NANTZ v. HURST.

(Court of Appeals of Kentucky. Oct. 26, 1915.) USURY 32 LOAN OR FORBEARANCE OF MONEY.

Giving a note in consideration of a conveyance of land is not a transaction for the loan or forbearance of money, as regards the rate of interest being usurious.

[Ed. Note. For other cases, see Usury, Cent. Dig. §§ 75-77; Dec. Dig. 32.]

Appeal from Circuit Court, Owsley County. Action by H. C. Nantz against T. H. Hurst. From an adverse judgment, plaintiff appeals. Reversed, with directions.

H. C. Eversole, of Annville, for appellant.

E. E. Hogg, of Booneville, for appellee.

ous.

NUNN, J. In this action to recover on a note executed in consideration for a conveyance of land, and to enforce a purchasemoney lien for the payment thereof, the court erred in adjudging that the stipulated interest in excess of 6 per cent. was usuriIn the meaning of the statute it was not a transaction for the loan or forbearance of money. Gruell v. Smalley, 1 Duv. 358; Tousey v. Robinson, 1 Metc. 663; Eddy v. Northup, 23 S. W. 353, 15 Ky. Law Rep. 434; McCann's Ex'r v. Bell, 79 Ky. 113; Watts v. National Building & Loan Ass'n, 102 Ky. 29, 42 S. W. 839, 19 Ky. Law Rep. 1007; Berry v. Walker, 9 B. Mon. 464.

The judgment is reversed, with directions to enter judgment for the amount of the note and interest sued on, and enforce the lien on the land described in the judgment.

LOUISVILLE & N. R. CO. v. BELL.
SAME v. JONES.

(Court of Appeals of Kentucky. Oct. 26, 1915.)
1. CARRIERS 319-CARRIAGE OF PASSEN-
GERS ACTIONS-DAMAGES.

and using profane and obscene language, either to remove her at the next station, or to have road company is liable to other passengers disher arrested; and, in case of failure, the railturbed.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. 284.]

4. CARRIERS 317 - CARRIAGE OF PASSEN

GERS.

Where a drunken passenger by profanity and vulgarity annoyed others, evidence of her conduct after it had been called to the attention of the conductor, or the conductor in the exercise of reasonable care could have discovered it, is admissible in an action for damages.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305;' Dec. Dig. 317.1

5. CARRIERS 319 - CARRIAGE OF PASSENGERS-ACTIONS-DAMAGES.

Where a drunken negress used vile, profane, and obscene language in the presence of such other negresses who complained to the other negresses, an award of $500 in favor of conductor in charge of the passenger train cannot be held excessive, not in itself indicating passion or prejudice.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1338-1345; Dec. Dig.

319.]

Appeal from Circuit Court, Bell County. Separate actions by Pearl Bell and Helen A. Jones against the Louisville & Nashville Railroad Company. From judgment for plaintiffs, defendant appeals. Affirmed in each instance.

Benjamin D. Warfield, of Louisville, and C. W. Metcalf, of Pineville, for appellant. James M. Gilbert, of Pineville, and Charles E. Herd and L. F. De Busk, both of Middlesboro, for appellees.

CARROLL, J. The appellees, Pearl Bell and Helen A. Jones, colored women, brought separate suits against the appellant railroad company to recover damages on account of the misconduct of another colored woman in a coach in which these appellees were riding. The suits were heard and disposed of together in the lower court, and there was a judgment in favor of each of the appellees for $500.

Where a passenger is disturbed by the drunken obscenities of another passenger, she is entitled to such damages as would fairly compensate her for the humiliation, mortification, annoyance, and mental anguish. For cause of action the appellees in their [Ed. Note.-For other cases, see Carriers, petitions charged, in substance, that while Cent. Dig. §§ 1338-1345; Dec. Dig. 319.] they were passengers on a train of the ap2. CARRIERS 284 CARRIAGE OF PASSEN-pellant company a colored woman who was

GENS-DUTY OF CARRIER.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1125, 1127-1135, 1173, 1222; Dec. Dig. 284.]

