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be taken by the defendants would have been verdict for plaintiff, which was affirmed by
disclosed and, we must assume, frustrated in the Court of Civil Appeals, and the Railroad
the juvenile court. The presumption that company appeals. Affirmed on condition
that court would give a fair hearing in the that remittitur be filed; otherwise reversed
case and decide justly is equally as strong and remanded for new trial.
as the presumption that a court of equity

W. H. Washington, of Nashville, and J. C. would do so. The chancery court should not Voorhies, of Columbia, for Shelton and anbe burdened with the consideration and dis- other. Wright, Miles, Warring & Walker position of such cases by a resort to the in- and W. H. Borsje, all of Memphis, for Railjunctive process of that court. No grounds

road Co.
for equitable relief in the proper sense are
presented. The Sailors v. Woelfle 118 Tenn.

WILLIAMS, J. Mrs. Shelton brought this 755, 102 S. W. 1109, 12 L. R. A. (N. S.) 881; suit to recover damages, alleging that, while 22 Cyc. 880.

she was a passenger on defendant's railway Should the complainants or their child fail between Memphis, Tenn., and Little Rock, to get justice in the juvenile court, they have Ark., the defendant failed to provide sepa right to have the judgment of that court arate dining cars or a partitioned dining reviewed in the circuit court by proper pro- car as required, it was claimed, by an Arcedure to that end; thence an appeal may be kansas statute, which provides for the sepprosecuted to the appellate courts.

arate accommodation of the white and negro Writ of certiorari granted; the decree of races. It was further alleged that the plainthe Court of Civil Appeals reversed, and that tiff as passenger was brought into involunof the chancellor affirmed.

tary association with members of the colored race by reason of the negligence of the railway company.

It appears that plaintiff, her husband and SHELTON et al. v. CHICAGO, R. I. & P. two sisters were passengers from Memphis R. CO.

to Little Rock, and that a waiter from the (Supreme Court of Tennessee. March 9, 1918.) dining car passed through the sleeper occu1. RAILROADS Ow226_SEPARATE ACCOMMODA- pied by plaintiff's party announcing a call TIONS FOR RACES-STATUTES-CONSTRUCTION. to luncheon. Mr. Shelton was indisposed

The statute of Arkansas (Kirby's Dig: $ and did not desire food, but the three ladies 6622-6625), requiring separate accommodations in certain cars for the use of white and African immediately proceeded to the diner in repassengers, does not require a dining car to be sponse to the call. It appears that this was partitioned with wood, nor that two separate probably the third and last call, and when dining cars be provided. 2. STATUTES 174, 175—CONSTRUCTION.

the ladies entered the dining car only a few A statute, when possible, should be given a

white passengers remained at table, and construction making it sensible, without manifest these must have finished their meals at once. inconvenience, so serious as to work injustice. Mrs. Shelton, after writing out and handing 3. RAILROADS On 226 SEPARATE ACCOMMO- in the meal order, glanced up and noticed two DATIONS FOR RACES.

Arkansas statutes (Kirby's Dig. 88 6622-flasbily dressed negro women enter the din6625), as to separate accommodations for white er. They were shown seats, and were about and African passengers, are not applicable to to be served at the table in front of and and do not prohibit a rule of the carrier by next to the one occupied by plaintiff and her which white persons are served in its dining car on a train at one hour of the day and the sisters. The white ladies entered into a disnegroes at another, without providing separate cussion as to what they should do. About dining coaches.

this time negro porters seated themselves 4. RAILROADS C253SEPARATE ACCOMMODA- and began to eat at the table next to that of TIONS FOR RACES. A railroad which maintained a dining car,

the party in their rear, whereupon the ladies intending to serve white and negro passengers started from the car. The two sisters were at different hours, according to a rule promulgat- in front and passed out of the dining car ed by it, was liable to a white passenger, for door, but Mrs. Shelton was stopped by the its negligence in making a call to the dining car for wbite persons at the time when negroes were steward, who barred the way by holding the about to be served.

door of exit. He remarked to plaintiff: 5. RAILROADS Om 253 — EXCESSIVE DAMAGES. “Those ladies (referring to the colored wo

Where a railroad permitted negroes to be men) were in here when you came in.” Mrs. served while white passengers were in the din, Shelton, pushing his hand from the doorknob left the car and the steward insisted in the got past the steward who, however, followed hearing of others that she pay for the meal or- her into an intervening sleeping car next to dered, a verdict of $750 was excessive and the diner, and in a manner described as inshould be reduced to $250.

