Biloxi City Railroad Co. v. Maloney

• Citation: 21 So. 561,74 Miss. 738
• Court: Mississippi Supreme Court
• Decision Date: 08 March 1897
• Parties: BILOXI CITY RAILROAD CO. v. ELIZABETH C. MALONEY

21 So. 561

74 Miss. 738

BILOXI CITY RAILROAD CO. v. ELIZABETH C. MALONEY

Supreme Court of Mississippi

March 8, 1897

March 1897

FROM the circuit court of Harrison county HON. H. S. TERRAL Judge.

Mrs Maloney, appellee, owned a lot in or near Biloxi, along the rear of which a public road ran, with a passageway from the lot to the highway. The city railroad company, appellant, in the construction of its track, erected a trestle about three feet high and about three feet from appellee's fence which obstructed free passage from the lot to the highway or street. The suit was for damages by appellee against appellant. There was no evidence of wanton conduct, wilful wrong, malice, oppression or insult. The opinion contains a further statement of the facts.

Judgment reversed, new trial granted and cause remanded.

Calhoon & Green, for appellant.

It is manifest that the verdict in this case is for vindictive damages. Such damages should not be allowed. The court will promptly distinguish this from that line of cases applying to injuries from the negligent operation of dangerous agencies, such as steam, or the careless handling of fire or explosives, or those accompanied with insult. No case similar to this can be found where punitive damages were allowed. In every instance of such allowance, there is some evidence of insult, malice, oppression, or a wanton disregard of the rights of others. In order to justify the award of punitive damages, there must be more than a mere disregard of private rights; there must be some evil intent. Wilkinson v. Searcy, 76 Ala. 176; Railroad Co. v. Hoeflitch, 62 Md., 301; Railroad Co. v. Sourr, 59 Miss. 456; Railroad Co. v. Purnell, 61 Miss. 652; Forsee v. Railroad Co., 63 Miss. 67; Railroad Co. v. Scanlan, 63 Miss. 413. The cases in the books where vindictive damages are allowed in property matters for wilfulness, show that the term "wilful" is used in the sense of a wanton disregard of the rights of others, and does not include cases where the act proceeded upon belief of a right. Storm v. Green, 51 Miss. 108; Johnson v. Stone, 69 Miss. 826; Railroad Co. v. Green, 52 Miss. 779.

The injury must be done where the tort feasor knows that he is infringing the rights of others, and not in cases where he merely has reason to suppose the existence of those other rights, and not then where there is no appearance of outrage, insult or oppression, but the mere exercise of what is believed to be the right of the party acting. Inman v. Ball, 65 Iowa 543; Dow v. Julien, 32 Kan. 576; Phelps v. Owens, 11 Cal. 22; Warren v. Cole, 15 Mich. 273. Exemplary damages for a tort to property should not be allowed in the absence of insult in the assertion of a supposed right. Detroit v. Dailey, 16 Mich. 447; 1 Suth. on Damages, secs. 393-396, 390-392, 399; Holmnes v. Railroad Co., 94 N. C., 318. If the trouble is easily remedied, the plaintiff cannot recover so much. In the case at bar, the removal of a gate fifty feet would have prevented all inconvenience whatever, and the appellant offered to do this. Shear. & Red. on Neg., secs. 701, 745, 746, 750, and note 1 to sec. 748. All the authorities concur that the question whether the evidence, if true, would warrant vindictive damages, is for the court.

E. J. Bowers and D. B. H. Chaffe, for the appellee.

The erection of a nuisance, specially hurtful to appellee, without warrant of law, and over her express protest, is reckless, wilful and wanton. The court will bear in mind that no warrant is shown by this record for the erection of the trestle or track. The appellant was a wrongdoer acting without authority and with force, over objection. Surely such an act was reckless, wilful and wanton. Wherever there is a "wilful, malicious or reckless tort to person or property, " exemplary damages are recoverable. 1 Sutherland on Damages, sec. 391. "If a wrong is done wilfully--that is, if a tort is committed deliberately, recklessly or by wilful negligence, with a present consciousness of invading another's right--an undoubted case is presented for exemplary damages." 1 Sutherland on Damages, sec. 393, p. 846; Lake Shore Railway v. Rozenzweig, 113 Pa. 519.

OPINION

STOCKDALE, J.

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