3. CARRIERS 284 CARRIAGE OF PASSENGERS-DUTY.

A carrier of female passengers impliedly drunk and boisterous was permitted to get on stipulates that he will protect them against the train at Middlesborough and go into the general obscenity and immodest conduct. coach in which they were sitting; that during the time she was in this coach as a passenger she was continually drunk, using vulgar and indecent language, and acting in a very disorderly, obscene manner, all of which occurred in the presence of these appellees; that although the conductor in charge of the train came into the coach in which the appellees and this offensive colored woman were riding soon after the train left Middlesborough, and not only saw that she was drunk and disorderly, but had his attention called to her conduct by some of the passen

In view of Ky. St. § 806, providing for the punishment of any person who while riding on a passenger train shall, to the annoyance of other passengers, use obscene or profane language, or behave in an improper manner, and section 1342b, prohibiting drinking on trains, and providing for the punishment of persons found thereon in an intoxicated condition, it is the duty of a conductor of a railroad train, where he was notified that a negress was drunk

gers, he did not either put the woman off the train, take her out of the coach, or attempt to induce her to cease her offensive misconduct. The answer was a traverse of the averments of the petition.

with her said he would take care of her and see that she kept quiet, and I went on out. Q. Was she using any obscene language while you were in there? A. No, sir; did not hear her use any obscene language. Q. Was she having her person exposed there, or doing anything in

No, sir. Q. Was there anything about her conduct there that led you to believe that she would do anything of that kind while you were out of the car? A Nothing whatever in her conduct that indicated that she was of a violent nature and would insult people, or anything like that. Q. Did you know she was under the influence of liquor by the way she was acting? A. I thought so; seemed to be in a jolly nature. I see that every day, and consequently did not pay much attention."

The evidence on behalf of appellees show-a lascivious way while you were in there? A. ed that Willie Curry, the disorderly woman, boarded the train at Middlesborough, the station at which the appellees took passage; that when she came in this car she was drunk and disorderly and using abusive language, which disorderly conduct and use of obscene language continued until she left the train. Witnesses also described the manner in which this Curry woman acted, and repeated the vulgar and obscene language used by her, which embraced almost every form of obscenity and indecency that a drunken, vile negro woman could be guilty of. The appellee Helen Jones was asked and answered these questions:

of the case he testified that Mrs. Bell called It further appeared that on a former trial his attention to the fact that this woman his attention to the fact that this woman had been acting in an indecent way and using vulgar language, and also that there were 12 stations between the place where the woman got on and where she got off, and that one of these stations was Pineville, the county seat of Bell county, but that he did not take any steps to put the Curry woman off the train at any of these stations, or notify the peace officers at Pineville of her misconduct.

"Q. At the time that Mr. Worsham, the conductor of the train, came in, what was Willie Curry doing, and what was her condition? A. Sitting with her head throwed back and hat throwed off her head, cursing and going on when he was in there. Q. Cursing when Mr. Worsham was in there? A. Yes, sir. Q. How close was Mr. Worsham to her when this cursing was going on? A. Passed right down the aisle. She Steve Gilbert, the colored man to whom was sitting opposite from me-passed between us. Q. Was anything said to Mr. Worsham the conductor referred as the man who told about it? A. Yes, sir; Mrs. Bell called to him. him he would try to keep the woman quiet, Q. Do you know what she said to him? A. said that he did not tell the conductor he No, sir; when she said something to him he said: "There is nothing to her; she is just would keep her quiet, because he knew he drunk.' Q. Who said that? Q. Who said that? A. The conduc- could not do it. tor. Q. What did he do? A. Did not do anything; went out. Q. Did he notice her? A. Looked at her and kinder smiled. Q. He looked at her and smiled; made no effort to put her off? A. No, sir; none at all. Q. Did he make any effort to stop her from cursing? A. No, sir. Q. Say anything to her when she was cursing? Q. Say anything to her when she was cursing? A. Did not say anything to her at all. He started to go to her to get her ticket, and Steve Gilbert said he had her ticket."

