White v. Southern Kansas Stage Lines Co.

• Decision Date: 09 July 1932
• Docket Number: 30651.
• Citation: 12 P.2d 713,136 Kan. 51
• Parties: WHITE v. SOUTHERN KANSAS STAGE LINES CO. [*]
• Court: Kansas Supreme Court

12 P.2d 713

136 Kan. 51

WHITE v. SOUTHERN KANSAS STAGE LINES CO. ^[*]

No. 30651.

Supreme Court of Kansas

July 9, 1932

Syllabus by the Court.

Overruling motion for new trial on ground action at third setting was tried in absence of defendant's counsel held not abuse of discretion.

Error assigned on the overruling of a motion for a new trial, based on the ground that the action at its third setting for trial had been called and tried in the absence of counsel for defendant considered, and held that abuse of the trial court's discretion in overruling the motion was not sustained by the record.

Appeal from District Court, Wyandotte County, Division No. 3; Williams H. McCamish, Judge.

Action by G. A. White against the Southern Kansas Stage Lines Company. From a judgment overruling defendant's motion for a new trial, defendant appeals.

John W Blood and F. W. Prosser, both of Wichita, Arthur J. Stanley of Kansas City, Kan., and J. T. Jennings, of Kansas City, Mo., for appellant.

Joel E Osborn, Jr., of Kansas City, Kan., for appellee.

DAWSON J.

This is an appeal from a judgment overruling a motion for a new trial in an action predicated on a denial of civil rights in breach of R. S. 21--2424. The basis of the motion was that the trial court abused its discretion in calling the case for trial, in the absence of counsel for defendant.

Plaintiff, a colored man, sued for damages for racial discrimination against him while he was riding as a paying passenger in defendant's stage line bus en route from Kansas City, Kan., to Oklahoma City, Okl. Plaintiff boarded the bus and sat down in the third seat from the front. He had sat there but a short time when the bus driver approached and ordered him to go back to the rear of the bus, in that part of the conveyance occupied by smokers. Plaintiff did not use tobacco and the smoke sickened him. When the bus reached Topeka, plaintiff came forward and told the driver he could not stand tobacco smoke, but the driver said, "I don't care a damn; you stay there." At Emporia where the bus halted for lunch plaintiff was too sick to eat. He drank some soda water and bought some aspirin to relieve a headache caused by the tobacco fumes. At Wichita plaintiff was transferred to another bus, where he completed his journey in comfort; and on his return to Kansas City he brought this lawsuit, pleading the material facts. Defendant joined issue with a general denial.

The cause was set for trial on November 8, 1931, and tried three days later. Counsel for defendant did not appear. A jury was impaneled; plaintiff adduced his testimony; the court instructed the jury; the jury retired to deliberate, and eventually returned a verdict for plaintiff for $50 as actual damages and $400 as exemplary damages. Judgment was accordingly entered in plaintiff's behalf for $450.

Within three days defendant filed a motion for a new trial on the ground that defendant was prevented by unavoidable casualty and misfortune from appearing and defending the action. Defendant set up another ground, misconduct of counsel for plaintiff, but that ground was abandoned. Defendant offered to pay the accrued costs.

In support of this motion a number of affidavits were offered in evidence. These showed that J. W. Blood, of Wichita, attorney for defendant, was engaged in important law business in Topeka, Pratt, Wichita, and Oklahoma City about the time this action was to be tried, and that he was depending on another attorney for defendant, J. T. Jennings, of Kansas City, Mo to have the cause set for trial at some time when he (Blood) could be on hand. It was also shown that Jennings, although a resident of Kansas City, Mo., and having a law office in the Missouri town, was authorized to practice law in Kansas, but he was prevented from attending to this lawsuit because he had an important rape case to try in Missouri on the same day this cause was called for trial in the Kansas court. ...