sulting demanded that the food ordered be Appeal from Circuit Court, Davidson paid for, in the presence and hearing of County; A. G. Rutherford, Judge.

other passengers in that Pullman. Plaintiff Action by Mrs. Mattie Shelton and an- passed on to the sleeper where her husband other against the Chicago, Rock Island & and sisters were. The steward still followed Pacific Railroad Company. Judgment on her, and offered to serve the order there, but

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


repeated his statement: "Those colored la-, were at the time in general use; and it is dies were in there when you came in, but I observe that no partition into separate could not help that.” This was resented by sections of those particular cars is stipulatMr. Shelton who had seen the colored wo-ed; but to the contrary such, it is provided, men pass through his sleeper going towards may be hauled for the exclusive use (in its the dining car some minutes after the women , entirety) of either race, separately but not of his party bad gone to luncheon. After jointly. Statutes of later date passed in some heated words were passed the steward other states do deal with the modern dining withdrew.

car. Thus, in the Oklahoma statute, passed Plaintiff was awarded judgment upon a December 18, 1907, dining cars are mentioned verdict for $750, which has been sustained in connection with sleeping cars and chair by the Court of Civil Appeals. The railway cars, “to be used exclusively by either white company has appealed, and insists that there or negro passengers, separately but not jointis no liability; that if there be liability, ly.” Laws 1907–08, Okl. c. 15, $ 7. nominal damages only should be allowed, We are of opinion that the Arkansas statand that in any event the verdict was ex- ute did not undertake to prescribe that din. cessive.

ing cars should be divided into two compartThe Arkansas statute relied on appears as ments or sections by wooden partitions. Secsections 6622 et seq. of Kirby's Digest, as tion 6622 refers to a passenger day coach, follows:

in which, but for the separation made inSec. 6622. All railway companies carrying cumbent on common carriers, the two races passengers in this state shall provide equal but would be thrown together during a journey. separate and sufficient accommodations for the That separation might be by way of provid. white and African races by providing two or

passenger coaches for each passenger ing two passenger coaches, one for each train ; provided, each railway company carrying race, or "one partitioned car." Sleeping passengers in this state may carry one partitioned car, one end of which may be used by white cars, as said, are dealt with in a distinct passengers and the other end by passengers of manner; dining cars not at all. the African race, said partition to be made of

[1] We, therefore, are of opinion that the wood, and they shall also provide separate wait- | lower courts were incorrect in holding that ing rooms of equal and sufficient accommoda- the defendant company's dining car was govtions for the two races, at all their passenger erned by the statute and required to be partidepots in this state.

"Sec. 6623. The foregoing section shall not ap- tioned, the partition to be of wood, or two ply to street railroads. In the event of the dis- separate dining cars provided. abling of a passenger coach, or coaches, by acci

The construction of the statute contended dent or otherwise, said company shall be relieved from the operation of this act until its [his] for by plaintiff might be so onerous on railtrain reaches à point at which it has additional way companies as to lead to consequences coaches.

not desirable for either race, the abandon"Sec. 6624. No person or persons shall be per- ment of dining cars in certain trains, and on mitted to occupy seats in coaches, or, waiting those railroads which would not be justified in rooms, other than the ones assigned then account of the race to which they belong; pro- going to the expense of maintaining separate vided, officers in charge of prisoners of different diners, and find it impracticable to partition races may be assigned with their prisoners to coaches where they will least interfere with one of them. In this case a full-length dining the comfort of other passengers; provided fur- , car was not operated-only one-half of a car ther, that Sec. 6622 shall not apply to employés was found necessary for and devoted to bufof a train, in the discharge of their duties, nor shall it be construed to apply to such freight the bounds of reason to subdivide this space

fet service and it would be quite out of trains as carry passengers.

“Sec. 6625. Carriers may haul sleeping or into two compartments, as a practical propchair cars for the exclusive use of either the osition. white or African race, separately, but not jointly."

[2] A statute, when possible, should not be

given a construction that would make it We have in this state a separate coach not sensible, or that would lead to manifest statute which is quite similar to the one inconvenience, so serious as to work injusabove quoted. Act 1891, c. 52; Thomp. Shan. tice. Maxey v. Powers, 117 Tenn. 381, 101 Code, $ 3074 et seq., but it does not appear S. W. 181; Hall v. State, 124 Tenn. 235, 137 that, either in Arkansas or in this state, the S. W. 500. statute has been construed in respect of its When, therefore, dining cars were introapplication to a dining car carried as a part duced they were the subjects of regulation by of a train for the accommodation of passen- the railway companies as to the use to be gers. We have not been cited, and we have made of them by passengers of the white and not found, any reported case in other juris- negro races, under common-law power to that dictions which treats of that phase of sep- end. arate coach laws.

