Pullman Co. v. Hall

Full title: PULLMAN CO. v. HALL

Court: Circuit Court of Appeals, Fourth Circuit

Date published: Jan 13, 1931

46 F.2d 399 (4th Cir. 1931)

Opinion

No. 3083.

January 13, 1931.

Appeal from the District Court of the United States for the Southern District of West Virginia, at Bluefield; William E. Baker and George W. McClintic, Judges.

Action by R. Marie Hall against the Pullman Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

This is an appeal from a judgment in favor of the plaintiff, R. Marie Hall, against the defendant, the Pullman Company, for damages in the sum of $10,000. The action was instituted to recover damages for an assault alleged to have been committed by one of the porters of the defendant. It was admitted that plaintiff was a passenger on one of defendant's sleeping cars between Bluefield, W. Va., and New York City, and defendant did not controvert the fact that one of its porters, without justification, unbuttoned the curtains at the end of plaintiff's berth and reached into the berth. There was wide divergence, however, in the contentions as to the nature of the porter's conduct and the inferences to be drawn therefrom. Plaintiff contends that he was feeling about in the berth, over the covers and over her body, and that she sustained serious nervous shock as a result thereof. Defendant contends that he was merely searching for whisky, and that, while he moved some of plaintiff's clothing on the shelf at the foot of the berth, he did not feel over the covers, or touch her body, or do anything else to cause her the fright and shock which she claims to have sustained.

The plaintiff relied upon her own testimony. She testified that she was awakened about 4:30 in the morning by the porter, who was underneath the green curtains of her berth; that he was feeling around over her and over the covers and her clothing; that he did not pull the covers off; that she did not give him time to do that, but that he had his hands on her when she awoke; that she then jumped up, and the porter ran out of the car; that a brakeman came by, and she told him to catch the man, which he did, and brought him back and he turned out to be the porter of the Philadelphia car; that he mumbled something, and the porter of her car scolded him; and that she went back to bed but could not sleep any more that night. She testified that for several days thereafter she was nervous and wrought up as a result of the fright she had received. On cross-examination, she admitted that before retiring she had taken a drink with a stranger introduced to her by the Pullman conductor.

The porter, one Patterson, denied that he touched plaintiff at all or that he put his hands anywhere except on the shelf at the foot of the berth, where he was feeling around in an attempt to find whisky; that, while making up the berth opposite the one in which plaintiff was sleeping, he smelled whisky in plaintiff's berth and, thinking that he would find whisky there, unbuttoned the curtain at the foot of the berth and felt on the shelf, trying to find the whisky among plaintiff's things. He admitted that he had had a drink of whisky prior to this, having obtained it from another passenger.

One Turner, the porter assigned to the car in which plaintiff was traveling, testified that, upon being informed by the brakeman that plaintiff wanted to see him, he went to see her; that she complained that some one had put his hand in her berth; that she identified Patterson as the man, and Patterson apologized; that she was not crying and did not seem upset. He testified also that she did not complain that Patterson had touched her; but, upon motion of plaintiff, the judge, over the exception of defendant, excluded this testimony.

One Myers, flagman of the train crew, testified that, as he was going through the car at Harrisburg, plaintiff complained to him of a man having put his hand in the foot of her berth and fumbled with her clothing; that plaintiff demonstrated to him how the man had been fumbling on the shelf, which is about fifteen or eighteen inches above the mattress of the berth; and that she said nothing with regard to his having touched her.

Prillaman, the Pullman conductor in charge of the car, testified that, after plaintiff had had dinner on the evening in question, she said something to him about having a drink, but that he had nothing to offer her; that later, upon one Gellatly, a passenger in another car, offering him a drink, he refused it, but took him back in the car where plaintiff was and introduced him to her; that Gellatly produced a flask, and plaintiff took a drink; and that she and Gellatly talked together for an hour or more.

Defendant also introduced the deposition of a Mrs. Stephens, a school teacher, who occupied the berth opposite that occupied by plaintiff. Her testimony was, to quote from the record, "that she was a passenger on the Pullman car occupied by Miss Hall and was on her way to New York on the same night; that she was awakened either by the jar of the train or by a noise in the coach, and after being awakened she overheard a conversation between a woman and several employees of the Pullman and railway companies relative to the entry of the woman's berth by one of the porters. Witness deposed that she heard this lady report to someone that her baggage had been ransacked by a porter, and that she heard the woman say she lay there and watched a porter going through her belongings; that the party to whom she spoke later returned to the car with a man who talked as though he was a porter, and that the porter stated that he didn't mean to go through her belongings and that he was sent to look for something, to which she said, `I lay there and watched you and if I had had a gun I would have shot you'; that there was no further conversation relative to the incident; that this witness had an upper berth which was at the end of the car and that she believed it was opposite the berth that had been entered by the porter; stating that during the conversation between the plaintiff and the employees of the Pullman and Railway companies this woman didn't mention anything relative to the porter placing his hands upon her body."

