October
1911
APPEAL
from the circuit court of Lauderdale county, HON. JOHN L
BUCKLEY, Judge.
Suit by
J. W. Lowry against the Alabama & Vicksburg Railway Company
et al. From a judgment awarding actual and punitive damages
the defendant appeals.
The
appellee took passage over the Illinois Central Railroad at
Grenada, Mississippi via Jackson, and over the
appellant's road, the Alabama & Vicksburg Railway, to
Meridian. He took with him the body of his child, and
purchased a full ticket at Grenada through to Meridian for
the corpse. The agent at Grenada took up the ticket and gave
him a check through to Meridian, and gave the appellee a
duplicate check. At Jackson, appellee changed cars for
Meridian, and the conductor on the Alabama & Vicksburg
Railway declined to accept the check as transportation for
the corpse, but demanded cash fare, which the appellee paid
amounting to two dollars and ninety cents.
The
rules of the Illinois Central Railroad, operating from
Grenada to Jackson, contain the following provision
"One adult first-class ticket must be presented for the
transportation of a corpse, regardless of the age of the
deceased, and a corpse must not be received for shipment
except accompanied by an escort holding proper transportation
to destination. The word 'corpse' must be plainly
written on the face of the local, and on each coupon of
interline ticket. . . . Corpses may be checked to points on
and via the following lines only: [Here follow the names of a
number of railroads, but not the name of the appellant,
Alabama & Vicksburg Railway.] Stamp the escort ticket, or
indorse with pen and ink: 'This ticket will not be
honored for passage unless presented with excess baggage
check Form .' . . . If a corpse is destined to a point on
other lines than those mentioned above, lift the coupons and
check only to the junction point of such lines, instructing
the escort to present duplicate at such point and arrange for
the care of the corpse beyond, in accordance with the rules
of lines over which ticket reads to destination."
The
joint rule of the Alabama & Vicksburg Railway and the
Illinois Central Railroad contains the following provision:
"Rules and regulations. 25. Transportation of Corpses in
Baggage Cars.--A corpse, presented with requisite
certificates issued in conformity with the rules of the
national, state and local boards of health, will be
transported in baggage cars, provided an escort traveling by
the same train accompanies the corpse to its destination.
Such escort will be required to present, for the
transportation of the corpse, one adult first-class ticket
(the contract and each coupon of which must be plainly
stamped 'Corpse,') in addition to the ticket for said
escort. The ticket for the transportation of a corpse must be
either a regular one-way ticket or the return portion of a
round-trick ticket."
One of
the rules of the Alabama & Vicksburg Railway is as follows:
"534. They must not receive a corpse without a
physician's certificate that it is free from contagion.
Must be securely enclosed in a box, accompanied by a
first-class ticket, which must be handed to the conductor.
Must also be accompanied by a passenger. See Form 9393."
The
appellee, who was complainant below, claims that the
conductor was rude and insulting in his manner when refusing
to take the excess baggage check for the corpse, and demanded
the payment of cash fare therefor. This is denied by the
defendant, and it is claimed that the conductor, acting only
within the rules of the company, could not, under said rules,
accept a check, but could accept only a first-class full-fare
ticket.
Appellee
brought suit against the Illinois Central and Alabama &
Vicksburg Railway Companies for two dollars and ninety cents
actual damages and five thousand dollars punitive damages.
The Illinois Central Railroad demurred, and the demurrer was
sustained, and the suit dismissed as to that road. The
appellee recovered a verdict against the appellee for five
hundred dollars, and from a judgment for that amount this
appeal is taken.