[3] It appears, however, that the defendEvidently the Arkansas statute, like our ant railway company had established a rule own, was passed before dining cars were for the purpose of providing equal, but sepabrought into use. The statute to be constru. rate and sufficient accommodation in its dined does specifically mention in section ing cars for the two races. The partition it 6625 sleeping cars and chair cars, which made of the car for use was by hours during


which members of the respective races might see Chesapeake, etc., R. Co. 7. Wells, 85 resort to the dining car for food. It seems to Tenn. 613, 4 S. W. 5. us that this rule was not only reasonable, but And in the Chiles Case, on writ of error, that it was a wise and fair one, and perhaps the Supreme Court of the United States held the best that in the circumstances could be that this was true even as to interstate pasadopted to serve the same ends the Legisla- sengers, where there is congressional inactures had in mind when they enacted laws tion in that regard. 218 U. S. 71, 30 Sup. in relation to separation of the races in pas-Ot. 667, 54 L. Ed. 936, 20 Ann. Cas. 980 and senger coaches. The rule of the railway com- note. pany in operation was that white passengers [4] We hold that a recovery by the plainwere served first; three separate meal calls tiff in the pending case must be unheld on the were made in the day coaches and sleepers ground that the evidence shows liability on for the white passengers. If there were any the part of the railway company, under the negro passengers desiring the meal, they above rule, in that there was negligence in were not served until the lapse of a reason the making of the call for white passengers able time following the making of the last to go into the dining car for luncheon at a call when there was no probability of other time when negro passengers and train emwhite passengers coming into the car for ployés were about to be or were being served. service. In our opinion we should not read Plaintiff's proof is that she went to the dininto the statute anything that would preventing car immediately after a call to luncheon such a just regulation by the carrier, unless had been cried in her car. The dining car compelled to do so. The rule admits of rail- steward was negligent in not stopping her way trains maintaining schedules that are not and explaining the error if the call had in slowed down by stops for roadside meals, fact been made by mistake, in permitting the and it does not lead to denial of meals to situation to grow more involved in the cirmembers of either race, or to unreasonable cumstances shown and in his later treatment inconveniences.

of Mrs. Shelton when he barred her passage A state Legislature may very wisely deem and followed her into the sleeping car, as regulation of dining cars by rules of the car- set out above. rier, rather than by statute, advisable.

[5] But the court is of opinion that the The right of a carrier, at common law, to verdict was excessive, and that $250 is a make reasonable rules for the separation proper allowance under the conditions apof passengers belonging to different races, ob- pearing. A remittitur of $500 is suggested; serving the condition of equality of accommo- and in event it is accepted, an affirmance dations, has often been sustained by the of the judgment below is ordered. On restate courts. Chiles v. Chesapeake, etc., fusal, a reversal and remand for a new trial R. Co., 125 Ky. 299, 101 S. W. 386, 11 L. R. A. results. Costs of the appeal will abide the (N. S.) 268, and cases collected in note; and event.


CITY OF ST. LOUIS V. VAUGHN. DAVIS et al. v. DAWSON et al. (No. 16781.) (No. 19077.)

(Supreme Court of Missouri, En Banc. Feb. (Supreme Court of Missouri, Division No. 1.

2, 1918. Rehearing Denied March 4, 1918.)


COURT BELOW. Where a city sued to recover a fine for

In action to quiet title, where defendants violation of an ordinance, and the defendant ap- I did not rely on presumption of execution to pealed to the Supreme Court without printing them of deed from the record owner, such claim an abstract of record, as required by rules 12, could not be considered on appeal. 13, and 14 (186 S. W. vii, vii), applicable to 2. APPEAL AND ERROR 846(2)-REVIEW. civil actions, the appeal must be dismissed.