Pearl Bell, after testifying in substance the same as Helen Jones, said that when the conductor came into the car shortly after the train left Middlesborough

"he passed me at first. I called him three or four times. Helen Jones pulled his coat, and I told him that that woman was behaving herself very badly. Would like for him to do something, for I would hate to report him. He said, 'She is only drunk; would not do any harm,' and smiled and went out of the coach."

Other witnesses gave, in effect, the same evidence as these two women.

The conductor who was the only witness for the railroad company, in the course of his testimony said:

"All I know about the case is that I was conductor of the train, and immediately after the train left Middlesborough I proceeded with my duties of collecting the tickets, and I found a man in there, a colored man, that had three tickets for two ladies and one for himself. At the time I took up these tickets in the colored car I did not hear any indecent language or see anything out of the ordinary. After I got down the road towards Pineville somewhere, Pearl Bell called my attention to this lady. She said her conduct was unbecoming, or words to that effect, I went back to where the lady was, and started to say something, but there was a man

On this evidence counsel for the railroad

company asked the court to instruct the jury
that if they found for the plaintiffs, the
measure of damage was the price they had
paid for their tickets.
paid for their tickets. But the court refused
to give this instruction, and instructed the
jury:

"If you shall believe from the evidence that at the time the defendant's conductor came into the passenger coach occupied by the plaintiff and the woman Willie Curry, the said Willie Curry was in such a drunken condition and that her conduct, appearance, or condition was such as was reasonably calculated to induce the said conductor to anticipate, or have reasonable grounds to believe, that her talk or conduct in said coach was or would be annoying or disturbing to the plaintiff or other passengers thereon, and that thereafter the said Willie Curry, in the hearing of the passengers in said coach, including the plaintiff, used obscene, vulgar, or indecent language, or exposed her person in an indecent manner in the presence of the plaintiff, and that the plaintiff was damaged thereby, then the law is for the plaintiff and you ought to so find."

And advised them as follows as to the measure of damages:

"If you find for the plaintiff, under the instructions herein, you will find for her such a sum in damages as you may believe from the evidence will fairly and reasonably compensate her for the humiliation, mortification, annoyance, discomfort, and mental pain, if any or either, suffered by her, not to exceed, however, the sum of $3,000, the amount claimed in the petition."

The grounds relied on for reversal are: (1) That the court erred in not instructing

| danger of such insult or injury, if they were apprised, or with proper care could have known of circumstances which indicated that some one would be injured unless the disorderly passenger or stranger were ejected or controlled."

In Louisville & Nashville R. R. Co. v. Bal

lard, 85 Ky. 307, 3 S. W. 530, 9 Ky. Law Rep. 7, 7 Am. St. Rep. 600, the court, in the course of the opinion, in discussing the duty of a carrier to protect passengers, said:

"As to female passengers, the rule goes still farther. Their contract of passage embraces an implied stipulation that the corporation will protect them against general obscenity, immodest conduct, or wanton approach." Illinois Central R. R. Co. v. Winslow, 119 Ky. 877, 84 S. W. 1175, 27 Ky. Law Rep. 329; Illinois R. Co. v. Laloge, 113 Ky. 896, 69 S. W. 795, 24 Ky. Law Rep. 693, 62 L. R. A. 405 Kinney v. L. & N. R. R. Co., 99 Ky. 59, 34 S. W. 1066, 17 Ky. Law Rep. 1405.

These authorities, which are in harmony with the body of the law on this subject, sufficiently illustrate the duty of the carrier to protect passengers from violence, as well as from vulgarity, obscenity, indecency, and annoyance on the part of other passengers, and its liability if it fails to perform this duty; and for the purpose of enabling carriers through their servants to perform with more diligence and effectiveness the duties of care and protection indicated, it is provided in section 1342b, of the Kentucky Statutes,

that:

