Atchison, T. & S. F. R. Co. v. McGinnis

• Decision Date: 11 April 1891
• Citation: 46 Kan. 109,26 P. 453
• Parties: ATCHISON, T. & S. F. R. CO. v. McGINNIS.
• Court: Kansas Supreme Court

26 P. 453

46 Kan. 109

ATCHISON, T. & S. F. R. CO. v. McGINNIS.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. In an action to recover damages for personal injuries, the negligence established must be wanton, willful, or malicious to justify punitive or exemplary damages.

2. Where there is no testimony showing that the negligence is so gross as to amount to wantonness, and no willful or malicious acts are proven, actual or compensatory damages, merely, is the rule.

3. It is error to leave the question of punitive or exemplary damages to the jury, when there is no testimony to warrant a verdict for such damages.

4. In an action by a married woman, living with her husband, to recover damages for personal injuries, she cannot recover for “lost time,” for “medical attendance,” nor for “impaired capacity to labor.” Her services belong to her husband, and he must furnish her with medical attention; hence he alone suffers pecuniary damages because of “loss of time,” “medical attention,” and “impaired capacity to labor” of the wife, and the action for such damages must be in his name.

Commissioners’ decision. Error from district court, Barton county; AMANSEL R. CLARK, Judge.

MGeo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

Diffenbacher & Banta, for defendant in error.

OPINION

STRANG, C.

October 12, 1886, Jane McGinnis, desiring to go from Great Bend, in Barton county, to the town of Chase, in Rice county, purchased a ticket at the former for the latter place. She rode on the early passenger train from Great Bend to Ellinwood, where she had to change from the main line of plaintiff’s railroad to the M. & M. branch of the same. At Ellinwood she got on the way-car of a freight train which carried passengers. The train, which consisted of 14 freight-cars and the way-car, left Ellinwood early in the morning, just as day was breaking. It ran out from the station to the switch which connects the main line with the branch, some half or three-quarters of a mile from the station, where, by reason of the switch having been left open, the engine, tender, and two cars ran off the track. Mrs. McGinnis was sitting on the seat against the side of the car. The sudden stopping of the train threw her from her seat across the car, and down upon the floor. When she got up it was found that her ear was somewhat bruised and scratched, but no other injuries were visible. She walked over to the town, and remained until evening, and then took the passenger train for Chase, where she got into a wagon, and rode into the country a short distance, and remained all night, going back on the train in the morning to Great Bend. Just after the accident, and before Mrs. McGinnis left the car, she was asked if she was hurt, and she said not seriously. Some weeks after the accident she called a physician, and claimed to be injured in the spine, shoulder, breast, eye, and arm. The physician examined her, and found no visible evidence of injury at any of these points. She, however, claimed to be injured, and the doctor said there was some evidence from the pulse and the appearance of her tongue of some disturbance of the system, but he could not tell what it was, nor what produced it, only as he got the cause from Mrs. McGinnis. August 13, 1887, she brought her suit against the plaintiff company for damages. It was tried by the court and a jury, resulting in both a general and a special verdict for the plaintiff below. A motion was made by the defendant below to set aside the general verdict, which was for $2,000, because it did not correspond with the special verdict; which motion was sustained. A motion was then made by the defendant below for a new trial, and one by the plaintiff below for a judgment on the special verdict. The motion for a new trial was overruled: and after the plaintiff had remitted $235, and the court had stricken out $765, the motion for judgment was sustained, and judgment entered for $1,000. The company brings the case here for review.

In view of the remittitur made by the plaintiff below, the first alleged error we will notice is the action of the court in giving the instruction complained of. The seventh instruction, complained of, reads as follows: "The jury are instructed that the petition alleges that the defendant not regarding its duty, conducted itself so carelessly, negligently, and unskillfully that the train upon which plaintiff was riding ran off the track, whereby and by reason of which the plaintiff was injured. It is the law that in actions of this kind, if the evidence proves that the complaining party received personal injury, and thereby suffered actual damages, and if the evidence further proves that such injuries and damages were sustained by reason of the gross negligence or gross carelessness of the defendant in operating its train, then the jury are not limited in their finding to the mere compensation for the actual damages sustained, but they may give in addition a further sum as exemplary or punitive damages as a salutary...