GRA:Y V. CINCINNATI BOUTHE!\N B. CO.
the defendant has shown a valid title prior in point of time to the title to any of the four claims relied on by plaintiff in like manner embracing said vein, whether such valid prior claim of defendant be 600 or 100 feet wide, the verdict must also be for the defendant. But if, on the contrary, you find that the said Actreon vein, at the point where the trespass is alleged to have been committed, is the vein actually discovered and located by plaintiff's grantors, in anyone of the said four claims of the plaintiff, or that it has its top or apex within the planes of the side lines of anyone of said four claims drawn vertically downwards, and if you further find that the defendant has not shown a title as against said plaintiff by a valid subsisting prior location embracing said top or apex within its side lines drawn vertically downwards, then your verdict must be for the plaintiff. Gentlemen, I believe the testimony is very indistinct as to the amount of damages. No testimony was offered as to the amonnt of damages. If you- find for the plaintiff, and you havano testimony on which to estimate correctly the amount of damages sustained, yon will find nominal damages, say one dollar. The form of the verdict will be, "We, the jury, find for the plaintiff, and assess the damages at so much." If you find for the defendant your verdict will be, "We, the jury, find for the defendant." A Juror. How can the jury find a certain sllmwhenno evidence was offered? The Court. You will then find nominal damages, one dollar. The verdict of the jury was for the defendant.
GRAY V.CINCINNATI SOUTHERN
((Mcuit (Jourt, 8. D. Ohin, W· .D.
April 18, 1882.)
Common carriers have the power to make reasonable regulations for the transporting of their passengers from point to point. Whether they may classify passengers according to sex and color not decided. 2. BUlB--COLORED W OliAN HOLDING FmsT-(''LAS8 TICKET ENTITLED TO FmSTCLASS ACCOMMOD,ATION8-LADIES' OAR-:-SMOKING CAR. '
A colored lady who had purchased and held a first-class ticket was entitled to admission into the ladies' car, it there was room far her therein; and, if she was refused admission and the railroad company declined to carry her flXcept
-Repol'ted b)' J. C. Harper, Esq., or the Clnclanatl bar.
in the smoking car, containing only men, some of whom were smoking, she had the right to decline to accept such accommodations, and it is liable to her in damages.
SAME-FIRST-CLASS TICKETS-WHITE AND COLORED PASSENGERS- EQUALITY.
Carriers are bound to provide for colored passengers, holding first-cluss tickets, accommodations precisely equal in all respects to those provided for white passengers holding similar tickets.
The general tendency of courts and text writers of the present age is to embrace all kinds of damages under the heau of compensatory damages, except in cases of fraud or insult, in which cases vindictive and punitive damages may be awarded. 5.
1.IEASURE OF DAMAGES IN ACTION FOR WRONGFUL ExCLUSION FROM CARSExPENSES OF SUIT, ETC.
In an action against a railroad company to recover damages for wrongful exclusion from its cars, in which it appeared that the plaintiff, a colored ladYipur. chased and held a first-class at the time she applied for admission to the ladies' car; that she was lady-like in appearance and conduct, and was at the timeearrying a sick child in her arms: and that the company refused to carry her except in the smokjng car, in Which ;were men only, some of whom were smoking: shy left the cars: held, that 8he was entitled to such dam· ages as would make her whole, and the jury should consider the loos (if time and inconvenience sbe had been put to, and the proper amount of expenses incurred in the vindication Of her
At Law. Action for damages for refusing plaintiff admission into the cars of the defendant at Cincinnati, Ohio. The allegations of the pleadings are stated in the judge's charge. Upon the· trial evidence was introduced showing that the plaintiff (who is a colored lady) hacl purchased at Lexington, Kentucky, a first-class round-trip ticket from that place to Cincinnati. On the twenty-seventh of August, 1881, accompanied by her husband, (a Baptist minister of Lexington,) and carrying a sick child in her arms, she went to the defO'l1dant's depot to return to Lexington. Two passenger coaches were standing at the depot,' one (the rear car) containing ladies and gentlemen, and the other only, some of whom were smoking. Sheattel'npted to enter the rear (the ladies') car, but was stopped by the brakeman and directed to enter the for. ward car. Her husband then applied to the conductor td'let his wife intp the, ladies' car, hut he raiused, and being for the reason stated that it was because she was colored. Her husband. took a seat in the smoking car and returned to Lexington. The plaintiff deto go in that car, remained in the cit,r, and some days later returned home by another route·. ,testified plaintiff was lady-like in her appelU'ance and bearing, which was not even attempted to be questione4,.
CINCIl>'NATI SOUTHERN B. CO.