The
appellee testified in part as follows: "Q. When he
reached you, Mr. Lowry, just in your own way, tell the jury
all that occurred and how it occurred. A. When he got to me,
why I gave him the regular ticket that I had. Q. That was for
your wife? A. Yes, sir; that was for my wife. I showed him
the check, and the certificate given by the undertaker, and
signed by the physician at Grenada, and also paid two dollars
and ninety cents, my fare. Q. That was your fare? A. That was
my fare. Q. From where? A. From Jackson to Meridian. And he
said that the check couldn't be honored on this road, and
I told him I paid for the corpse through from Grenada to
Meridian, had it checked through, that was the check for it;
and he says, 'Well, see, I can't honor that check at
all.' Says, 'Some roads do one way, and some
another.' And says, 'I can't honor that.' In
my condition, I didn't know what to do. I had my baby in
my arms there, and, being under a strain as I was, I
didn't know what to do. I paid him then. Q. Tell how he
talked. A. He was very abrupt about it, in the way he
demanded it. . . . Q. Tell how he talked (speaking of the
conductor). A. He was very abrupt about it, in the way he
demanded it. He demanded another fare, which was two dollars
and ninety cents. He said a corpse took a regular fare--no
half fares, but a regular fare. Q. Mr. Lowry, tell the court
and jury what Mr. Wilson's manner was at the time he
demanded this additional fare from you. A. It was a very
abrupt manner. Q. What was the tone of his voice? A. Well, he
demanded that I pay another fare, in a very harsh and gruff
manner. I had my baby in my arms, and I didn't know what
would occur if I didn't pay it. Q. Just detail, Mr.
Lowry, everything that occurred there when Mr. Wilson reached
where you were in the car and got the fare. Detail everything
that occurred between you and Mr. Wilson, and everything how
it occurred. A. When he got to me, I gave him the regular
ticket I had from Grenada to Meridian, and paid him two
dollars and ninety cents, and showed him my duplicate check
that I had from Grenada to Meridian for the corpse, and also
this certificate that was given by the undertaker, and he
wouldn't accept the check, said I had to pay another
fare, and that would be a regular fare, not half fare but a
regular fare, for a corpse, and he said it in a very rude way
and manner, and I paid him the two dollars and ninety cents.
I had my baby in my arms, and I paid him the two dollars and
ninety cents rather than to have any further trouble. Q. What
was Mr. Wilson's appearance at the time? Did he appear to
be in a good humor, or was he mad, or how? A. He looked like
he was mad, yes, sir; talked like that way. Q. Did his manner
in which he talked to you about his fare indicate to you that
he was mad? (Objected to and withdrawn.) Q. You say he
appeared to be mad? A. Yes, sir. Q. How was that appearance
indicated? A. By his actions, words, looks--his talk."
On
cross-examination the appellee testified in part as follows
"Q. Mr. Fewell: Mr. Lowry, tell the court and jury what
Mr. Wilson's manner was at the time he demanded this
additional fare from you? A. It was a very abrupt manner. Q.
What was the tone of his voice? A. Well, he demanded that I
should pay another fare, in a very harsh and gruff manner. I
had my baby in my arms, and I didn't know what would
occur if I didn't pay it. Mr. Bozeman: We object to that,
and move to strike it out. That is a mere speculation on the
part of the witness, and not a fact at all. The Court: Go
ahead. (To which action and ruling of the court the defendant
then and there excepted.) Mr. Fewell: How long was he talking
to you, Mr. Lowry? A. It wasn't very long. Q. Can you
approximate it? A. About two or three minutes, I suppose. Q.
You had the baby in your arms? A. Yes, sir. Q. You say, too,
you sat down by somebody else. Who was that? A. Mrs. Harris.
Q. Mrs. Robert Harris, here? A. Yes, sir. Q. When the
conductor came through, you were sitting next to her? A. Yes,
sir. Q. She was sitting next to the window, and you next to
the aisle? A. Yes, sir. Q. Now, Mr. Lowry, when Mr. Wilson
came to you, you say that you gave him the ticket. Now, that
was your wife's ticket, was it? A. Yes, sir. Q. And that
was the ticket that you have identified here as Exhibit A to
your testimony? A. Yes, sir. Q. Now you had no ticket for
yourself, Mr. Lowry from Jackson to Meridian? A. No, sir; I
did not. Q. So Mr. Wilson asked you for the cash fare for
yourself, did he? A. Yes, sir. Q. And you paid him that? A. I
paid him the cash fare. Q. Two dollars and ninety cents? A.
Yes, sir. Q. Up to that time everything was pleasant was it?
A. Well, I suppose so, on the train; but it wasn't with
me. Q. I am not...
