Rauton v. Pullman Co.

• Decision Date: 20 May 1937
• Docket Number: 14487.
• Citation: 191 S.E. 416,183 S.C. 495
• Parties: RAUTON v. PULLMAN CO.
• Court: South Carolina Supreme Court

191 S.E. 416

183 S.C. 495

RAUTON v. PULLMAN CO.

No. 14487.

Supreme Court of South Carolina

May 20, 1937

Appeal from Common Pleas Circuit Court of Greenwood County; M. M Mann, Judge.

Action by Nolan J. Rauton against the Pullman Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for entry of judgment for defendant.

McKay & Manning, of Columbia, and W. D. Tinsley, of Greenwood, for appellant.

W. K Charles, of Greenwood, and Greene & Greene, of Abbeville, for respondent.

FISHBURNE Justice.

The basic statement of the plaintiff's cause of action against the defendant is contained, in part, in the following three paragraphs of the complaint:

"2. That on the 18th day of July, 1935, the plaintiff purchased a railway ticket from The Southern Railway Company from Greenwood, S. C., to Mexico City, D. F., and return, and at the same time and place and for a consideration of Thirty Nine and 30/100 ($39.30) Dollars purchased from the defendant, The Pullman Company, a ticket, No. 713, for accommodations designated as lower berth No. 5 in car No. 578 from Greenville, S. C., to Mexico City, D. F., and return.

3. That the said car No. 578 was especially requested by and assigned by the defendant to convey members of the Lions Club in South Carolina attending the International Convention to be held in Mexico City, D. F., of which plaintiff was a member.

4. That under special arrangements with the defendant it was provided that the said car would remain in Mexico City during the convention, and for extra compensation be occupied by those having accommodations therein, and plaintiff paid to defendant the said extra compensation and occupied the same with the other members of the South Carolina Lions during the convention."

These allegations are admitted by the defendant.

The complaint goes on to allege that one or two days before the return trip was to be made from Mexico City, the plaintiff learned from the Pullman authorities in that city that his berth in the Pullman, lower 5, had been sold to other parties for the return trip; and, over his protest, knowing that all of the lower berths were already engaged, the local agent of the defendant struck out the figure "5" on his ticket, and inserted the figure "3" above it, which indicated another lower berth in the same car, but this berth also was occupied by some one else.

This action was brought against the defendant for the recovery of damages for willfully and negligently breaching its contract, the plaintiff alleging that by reason of its failure to give him the lower berth for the return trip, for which he had paid and contracted, he was forced, over his protest, to occupy an upper berth. He testified that he was made sick, nauseated, and physically indisposed while occupying the upper berth, due to the fact that the train on its route from Mexico City passed through a mountainous country, descended steep grades, and rounded sharp curves, and that the swaying and rocking of the Pullman coach, on account of the mountain curves, was emphasized and accentuated in the upper berth. He also testified that the upper berth was hot, lacked ventilation, and was more restricted in space than the lower berth-all of which contributed to his injury.

The defendant in its answer admits that the lower berth sold to the plaintiff was reissued and reassigned to other parties in Mexico City, but alleges that this mistake occurred because of an unusual situation and confusion created by the number of persons attending the International Convention of Lions, referred to, and the varied arrangements made, pertaining to Pullman accommodations. It pleaded a general denial as to the remaining allegations of the complaint.

The chief issue presented on this appeal arises from the second defense set up by the defendant, wherein it is alleged that the claim of the plaintiff is predicated upon wrongs alleged to have been committed within the Republic of Mexico, under whose laws the plaintiff is not entitled to recover punitive damages against the defendant; and, with reference to actual damages, would be entitled solely to the "damages" and "prejudices" resulting as the direct consequence of the lack of fulfillment of a contract; "damages," under the Mexican Civil Code, being defined to constitute "loss or deterioration in the patrimony through lack of fulfillment of an obligation," and "prejudices" being understood to mean "the deprivation of any licit gain which should have been obtained through the fulfillment of the obligation."

When the case was called for trial in the circuit court in Greenwood county, upon motion of the defendant the plaintiff elected to proceed on a cause of action sounding in tort, and the case was tried upon this theory.

The trial resulted in a verdict for the plaintiff.

