to bring with her a six year old child of a friend living on the other side of University place. She offered to pay the child's fare, but was told by the chauffeur or the lecturer, who were in charge of the car, that there would be no charge for the child. When she returned with the child she requested to be transferred from the seat which she and her companion had taken, immediately behind the driver's seat, to the driver's seat, so that Mrs. Brogdon, who was a stranger in the city, might have a better view along the route. The so-called lecturer, with his megaphone, occupied the left end of the front seat, and the chauffeur sat next to him. The plaintiff selected the seat next to the chauffeur, and placed the child between her and Mrs. Brogdon, who sat on the right end of the front seat. The five persons filled the the seat to its capacity; and the record shows beyond any doubt that, with five persons on the front seat, the chauffeur had to be very careful to avoid letting his hand come in contact with the leg of the person beside him whenever he manipulated the lever controlling the speed of the car, which he had to do often, and sometimes hurriedly, in obedience of traffic regulations. On the trip in question, according to schedule, the car went first through the downtown section of the city, as far as Esplanade avenue, and thence proceeded uptown as far as Audubon Park. According to the plaintiff's testimony, the chauffeur's hand touched her leg twice during the whole...