C. H. Blackbur;n and A. G. Collins, for plaintiff.
W. T. Porter, contra. SWING, D. J., (charging jury.) This is an action brought by the plaintiff for the purpose of recovering damages against the defendant for an unlawful refusal, as it is claimed by her, of the defendant to permit her to enter the cars of the defendant at Cincinnati to go to Lexington. She alleges that she is a resident of Lexington, Kentucky; that the defendant is a corporation 'linder the laws of Ohio; that its principal office is situated in Cincinnati, Ohio; that she purchased a ticket at Dexington, Kentucky, for Cincinnati and return i that at a certain time in the city of the agents and servants of the defendant refused to permit her to enter the car of the defendant for the purpose of returning to Kentucky, to her home. That is the case made by the plaintiff, with the additional allegation that such refusal was because she was a woman of color wholly. The defendant, by its answer, denies these several allegations, except that as to its being a corporation under the laws of Ohio, and doing busi. ness in Cincinnati, Ohio. This is the case made upon the The case made in testimony and the case argued to the jury is not the case presented in the papers. The case as attempted to be made by the plaintiff,' and as attempted to be made by the defendant, is about this: That theI'e were two cars connected with the locomotive of this train, which was aboht to start on a Saturday evening; on a certain day in August, from Cincinnati to Lexington; that one of these cars was set aside for and gentlemen, and that in tihe other cat were nobody but gentlemen-a smoking car. This 'is 'the claim of the plaintiff. No Buch' allegation is made in the petition. The allegation is a broad allegation 'that she attempted to enter the car and that she was refused adtnission. The defendant says that she was not refused admission to the car, but that alie 'wasrefused permission to enter It' particular CliT, and' that shewaB diteatedt() go into another car. The plaintiff repHes that it is true that she was refm;ed to enter a particular car, and was directed to gO'into anothe'r car. ' ,; "; Some discussion has been h&d whether this is a petitiohu:nderthe civil rights bill, or whether it is a.'petition at common 'I Shall not enter into any examination as to the nature and character of What is termed the civil rights bill; whether that act provides for retn\ltlieir for the violation of any other rights than those which are COnferred upon the citizens of the United States as citizens oftha UIiited or whether it refers to the natural rights whichnieti enjoy, or those
given to them by the state as citizens of the state, or how far it creates or gives rights which were not in existence before. For the purpose of this case, as it now stands., I will briefly state the law as applicable to it. ' A railroad company is a common carrier, and is under obligations to carry the traveling public from point to point. If the public comply ,with the rules an<1 regulations, it is bound to carry and transport them. ,What kind ofculesand regulations they are at liberty to make it is not necessary now to discuss.. I take it for granted, however, that a railroad company or a steam-boat company, or any common carrier, has the right to plake reasonable regulations for the transporting of its passengers from point to point. They may have the right to ,make a regulation that the gentlemen shall ride in one car, and the ladies shall ride in another car. They perhaps have a, right (which it is not, now necessary to determine) to make a regulation that the colored peoplesha.llride in one car and the white people shall ride in another. car; but if they have any such right to classify, first, as to the ladies, and gentlemen, they are bound by the law, ,wherever a party Pt10ys for a first-class ticket, if he qe ,a. gentleman, to provide for him such accommodations as they ordinarily provide for the The, money is just as good as the ladY'B, in the eye of the law, and they are bound to provide for him such reasonable accommodations as he has paid and contracted for. ' , If this lady purchased a at Lexington for Cincinnati and return, and at Cincinnati she applied to the agents of this road, presenting herself for admission into the car which was provided for ladies, white or ,c.olored" and there was room in that car, i1; was the duty of the of this company tp open the door and furnish her a seat; and if they xefused to do so, and proposed to caxry her only provided she would ride in the smoking car, where none but gentlemen were, and where they were smoking, she had a right, under the law, to say that she would not go into it. This company was bound to provide for her such accommodations as were provided for the white women. In the eye of the law we all looting. We stand before the law equal. stand now upon the Whatever the social ,relations of life may be, before the law we all stand upon the broad plane of equality. And this company was !J'ound to provide for this colored woman precisely such accommodations, in every respect, as were provided upon their trnin for '.Vhite women. If they refused. to give her such llccummodations, she
· J · . . ,
GRAY V. CINOINNATISOUTHERN B. CO,
,had a right to say that she would not travel in the imioking car. It is very unpleasant for gentlemen, sometimes, to sit in a car of that character. Not every man smoke; not every man likes It is bad enough for them to force a gentleman who does not use tobacco, and who sickens at the scent of smoke or tobacco, into a. car of that character, let alone forcing a lady there with a sick child. If you, find that she purchased a ticket trom Lexington to Cincinnati and return, and it was a first-class ticket, she had a right to enter the car that was provided for the ladies and gentlemen, and,if there was room in, it, it was the dnty of the conductor to take her and place ber in it. If there was no room in that car and the other car was a suitable car for her to ride in, then it washer duty to have gone into the other car. .If she was deprived of the right which, as I say, the law ka7e ber, by this company, then this company is reponsible to her in damages. . , There are two or three kinds of damages, but the general tendency of all courts and the law-writers of the present age is to embrace them almost all under one bead, and that is compensatory damages, unless there is fraud or ip.sl+lt connected with it, and in tbat case the jury are warranted in visiting upon the offending party vindictive or punitive dam&ges, so as to deter others from doing what it is claimed the party did. If you find for the plaintiff in this case you will assess her damages as will make her whole, considering tbe loss of time and inconvenience sbe was put to. And you may also take into cansid.' eration what proper amount of expenses might be in the vindicaverdict will be tion of this right. If you find for the defendant, for the defendant. , Verdict for plaintiff for $l,QOOdamages.