The Pullman Company appeals, and excepts to the refusal of the trial judge to direct a verdict in its behalf, on the cause of action for actual damages; the exceptions also challenge the soundness of the trial judge's instructions to the jury in certain particulars.

The appellant contends that under the applicable Mexican law the verdict should have been directed in its favor, and that, under that law, neither punitive nor actual damages in this case could properly be recovered.

When the motion was made, the trial judge held that whatever offense was committed against the plaintiff occurred in Mexico, and that the sections of the Civil Code of the Republic of Mexico, introduced in evidence, governed the case, and that under that law no punitive damages were recoverable. He overruled the motion as to actual damages, and submitted this issue to the jury, under his interpretation of the Mexican law. Another issue on this appeal is that in so doing, he erroneously departed from the Mexican law, and applied the common law of South Carolina as the basis of recovery. The Mexican Civil Code on which this suit relies, as determined by the trial judge, is found in the following sections:

"Article 2104. He who may be obliged to do something and may fail to do that thing or may fail to do it in the manner agreed upon shall be responsible for damages and prejudices in the following terms:

I. If the obligation involves some term, responsibility shall begin from the date on which that term matures.

II. If the obligation involves no specified term, the provisions of the last part of Article 2080 shall be observed.

He who contravenes an obligation not to do something, shall pay damages and prejudices through the sole fact of that contravention."

"Article 2107. The responsibility dealt with in this chapter involves in addition to the return of the thing, or its value, or both, as the case may be, the payment of the 'damages' and an indemnification for the 'losses'.

Article 2108. By damages is understood loss or deterioration in the patrimony through lack of fulfillment of an obligation.

Article 2109. By prejudices is understood deprivation of any licit gain which should have been obtained through the fulfillment of the obligation.

Article 2110. The damages and prejudices must be the immediate and direct consequence of the lack of fulfillment of the obligation, whether already caused or necessarily to be caused."

Before proceeding to the consideration of the merits of this controversy, which involves a number of subsidiary questions, it is deemed best to first state certain well-established principles of law bearing upon this situation, which furnish a pertinent and relevant legal background.

With reference to torts, the well-established rule is that the law of the place where the injury was occasioned or inflicted, governs in respect of the right of action, and the law of the forum in respect to matters pertaining to the remedy only. Northern Pac. R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958; Evey v. Mexican Cent. R. Co. (C.C.A.) 81 F. 294, 38 L.R. A. 387.

In this country the lex loci controls, even though under the lex fori a different result as to tort liability would arise from the facts relied on. Slater v. Mexican Nat. R. Co., 194 U.S. 120, 24 S.Ct. 581, 584, 48 L.Ed. 900; Northern Pac. R. Co. v. Babcock, supra; Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123.

The following principle of law found in Bridger v. Asheville & S. R. Co., 27 S.C. 456, 458, 3 S.E. 860, 13 Am.St.Rep. 653, was quoted with approval in Rosemand v. Southern Railway, 66 S.C. 91, 44 S.E. 574, 575: "'The cause of action arose in North Carolina. The injury was inflicted there, and if the parties had remained in that state, and brought action there, they would have been compelled to stand or fall by the law there. And we cannot see, upon principle, how stepping over the line could give the plaintiff a new and altogether enlarged cause of action-in fact, a cause of action which he did not have before, and therefore could not have enforced in the tribunals having jurisdiction of the matter at its origin.' Sawyer v. Macaulay, 18 S.C. 543; Thornton v. Dean, 19 S.C. 583, 45 Am.Rep. 796."

Unless the alleged wrong was actionable in the jurisdiction in which it was committed, there is no cause of action which can be carried to and asserted in any other jurisdiction. Baltimore & Ohio S.W. R. Co. v. Reed, 158 Ind. 25, 62 N.E. 488, 56 L.R.A. 468, 92 Am.St.Rep. 293. And see the numerous supporting authorities cited in the opinion in this case. Also see Smith v. Southern Ry., 87 S.C. 136, 69 S.E. 18; Dennis v. A. C. L. R. Co., 70 S.C. 254, 49 S.E. 869, 106 Am.St.Rep. 746.

The rule that if the law of the state or jurisdiction where the wrong is committed, when applied to the case, does not give a right of action against the wrongdoer, then no action can be...