When a prima facie case is made by plain

tiffs, and no instructions are asked or given, the Appeal from St. Louis Court of Criminal appellate court will not review the evidence for Correction.

the purpose of determining its sufficiency to

overthrow plaintiffs' case. Action by the City of St. Louis against 3. ADVERSE POSSESSION Om4942, New, vol. 6 Daniel R. Vaughn for violation of a city ordi- Key-No. Series-BURDEN OF PROOF. Judgment for the City, and defend- tablish a prima facie case by showing record ti

In action to quiet title, where plaintiffs esant appeals. Appeal dismissed.

tle, defendants, to prevail under the 30-year Chas. P. Johnson and C. Orrick Bishop, must prove that for 30 consecutive years plain

statute of limitations (Rev. St. 1909, § 1881), both of St. Louis, for appellant. Charles H. tiff, or some one under whom he might claim, Daues and H. A. Hamilton, both of St. Louis, had no possession, had paid no taxes on the for respondent.

land, had failed to bring suit within one year thereafter, and that defendants are in possession.

4. ADVERSE POSSESSION 97 PossESSION GRAVES, J. In this case the city of St. WITHOUT COLOR OF TITLE. Louis complained against the defendant, Possession without color of title is confined Daniel R. Vaughn, for a violation of Ordi- to the part actually occupied. nance No. 27113 of said city, approved July


CIRCUMSTANTIAL EVIDENCE. 14, 1913. The city sought to recover of de

Where, in action to quiet title, defendants tendant the sum of $500 as a fine. Judgment claimed under the 30-year statute of limitations for the city, and defendant has appealed. (Rev. St. 1909, 8 1881), they could prove nonIt is suggested in the brief of the respond- evidence, and were not limited to direct evi.

payment of taxes by plaintiffs by circumstantial ent (city of St. Louis) that appellant has nei- dence. ther filed nor served a printed abstract of the 6. EVIDENCE Ow332(8)–Court RECORDS. record in this case, notwithstanding our rules

The minute or docket entry of the county

court, reciting that on a certain date a widow 12, 13, and 14 (186 S. W. vii, viii), requiring tiled renunciation of the provisions of the will of the same. This suggestion is well taken. We her deceased husband, was admissible, in suit by find no printed abstract of the record on file children of her and her husband to quiet title to in the case. For the appellant we find land owned by her husband, to show that a

paper purporting to be her renunciation was “Appellant's Statement, Brief, and Argu- filed on such date; the county court being the ment,” and no other printed document in his proper court in which to file renunciation. behalf. In the early case of City of Kapsas 7. EVIDENCE @ 207(1), 265(7). COURT REC

ORDS City v. Clark, 68 Mo. loc. cit. 590, it was held


WEIGHT. that a proceeding of the kind involved here

An entry of record in the proper court, rewas a civil suit. To like effect was the ruling citing that a widow filed renunciation of the in St. Louis v. Weitzel, 130 Mo. loc. cit. 612, provisions of the will of her deceased husband,

was, as her admission, admissible against her 31 S. W. 1048, whereas Sherwood, J., said:

children, as plaintiffs in suit to quiet title to “And first as to the sufficiency of the com- land owned by her deceased husband, and sufplaint; in regard to which it may be observed ficient to show prima facie she renounced the that we have always held that a prosecution will. under a city ordinance is but a civil action, 8. EVIDENCE 82-PRESUMPTIONS. and hence the sufficiency of the complaint there- Where court entry, reciting widow's filing in is to be determined by the same rules as are of renunciation of provisions of her husband's dominant in other civil cases. Kansas City v. will, was made 48 years before suit was brought, Clark, 68 Mo. 588; Ex parto Hollowedell, 74 in which plaintiffs disputed the regularity and Mo. 395."

validity of such renunciation, and plaintifiř's po

sition was inconsistent with their claim of inIf this were a criminal case, this division validity of such renunciation, it would be preof the court would have no jurisdiction. Our sumed that in filing the renunciation the regu

lar and natural order of business was observed. jurisdiction is dependent upon the fact that the suit is a civil action. Being a civil ac- Appeal from Circuit Court, Butler County; tion our rules 12, 13, and 14, with reference J. C. Sheppard, Judge. to printed abstract of record, apply.

Action by Carrie D. Davis and others
The appeal should be dismissed for failure against William Dawson and others. From
to comply with the rules. It is so ordered the judgment, both parties appeal. Affirmed.
All concur, except BOND, P. J., absent.