"980. His passengers have the right to demand of him that a fellow passenger whose indecent and ungentlemanly conduct renders him an object of serious annoyance to them, or whose condition or manner gives reasonable ground for apprehending personal injury from his recklessness or violence, shall be removed or be so guarded or confined that they may be free from the annoyance or the danger. And "1. Any person who shall, in or upon any even without any such demand or suggestion railroad locomotive, passenger coach, interurban from his passengers, it is a duty he owes to car, street car, or in or upon any vehicle comthem, when the circumstances known to him are monly used for the transportation of passengers, such as to create a reasonable apprehension of or in or upon any common carrier, or in or disorderly conduct or a breach of the peace upon about any railroad depot, station, ticket office, his conveyance, which may alarm or endanger waiting room, or platform, drink any intoxicathis passengers, to be vigilant and prompt to ing liquor of any kind; or if any person shall suppress it when it occurs. And if, aware of be drunk or disorderly in or upon any railroad the disturbance, he fail to use all the means in passenger coach, interurban car, street railway, his power to suppress it, he will be liable for or in or upon any vehicle commonly used for any damages which may ensue from it to an in- the transportation of passengers, or in or upon nocent passenger. The passenger, from the time any common carrier, *** such person or he enters his vehicle, has the right to claim the persons shall be deemed to be guilty of a misprotection of the carrier from the insults and demeanor, and upon conviction thereof, shall be violence of others, whether entering it as pas- fined not less than ten * * nor more than sengers or not, and the law exacts from him the fifty dollars, or imprisoned not less than ten nor prompt employment of all the means at his com- more than thirty days, or both so fined and immand to protect the passenger against such out-prisoned in the discretion of the court or jurages, either by quelling the disturbance or by ryg. It shall be the duty of every railroad conthe expulsion of those engaged in it, if neces- "3. ** * sary. In order that such omission may ductor of a steam, interurban or street railway, constitute negligence, there is involved the es- and station, depot, or ticket agent of said railsential element that the carrier or his servants way when he sees any person violating the prohad knowledge, or with proper care could have visions or any of them of section one of this had knowledge, that the wrong was imminent, act, to at once notify the nearest or most conand that he had such knowledge or the op- venient sheriff, constable, town marshal or poportunity to acquire it sufficiently long in ad- liceman, of the county in which the offense is vance of the infliction of the wrong upon the committed, * *and it shall thereupon be passenger to have prevented it with the force the duty of the officer so notified to arrest withat his command." out delay any such person without any other evidence of his guilt."

"982. The contract of carriage as to female passengers embraces an implied stipulation that the carrier will protect them against general obscenity, immodest conduct, or wanton approach. ** But this rule is also subject to the usual exception that the carrier is not liable for assaults on female passengers made under such unusual circumstances that the carrier could not possibly have foreseen them." "984. If a drunken and disorderly man is on the carrier's vehicle, it will not do to say, after a passenger has been subjected to insult or injury, that the carrier's servants did not know or could not have foreseen that the particular individual who was insulted or injured was in

*

*

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It is further provided, in section 806 of the statutes, that:

* he

"If any person whilst riding on a passenger or other train, shall, in the hearing or presence of other passengers, and to their annoyance, usc or utter obscene or profane language, or behave in a boisterous or riotous manner, shall be fined for each offense not less than twenty-five nor more than one hundred dollars, or imprisoned in the county jail not less than ten nor more than fifty days, or both so fined and imprisoned; and it shall be the duty of the conductor in charge of any train upon which

there is a person who has violated the provisions | passengers. He should have either ejected of this section either to put such person off the this woman from the coach at the next statrain, or to give notice of such violation to some tion-and there were several stations bepeace officer at the first stopping place where any such officer may be." tween the place where his attention was called to her condition and conduct and the place at which she left the train—or he should have notified the peace officers at Pineville; but he did neither.

In C. & O. Ry. Co. v. Crank, 128 Ky. 329, 108 S. W. 276, 32 Ky. Law Rep. 1202, 16 L. R. A. (N. S.) 197, Com. v. Marcum, 135 Ky. 1, 122 S. W. 215, 24 L. R. A. (N. S.) 1194, L. & N. R. R. Co. v. Byrley, 152 Ky. 35, 153 S, W. 36, Ann. Cas. 1915B, 240, C. & O. Ry. Co. v. Gatewood, 155 Ky. 102, 159 S. W. 660, and C. & O. Ry. Co. v. Pruitt, 157 Ky. 133, 162 S. W. 781, we have given to these sections of the statutes a liberal construction to promote the purpose of their enactment, which was to protect well behaved and orderly passengers from violence, indignity, or insult at the hands of other passengers, and to place in the power of the carrier adequate means to protect its passengers without subjecting itself to liability if it acts with rea

sonable prudence and discretion.