Defendant offered the deposition of Gellatly, which was excluded by the court over defendant's exception. The pertinent part thereof was as follows: "That while on the train a woman was introduced to him by the Pullman conductor, by the name of Miss Marie Hall, that the introduction was made in the drawing room of the New York car between nine and ten o'clock P.M.; that he was engaged in conversation with the woman in the drawing room of the New York car, and that the Pullman conductor was in there most of the time; that he obtained a glass from the porter in the Philadelphia car which glass was not taken from the car; that while he was with Miss Hall in the drawing room she drank two or three or four drinks of whisky; that he could not tell the approximate size of the drinks; that he returned to the Philadelphia car about 11:30 P.M., and that when he left Miss Hall she had whiskey in her possession; that he does not drink whisky."

There was other testimony of contradictory statements made by plaintiff to police officers of the railroad and to the investigator of the Pullman company; but there was no evidence of anything improper, incorrect, untruthful or indecent in their conduct or statements.

Defendant, before the jury retired, noted specific exceptions to the following portions of the charge, and assigns same as error:

"(a) Here this Pullman Company has fully and completely, by its own acts in keeping this negro porter in its employment, ratified the acts of that negro porter. This is not a case, of course, for vengeance, but to me it is sad to think that a great Company who carries our wives and daughters and even ourselves, would keep in its employment, a negro porter or a white porter, or anybody else, who would, in the dead hours of the night, drink liquor and paw around in the berth where our wife or daughter or ourselves were sleeping, claiming to be looking for liquor, or, as the counsel said yesterday, had reason to feel in there for liquor.

"(b) This Company has kept, as I say, this man in its employment, running on its cars, and by its own act, as I view the case, in effect, at least, ratifies the act of this man.

"(c) So far as I have been able to see, the whiskey question, so far as it relates to this girl, has but little place, if any, in this case, the fact being that even if I were drunk and riding on a Pullman car, I am entitled to the protection of all the officials of the Pullman Company in a decent and proper manner.

"(d) Then we have the evidence of this negro porter Patterson, himself, who testified that, according to his story, he had charge of this car from 11:30 to 2:30, three hours, while the other porter was resting; that he put a man in lower 12, and then that later he did come back and did unbutton the curtain next to the drawing room, and did feel around in that berth, as he claims, for whiskey.

"(e) Next, if I remember correctly, but the order doesn't seem important, there was read the deposition of a woman by the name of Stephens, as to certain things she alleged to have seen and heard, who said she occupied the upper berth, I believe, in No. 12, however, you will remember as well as I, without hunting it up, and she testified to certain things claimed to have been said by Miss Hall, and that she saw her the next morning sitting in her berth, that she observed a woman on the opposite side of the car and that that woman was apparently composed and looking out the window. If there is any value in that testimony I don't see it, but you might, and that's for you.

"(f) You will remember that this incident took place on the lines of the Pennsylvania Railroad Company, and, according to the testimony, this matter, which had occurred on the train some time in the small hours of the night, had been passed on to the New York Station and the Railroad Company had its agent there to meet her and, as we all know, to arrange for what might happen afterwards and gain as quick investigation and information as possible. I am not blaming a railroad company for trying to get information at any time. I appreciate the fact that if I represented the railroad company, I would have those investigations made as fast as possible, but I would want them made properly and correctly and truthfully and decently and all that sort of thing.

"(g) Now, it is a question for your consideration when this negro, drinking liquor, how drunken we do not know, but anybody who drinks liquor is more or less drunken, pawing around in that berth, picking up things and looking here and there and feeling here and there, for liquor, as he claims — I say, that's a question for you to draw your own conclusion if he did or did not paw over the body of this woman. You are not compelled to throw away your common sense and common judgment and common knowledge when you go to the jury room, but your duty requires you to use it. When one is feeling around in the berth in the dark, as he claimed, trying to find whiskey, presumably in a bottle or some other receptacle, and he himself having drunk all the whiskey he had gotten from this passenger, the quantity of which was not proven, but necessarily sufficient, from his own statements, to make at least some goodly quantity, you can draw, as I say, your own conclusions, and deductions from those admitted facts as to what took place, and you can draw your own conclusions as to the evidence of this conductor Prillaman, who knew that this man Gellatly had liquor in his possession and was transporting it on the train illegally, and would have been subject under the laws of the United States to a maximum of five years in the penitentiary, if he were in some other jurisdictions where some other courts would have an opportunity to take him, and then the fact that this conductor brings the man carrying the liquor back and introduces him, as he says, to this lady, you can take all that into consideration, that illegal action of this conductor, in considering his testimony and his character and in considering the fact that the Pullman Company keeps him in its employment."