See, also, 201 S. W. 528.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


John A. Hope, of St. Louis, Leslie C. Green, , town of New Madrid. The mother died in of Poplar Bluff, and Ernest A. Green and August, 1856, and soon thereafter Thomas James A. Seddon, both of St. Louis, for H. Dawson moved from the old homestead plaintiffs. James R. Brewer, of New Ma- to the land in question, and his brother drid, “and Wilson Cramer, of Jackson, for George W. moved into the old homestead and defendants.

continued to reside there until his death in

1862. Although George W. Dawson obtainMAYER, Special Judge. Plaintiffs are the ed title to the Netherton tract in 1857 under three daughters and the son of George W. the sheriff's deed heretofore referred to, so Dawson. On August 26, 1909, they brought that he then held title to all of the land, he this suit in the circuit court of New Madrid never took possession of any of it, and for county, making the four sons and the daugh- more than two years Thomas H. Dawson ter of Thomas H. Dawson defendants, for continued to reside in the house which he the purpose of determining and quieting the had built on the Miller tract, continued his title to 579 acres of land lying in said coun- clearing and the operation of a sawmill and ty. On change of venue the cause was trans- woodyard on the Netherton tract, from which ferred to Butler county, where on May 3, woodyard he sold cordwood to the steam1911, judgment was rendered.

boats plying the Mississippi river. In 1859, George W. Dawson and Thomas H. Daw- being driven away by the overflow of the son were brothers. Prior to 1857 and until river, he moved to New Madrid where he retheir death, they resided in New Madrid mained until his death. county, where all of the plaintiffs and all of All of the land was and is subject to overthe defendants were born, and where all of flow, the water covering it to a depth of from them continue to reside. The land in con- 5 to 15 feet, frequently standing thereon for troversy is located on the Mississippi river several weeks. There were few successive and is near the town of New Madrid, in years from 1856 until the trial that the land which town, or in the vicinity of which, all did not overflow. While he resided on the of the parties to this suit have spent their land in controversy, Thomas H. Dawson lives. The land lies together, but is referred stated to friends that he had gone there to to in the record as the Netherton tract, con- make his permanent home. After moving taining 419 acres, and the Miller tract of back to New Madrid, he continued to speak 160 acres. Title to all of the land emanated of the land as his, and there is no testimony from the United States government more that any other person laid any claim to it than 30 years before the filing of this suit. until within a few years before this suit was

In 1847 Thomas H. Dawson became the brought. Soon after Thomas H. Dawson record owner of the Netherton tract. On moved to New Madrid, the house which had April 20, 1857, the Netherton tract was sold been built on the Miller tract was torn down under execution and conveyed by sheriff's and moved away, but at some time later a deed to George W. Dawson, who on August house was built on the Netherton tract by 7, 1856, had obtained title to the Miller tract him, or by some of his sons for him, and by conveyance from one Miller, the then that house was on the Netherton tract at the record owner. On November 5, 1856, George time of the trial. W. Dawson conveyed the Miller tract to Hen From 1857 until the trial, Thomas H. ry Clay Watson, who on April 7, 1857, re- Dawson or some of his sons, on occasions, conveyed that tract to George W. Dawson. sold timber off the land; at intervals they Thus the record title to all of the land came had tenants there who cultivated a small to George W. Dawson, and in him it remain- portion of the Miller tract on shares; piling, ed until his death in 1862, when it vested in staves, and sawlogs were sold from time to these plaintiffs, his children, who still re- time off of the Netherton tract. Because of tain it.

the frequency with which the land overflowThe defendants, laying no claim to paper ed, it was impossible to cultivate any of it title, pleaded, by amended answer (1) the continuously, but various tenants were put 10-year statute of limitations, and (2) such on the place to clear it, to cut cordwood and facts as to give them title acquired by virtue sawlogs, and to raise stock. Thomas H. of the 30-year statute of limitations.

Dawson had all of the land surveyed in the From the evidence we adduce that Thomas '80's in order that he might determine whethH. Dawson, who died in 1906, moved onto the er or not those cutting timber about the land in controversy in the early fall of 1856, land were encroaching upon it. and, although the record title to the Miller It is certain that at least some of the plaintract was then in his brother, George W. tiffs did not know that plaintiffs ever had any Dawson, or for a short time in Henry Clay interest upon which to base a claim to the Watson, Thomas H. Dawson set about clear- land until Mr. Lee Hunter tried to buy the ing a part of that tract, built a house there interest of Clay Dawson, one of the plaintiffs, on, and erected a sawmill on the Netherton which was very shortly before this suit was tract. Prior to moving onto this land, Thom- brought. If the mother of plaintiffs, who had as H. Dawson had lived with his mother on remarried in 1867, had any knowledge of their the old Dawson homestead in or near the interest in the land, it is certain that she had

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