Fordyce v. Nix

• Citation: 23 S.W. 967
• Parties: FORDYCE et al. v. NIX.
• Decision Date: 28 October 1893
• Court: Supreme Court of Arkansas

23 S.W. 967

FORDYCE et al. v. NIX.

Supreme Court of Arkansas.

October 28, 1893.

Appeal from circuit court, Columbia county; Charles W. Smith, Judge.

Action by James M. Nix against Fordyce & Swanson, receivers of the St. Louis, Arkansas & Texas Railroad, to recover for injuries sustained through misconduct of defendants' servant. There was judgment for plaintiff, and defendants appeal. Affirmed.

The other facts fully appear in the following statement by WOOD, J.:

Appellee filed his complaint for damages, alleging that he, wife, and two daughters, left Detroit, Tex., to visit relatives and friends at Buckner, Ark., a regular stopping point on appellants' railroad; that they were passengers, having purchased tickets, which conductor received on train; that the company, disregarding its contract of carriage, refused and failed to stop at Buckner, their destination; that appellee requested conductor, half mile beyond the station, to back up train, and allow them to debark, which he refused to do, using profane and insulting language in the presence of appellee and family; that conductor was rough and insulting from time they passed Buckner to Waldo, where they got off; that, by violation of their contract and the insults, outrages, and mistreatment, he had been damaged $2,500. Appellants demurred for misjoinder, which being overruled, they saved exceptions and answered, denying every allegation except contract of carriage, and charged appellee with contributory negligence. Verdict and judgment for $1,000. Appeal duly prosecuted.

Bunn & Gaughan and Sam H. West, for appellants. Thornton & Smead, for appellee.

WOOD, J., (after stating the facts.)

The contract of carriage, its willful breach, and the insult and injury resultant, damnifying appellee, as he claims, in the sum of $2,500, as set forth in the complaint, we hold, constituted a tort. Under the reformed procedure, courts regard the substance, rather than the form. "Substantia prior et dignior est forma." As was said by the supreme court of Mississippi in a very similar case: "The character of the action must be determined by the nature of the grievances, rather than the form of the declaration." Railroad Co. v. Hurst, 36 Miss. 660. But, measured by the most technical rules of pleading, the complaint contains all the necessary allegations for an action ex delicto. Such was evidently the intention of complainant. The facts warranted it, and we so treat it. It follows, considering appellants' demurrer as a motion to strike, which is the proper practice, (Mansf. Dig. §§ 5016, 5017; Organ v. Railroad Co., 51 Ark. 261, 11 S. W. Rep. 96; Riley v. Norman, 39 Ark. 158; Terry v. Rosell, 32 Ark. 495,) that it was properly overruled.

Was the verdict excessive? Since the trial judge, who saw and heard the witnesses, has refused to disturb it, this court, according to a rule long ago established, and supported by the great weight of authority, will not interpose, unless the amount is so flagrantly unjust or unreasonable as to indicate passion, prejudice, corruption, or a failure to appreciate the law and facts presented. Sexton v. Brock, 15 Ark. 345; McClintock v. Lary, 23 Ark. 215; Bright v. Bostick, 27 Ark. 55; Trieber v. Andrews, 31 Ark. 163; Kelly v. McDonald, 39 Ark. 387; Railway Co. v. Eddy, 42 Ark. 527; Suth. Dam. § 953; Sedg. Dam. § 388. It was peculiarly the province of the jury to weigh the evidence, and gather from the conflict the true state of facts. Viewing the evidence in the strongest light for appellee, (Railway Co. v. Davis, 56 Ark. 51, 19 S. W. Rep. 107,) the jury might have concluded that appellants' train did not stop at all at Buckner; that the name of the station was not called; that the brakeman was asleep, and the conductor intoxicated; that the conductor used profane and insulting language to appellee in the presence of ladies and others; that his conduct almost precipitated a fight, and would have done so but for the interference of a passenger; that, when importuned to go back and let appellee and family off at their destination, he was very rough and insulting; that appellee was quiet and peaceable, his "conduct being that of a gentleman." Railroad companies, as common carriers of passengers, are authorized, and it is their duty, "to do all acts and things necessary to protect passengers from all acts of fraud,...