It is also settled by these authorities, and is pointed out in the instructions given,

that liability does not attach to the carrier for acts of violence, indecency, obscenity, or disorder on the part of a fellow passenger until the conductor, or other railway em

ployés charged with the duty of looking after the safety, care, and comfort of the passengers, know, or have reasonable grounds to believe, that the obnoxious passenger will be guilty of violent, offensive, obscene, or disorderly conduct; or the appearance, manner, or conduct of the offending passenger is calculated to put a reasonably prudent person on notice that he may be guilty

of this character of conduct. The carrier

But when the

[4] It is complained that evidence of this

Curry woman's misconduct after the conductor's attention was called to the situation, and before she left the train, was not adand before she left the train, was not admissible in evidence. What this woman did or said before the attention of the conductor was directed to her, or before, in the exercise of reasonable care, he could have discovered her drunken condition or misconduct, would not have been competent evidence,

unless it was brought to the notice of the conductor, but her misbehavior and misconcondition, or after it could have been discovered by the exercise of reasonable care, Well-behaved passengers are entitled to damwas admissible in aggravation of damages.

duct after his attention was directed to her

ages commensurate with all the indignity count of the misbehavior and misconduct of and humiliation they have suffered on acdisorderly and offensive passengers after the and has failed to take steps to remedy it, carrier has been apprised of the situation and evidence of such indignity and humiliation may be heard by the jury for the purpose of awarding such reasonable damages as the circumstances justify.

[5] It is further said that the verdict is excessive. But relief on this ground must be denied. In cases like this, as in many others, that come before us, there is no way of measuring with reasonable certainty what ought

to be assessed, and so, as we have often said, unless the amount is so excessive as to appear to have been awarded under the influence of passion or prejudice, or is so disproportionate to the injury complained of as to seem at first blush, unreasonable, we do not feel at liberty to interfere with the finding of the jury.

The judgment in each case is affirmed.

does not insure its passengers against the violence or misconduct of their fellow passengers. Its duty and corresponding liability begins when it knows, or has reasonable grounds to believe, that some action upon its part is necessary to protect the passengers in its care from assault or indignity at the hands of other passengers. servants of the carrier discover, or in the exercise of reasonable care could discover, that a passenger is disorderly, or obscene, or is committing acts that may endanger the safety of other passengers, or that are offending the peace and quiet of other pas- BOSWORTH, Auditor, v. STATE UNIVERsengers, it is their duty to take such action as is authorized by the statute to remove from the car the offending passenger, or, if this is not practicable at the time, to take such other steps as may be required for the safety and protection of the other passengers. Applying now these rules to the facts of this case, we find that, although the conductor saw the drunken condition of this Curry woman and had his attention called to her misbehavior, he merely remarked, with a smile, that she was drunk and passed out of the coach. This was not a compliance with the duty of the carrier to the other

SITY et al.

(Court of Appeals of Kentucky. Oct. 27, 1915.) 1. STATUTES 110%-SUBJECTS AND TITLES -PURE FOOD LAW.

1905a), being "An act for preventing the manuThe title to Laws 1908, c. 4 (Ky. St. § facture and sale of adulterated or misbranded foods, drugs, medicines and liquors, and providing penalties for violation thereof," and providment station shall receive $7.50 each for analying by section 11 that the agricultural experisis of food and drugs made by it and for the discharge of other duties in connection therewith, provided the total expense from all sources shall not exceed in any one year $30,000, is void under Const. § 51, providing that no law enacted by the General Assembly shall relate to more

SETTLE, J. The appellee, State Univer-ed by the demurrer and answer, viz.: Is the sity, suing for the benefit of the Kentucky Agricultural Experiment Station, and the latter in its own behalf, by petition filed in the Franklin circuit court against the appellant, H. M. Bosworth, auditor of public accounts of Kentucky, prayed that that officer be required by writ of mandamus to issue his war