One of the exceptions relied upon was the action of the judge in requiring the case to be tried at the June term, 1930. The facts with regard thereto are as follows: The action was instituted in a state court on February 7, 1930. The defendant filed with that court its petition and bond for removal on May 7, 1930. Shortly thereafter the court below, in making up a calendar for the June term to be held at Bluefield, ordered that attorneys having cases in process of removal file their records at once so that they could be tried at that term; and defendant thereupon proceeded, without excepting to the order, to docket the transcript in this case on May 26th. It later moved to strike the case from the trial docket on the ground that it had until June 6th within which to docket the transcript and thirty days thereafter within which to answer. The denial of this motion is the basis of the exception.

Mason P. Morfit, of Baltimore, Md. and J.M.B. Lewis, Jr., of Bluefield, W. Va. (McClaugherty Lewis, of Bluefield, W. Va., on the brief), for appellant.

Russell S. Ritz, of Bluefield, W. Va. (H.F. Porterfield, of Bluefield, W. Va., on the brief), for appellee.

Before PARKER, Circuit Judge, and COLEMAN and GLENN, District Judges.

PARKER, Circuit Judge (after stating the facts as above).

The exception to the refusal to strike the case from the trial calendar at the June term is entirely without merit. It is true that defendant had thirty days after the filing of the petition and bond within which to file the certified transcript of the record in the clerk's office; but the thirty days allowed for answering ran, not from the expiration of the thirty days allowed for filing the transcript, but from the actual filing thereof. Judicial Code, § 29 (28 USCA § 72). The defendant was allowed for answering the full thirty-day period after the filing of the transcript; and it is immaterial that, because of the judge's order, the transcript was filed earlier than it might otherwise have been. Even if the judge was without authority to make that order, which we do not decide, defendant obeyed it without objection or protest, and, upon the filing of the transcript, the thirty days allowed for answering began to run. The judge finds that the defendant had had a copy of the declaration since the preceding March; and, under these circumstances, we think that he was well within his discretion in ordering the case to trial on June 26th.

Upon the trial of the case a number of errors were committed, however, which entitle defendant to a new trial. In the first place, there was error in striking out the testimony of the witness Turner to the effect that immediately after the alleged assault plaintiff made no charge that the porter, Patterson, had touched her. She had testified that Patterson had placed his hands upon her; and her whole theory of the case was that she was shocked and frightened by the indecent nature of the assault. It was a strong circumstance in contradiction of her testimony that she made no such charge immediately after the occurrence of which she complains.

There was error also in excluding the deposition of Gellatly. Patterson had testified that he smelled liquor in plaintiff's berth; and it was certainly a circumstance corroborative of his testimony that plaintiff had had several drinks of whisky shortly before retiring and had whisky in her possession when she was left by Gellatly. We think, too, that the testimony was admissible for another reason. Plaintiff's claim for damages was based upon shock and injury to the feelings; and, in passing upon the extent of that injury, it was the duty of the jury to consider all of the surrounding circumstances. The fact that the plaintiff may have been drinking with a stranger did not, of course, absolve the defendant from liability for the wrongful act of its servant; but it was a circumstance to be considered by the jury in determining to what extent she was in reality shocked and frightened by the occurrence complained of. For this reason, there was also error in the portion of the charge marked "(c)," quoted in the statement of facts.

And we think it was prejudicial error for the court to tell the jury, as he did in the portion of his charge marked "(e)," that he saw no value in the testimony of the witness Lena T. Stephens. This witness was a woman passenger, a school teacher, presumably a person of character, and without interest in the controversy. She testified that the complaint of plaintiff at the time of the occurrence was, not that the porter had been placing his hands upon her, but that he had been going through her belongings. She testified also that plaintiff said to him that she lay and watched him and, if she had had a gun, would have shot him. This was testimony of a statement made by plaintiff immediately after the occurrence inconsistent with her testimony that she was awakened by the porter placing his hands upon her, and was important as contradicting and impeaching her testimony given upon the trial. The fact, if it was a fact, that plaintiff made no complaint at the time of the occurrence of the porter having placed his hands upon her would put an entirely different aspect on the case from that presented by her testimony. The testimony of this witness, therefore, was competent, relevant, and, from defendant's standpoint, not only material, but important. It was error for the judge to tell the jury that he saw no value in it. The trial judge may, of course, express an opinion upon the facts; but he may not withdraw material evidence from the consideration of the jury; and it is reversible error to submit the evidence and theory of one party prominently and fully, as was done here, and not call attention to the main points of the opposite party's case. Weiss v. Bethlehem Iron Co. (C.C.A. 3d 88 F. 23, 30; Hall v. Weare, 92 U.S. 728, 23 L. Ed. 500.

