Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff appeals from a judgment entered in the Essex County District Court based upon a unanimous jury verdict of no cause of action.
The plaintiff, Lucille Gebhardt, resides in New York and commutes several days a week to Newark, where she is self-employed as an electrologist. She testified to using the defendant's buses from the Pennsylvania Railroad Station to Halsey and Market Streets in the morning and in the reverse direction in the evening. She travels with her one-pound dog, a Chihuahua, carried in a pocket sewn on the shoulders of her summer dresses and, in the winter months, in a pocket sewn on the inside of her coat. She testified, "Instead of wearing a corsage I wear her. She is my little live orchid," and in the summer "I wear her in a vital area that nobody has a right to touch her and she's perfectly safe here." The present controversy arises out of the plaintiff's desire to ride the defendant's buses accompanied by her Chihuahua.
The complaint is in four counts and sets forth three incidents wherein defendant's bus operators were allegedly guilty of actionable conduct. The fourth count is by the plaintiff's husband, per quod , and was voluntarily dismissed with prejudice by agreement of counsel.
The first count relates to an incident on July 18, 1955 when it is alleged that while she was lawfully a passenger on defendant's bus the driver "in a rude and offensive way * * * informed the plaintiff that she could not ride in the bus, stopped the bus, announced that the bus would not proceed, stated loudly to other passengers that the plaintiff was delaying the bus, summoned police officers, and demanded the arrest of the plaintiff." Although the driver made no
charge against the plaintiff, he requested the other passengers to give him their names, and stated loudly that "no one could tell what a woman like that (the plaintiff) * * * would say or do." It is further asserted that it was the defendant's duty as a common carrier to accord plaintiff "respectful and courteous treatment and protection against insults, indignities and abuse" by its employees, and that as a result of a violation of this duty she suffered delay, mental anguish, embarrassment and humiliation.
The second count recites an incident on February 2, 1956, when the plaintiff was a passenger in defendant's bus going from the Pennsylvania Station to Halsey Street. She was about to leave the bus and the defendant's driver, in a "loud, rude and offensive tone and manner, told plaintiff that he had previously told her that she could not ride on his bus, and never to board his bus again." There was, however, no allegation of any refusal to accept plaintiff as a passenger on that trip or refusal to transport her to her destination. The gist of the count was merely the driver's remonstrations against the plaintiff. A dismissal of this count was entered by consent of counsel at the conclusion of the plaintiff's case.
The third count relates an incident of February 8, 1956, when the plaintiff tried to board one of defendant's buses but the driver, without just cause, "refused to receive the plaintiff as a passenger, made an offensive gesture in her direction, laughed at her, and closed the door, almost striking the plaintiff's person," and the bus left her standing in the street, when the oncoming traffic frightened her.
At the trial the plaintiff was her sole witness as to the several incidents and she testified substantially in accord with the complaint.
Relative to the first incident on July 18, 1955, she testified that carrying her Chihuahua in a pocket container sewn to her garment, she boarded the defendant's bus. The driver did not notice the dog until after she was on the bus but before she had paid her fare. He then said he "wouldn't drive dogs around" and brought the bus to a stop at the curb, requesting the other passengers to "pile
out." He said she was selfish and he called a police officer. After a discussion with the officer he told the passengers to "pile in." He asked them to sign a card as "you can't tell what a woman like that will say or do" and finally the bus proceeded to the Pennsylvania Station. She told him to take her fare, ...