NOTE. Cauicl:g have power to make regnlations for the proper accommOdation of their passengers, but such regulations must be reasonable, tending to the comfort and safety of passengers. O. & N. W. By. 00. v. Williams, 55 Ill.lS5; ])ay v. OWen, I> Mich. 520; Thompson. Car. Pass. 335. A rule.setting apart a car fO!; the exclusive use of ladies, and gentlemen accompa1;lied by ladies, is reasonable and may be enforced. 0.& N. TV. By. Co. v. TVilliams, ,supra; Buss v.C. & N. W. Ry. 00. 36 Wis. 450; Thompsori, Car. Pass. 345. Such regulations must be uniform in respect to persons; and if car has been set aside for the exclnsive use of ladies, and gentlemen accompanied by ladies, a colored womaR cannot, be excluded upon the ground of her color. O. & N. TV. By. 00. v. Williams, supra; Oogerv. N.TV. etc. Packet Co. 37 Iowa, 145. Separate accommodations may be provided for colored passengers, but they must be equal in quality and convenience to those fumished wllites. Green
·v. City 01 Bridgetown,
(Dist. Ga.) 9 Cent. L. J. 206; The Civil Rights Bill, (W. Dist. N. Car.) 1 Hughes, 541. See note to U. S. v. Buntin, 10 FEP. REP. 730. They cannot classify their passengers on the basis of their morality. Brown v. Memphis, etc., R. Co., 5 FED. REP. 499; 12 Cent. L. J. 442; 11 Rep. 424. The reasonableness of regulations is a mixed question of law and fact; to be found by the jury, under the instructions of the court. Dall v. Owen, 5 Mich. 520; Bass v. C. & N. W. Ry. Co. 36 Wis. 450; Com. v. Powe?, 7 Mete. 596; Jencks v. Coleman, 2 Sumn. 221; Bnwn v. Memphis, etc., R. Co. 4 FED. REP. 37. It is a :pure question of fact. State v. Overton, 24 N. J. Eq. (4 Zab.) 435; Morris, etc., R. Co. v. Ayres, 29 N. J. Eq. 393; (but see Bass O. & N. W. Ry. Co. SUp1'a.) Contra, it is a question of law for the court. C. & N. W. Ry. Co. v Williams, 55 Ill. 185, 188. If there is no sitting room in the cars, and there is. in the ladies' car, g.entlemen passengers cannot be left standing without a breach of the contrlj.Ct of carriage; but the officers of the train may select those who are to entel'the ladies' car. Ba88 v. C. & N. W. Ry. Co. 36 Wis. 450.-[REp.
MEYERSON t1. ALTER.·
(Oz'rcuit Court, E. D. Louisiana. January, 1882.)
M'LYCIOTTS PUOSECUTION-MARRIED WOMEN.
A suit for damages for the malicious progecutlon of a marrIed woman must be brought Ly her husband. Louisiana Code of .Practice, art. 107 i Louisiana Civil (Jode, art. 2404.
IIenry J. Lovy and E. B. Kmttschnidt, for plaintiff. A. G. Brice, for defendant. BILLINGS, D. J. This is a suit brought by a wife to recover damages for a malicious prosecution. Her husband has subsequently authorized her bringing the suit, but comes "solely to assist her in prosecuting this suit, and as husband does not claim any share in said damages, but joins her to claim the same in her behalf." The exception interposed by the defendant is that this action must be brought by the husband. It is evident that if the exception be well taken it has not been cured by the paper filed by the husband. So far as the right in law on the part of his wife to maintain the suit, he leaves the matter where he finds it. He does not even do anything which would make him liable for costs. He simply assents that she carryon the suit herself in her own beha.!f·
· Reported by Joseph P. Hornor, Esq., of the New Orleans bar.