There was error also in the portions of the charge marked "(a)" and "(b)," wherein the court instructed the jury that the defendant had ratified the acts and conduct of the porter by retaining him in its service. This question of ratification had no place in the case as made by the pleadings or as submitted to the jury. It was pertinent only on the question of punitive damages; and, not only did the judge not submit that question to the jury, but no proper basis for punitive damages had been laid in the pleadings. Norfolk Portsmouth Traction Co. v. Miller (C.C.A. 4th) 174 F. 607; N. W.R. Co. v. Reeves, 97 Va. 284, 288, 33 S.E. 606. If such question had been presented, the ratification of the wrongful conduct of the porter would have been a pertinent inquiry; but, where the only issue was as to actual damages, and the defendant was liable for such damages because of the wrongful conduct of its servant, irrespective of ratification, the charge had a tendency to mislead the jury into thinking that ratification by the defendant was one of the elements to be considered in arriving at the amount of damages to be awarded.

And, apart from the fact that no basis was laid in the pleadings for an award of punitive damages, we think that, as applied to the facts of the case, the charge was clearly erroneous. It is true that ordinarily the master is not liable for the wrongful acts of the servant committed beyond the line of his duty or the scope of his employment, and that to authorize recovery in such cases it must be shown that the master either authorized or ratified the wrongful act. There is an exception to this rule, however, in the case of a master, who, as the defendant here, has undertaken the safe carriage and protection of the person injured. In such case, there may be recovery of actual damages arising from the wrongful act of the servant, notwithstanding such act was beyond the line of duty and the scope of employment and was neither authorized nor ratified by the master. Williams v. Pullman Palace Car Co., 40 La. Ann. 87, 3 So. 631, 8 Am. St. Rep. 512; Howe v. Newmarch, 12 Allen (Mass.) 55; Goddard v. Grand Trunk R. Co., 57 Me. 202, 2 Am. Rep. 39. To justify the recovery of punitive damages in such case, however, there must be either authorization or ratification by the master. Lake Shore Michigan Sou. Ry. Co. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97; Hagan v. Providence Worcester R. Co., 3 R.I. 88, 62 Am. Dec. 377; Hogg v. Plant, 145 Va. 175, 133 S.E. 759, 47 A.L.R. 308. Ratification involves the adoption of the act of the servant with knowledge of the facts; and mere retention of the servant in the service of the master does not necessarily amount to ratification, although in some cases it may be a circumstance to be considered by the jury, with the other evidence in the case, as bearing upon that question. Norfolk Portsmouth Traction Co. v. Miller, supra; Toledo, St. L. W.R. Co. v. Gordon (C.C.A. 7th) 143 F. 95; Dillingham v. Russell, 73 Tex. 47, 11 S.W. 139, 3 L.R.A. 634, 15 Am. St. Rep. 753, 762. Under the circumstances of this case, retention of the employee in the service of defendant not only did not of itself establish a ratification by the defendant of his improper conduct, but we do not think that that circumstance taken with the other evidence in the case would have warranted a finding that there was such ratification. Even if punitive damages had been asked, therefore, there was no basis for the instruction that the defendant had ratified the porter's conduct. As stated above, the plaintiff was entitled to recover actual damages irrespective of ratification; and the charge on ratification had a tendency to mislead and was clearly prejudicial.

And we think, also, that the portions of the charge marked "(f)" and "(g)" were erroneous and prejudicial. There was no evidence that the investigation made at the instance of the defendant was conducted otherwise than properly, correctly, truthfully, and decently, and there was no occasion for raising any question with regard thereto. And there was no basis for allowing the jury to consider against the defendant the fact that it retained the conductor in its service after he had introduced Gellatly with liquor in his possession to plaintiff. The fact that the conductor may have countenanced a violation of the liquor laws under the circumstances detailed might have been considered in passing upon his credibility and the weight to be given his testimony, but the fact that defendant retained him in its service had nothing to do with the matter. It was not a circumstance bearing either upon the conductor's credibility or upon plaintiff's damages.

Because of the errors mentioned, the judgment of the court below must be reversed, and the case remanded for a new trial.

Reversed.