Gulf, Mobile & N. R. R. Co. v. Thornberry

Decision Date08 May 1939
Docket Number33677
PartiesGULF, MOBILE & N. R. R. Co. v. THORNBERRY
CourtMississippi Supreme Court

APPEAL from the circuit court of Pontotoc county HON. THOS. H JOHNSTON, Judge.

Action by Mrs. Thelma Thornberry against the Gulf, Mobile & Northern R. R. Company for damages on account of humiliation embarrassment, and mental pain and anguish alleged to have been sustained by plaintiff by reason of certain insulting vulgar, and indecent language used by a drunken passenger in her presence on one of defendant's trains. From an adverse judgment, defendant appeals. Reversed and remanded.

Reversed and remanded.

Fred B Smith, of Ripley, for appellant.

The lower court should have granted the peremptory instruction requested by the appellant. It is our position that the verdict was contrary to the law and the evidence, that it was not sustained by the evidence, that there was no proof indicating gross negligence or wilful neglect of duty on the part of the employees of the appellant, and that no recovery could be had for alleged mental suffering, humiliation, or embarrassment without contemporaneous physical injury, even though the conductor had been negligent in the performance of his duty.

N. O., St. L. & C. R. R. Co. v. Burke, 53 Miss. 200; Royston v. I. C. R. R. Co., 67 Miss. 377; I. C. R. R. Co. v. Minor, 69 Miss. 710; Spinks v. N. O. M. & C. R. R. Co., 106 Miss. 53.

In every case in Mississippi, dealing with a situation where one passenger receives an injury at the hands of another passenger, there has been some physical violence. And although our court rcognizes the fact that there can be circumstances under which there would be liability, they have repeatedly emphasized the fact that such a rule should be circumscribed with strict limitations and that the doctrine should not be extended beyond those limitations. We can hardly conceive of the opening of a greater field of feigned and simulated damage cases, than would be permitted under a holding to the effect that a railroad company would be liable because of mere language used by one passenger to another passenger.

Glennen v. Boston Elevated Ry. Co., 270 Mass. 497, 93 N.E. 700.

A person cannot elect to place themselves in a position of danger, and there remain, without any effort to avoid the danger, and without any complaint to those in authority, and then claim damages for alleged injuries resulting from the danger.

I. C. R. R. Co. v. Minor, 69 Miss. 719.

Damages for humiliation, embarrassment, excitement, or other mental disturbances cannot be recovered on simple negligence where there is no accompanying physical injury. Had the appellee been insulted, humiliated, or excited by some uncalled-for action, language, or conduct on the part of an employee of the railroad company, then we would have had an entirely different situation. But here we have the appellee seeking to recover solely because of the alleged negligence of the conductor, an employee of the appellant, in failing to afford to her the degree of protection from the conduct of a fellow passenger, to which she alleges she was entitled, in other words, an act based on an allegation of simple negligence alone. Yet the damage is sought to be recovered for alleged humiliation, embarrassment, and excitement wholly unaccompanied by any sort of physical injury. The courts have almost uniformly held that no liability exists for actions of negligence causing mental disturbances unaccompanied by contemporaneous physical injuries.

Koontz v. Keller, 3 N. E. (2d) 694; Freedman v. Eastern Mass. St. Ry. Co. v. Fall River Gas Works Co., 12 N. E. (2d) 739; Jones v. Western Union Tel. Co., 233 F. 301; B. & O. R. R. Co. case, 47 Oh. St. 309, 85 N.E. 499, 18 L. R. A. (N. S.) 590; Spade v. Lynn & B. R. R. Co., 168 Mass. 285, 47 N.E. 88; Huston v. Freemansburg, 212 Pa. 548, 61 A. 1022; Southern Express Co. v. Byers, 240 U.S. 612, 60 L.Ed. 827; Herrick v. Evening Express Publishing Co., 120 Me. 138, 113 A. 16.

The action in this case is based on negligence, not on breach of contract. But should the appellee undertake to say, that the appellant contracted to carry her on its train, and breached that contract in failing to afford her proper protection, still the same rule would apply, as the courts have uniformly held that in an action for breach of contract, recovery cannot be had for mental suffering unaccompanied by physical injury.

Smith v. Wilmington & W. R. R. Co., 130 N.C. 304, 41 S.E. 481; Sapington v. A. & W. P. R. R. Co., 127 Ga. 179, 56 S.E. 311; Zabron v. Cunard S. S. Co., 151 Iowa 345, 131 N.W. 18; Hall v. Jackson, 24 Colo.App. 225, 134 P. 151; Beaulieu v. Great Northern Ry. Co., 303 Minn. 47, 114 N.W. 353; Marrone v. Washington Jockey Club, 227 U.S. 633, 57 L.Ed. 679; Buenzle v. Newport Amusement Assn., 29 R. I. 23, 68 A. 721; Darrow v. I. C. R. R. Co., 65 Miss. 17; Western Union Tel. Co. v. Rogers, 68 Miss. 749; Relle v. Western Union Tel. Co., 55 Tex. 308; Pullman Co. v. Kelly, 86 Miss. 87; G. & S. I. R. Co. v. Beard, 129 Miss. 827, 93 So. 357; M. & O. R. R. Co. v. Flannigan, 141 Miss. 7, 105 So. 749; Grenada Bank v. Lester, 126 Miss. 442, 89 So. 3; Western Union Tel. Co. v. Koonce, 112 Miss. 173, 72 So. 893.

The first instruction granted the appellee announced the law as being that a railroad company it liable to a passenger for any insult or abuse received at the hands of a fellow passenger, provided the conductor failed to make such effort as was reasonably "possible" to prevent the injury. This instruction is entirely too broad and is not warranted by the decisions of our court dealing with this class of case.

N. O., St. L. & C. R. R. Co. v. Burke, 53 Miss. 200; Spinks v. N. O. M. & C. R. R. Co., 106 Miss. 53; I. C. R. R. Co. v. Minor, 69 Miss. 710.

The second instruction granted the appellee was entirely too broad in its language and terms, in its opening statement, there unqualified to the effect "that it is the duty of the conductor of a passenger train to preserve order on his train, to protect passengers from insult and injury from their fellow passengers."

The court erred in granting the third instruction for the appellee, by which the jury was told that if it found for the plaintiff, "that in assessing the damages of the plaintiff, if you see fit, you may assess such damages as will compensate the plaintiff for injured feelings, mental anguish, and humiliation as would naturally follow from such insulting remarks and conduct." This instruction tells the jury that if any insulting remarks were made in the presence of the plaintiff that damages "would naturally follow." Instead of the instruction saying that the jury might award damages, if they believed from a preponderance of the evidence that any damages were actually sustained, we have the court telling the jury by a judicial pronouncement that damages "would naturally follow, " if any insulting remarks were made.

Our court has frequently held that an instruction, otherwise correct, might be erroneous where it authorized the awarding of excessive damages.

Gulfport & Miss. Coast Traction Co. v. Keebler, 94 So. 795; A. & V. R. R. Co. v. Dennis, 91 So. 4.

The instruction is likewise erroneous because it authorized the award of unlimited damages for injured feelings, mental anguish, and humiliation, without any qualification whatever relative to the necessity of physical injury before damages for mental anguish could be recovered.

The appellant requested refused Instruction No. 1, which reads as follows: "The court instructs the jury for the defendant that the plaintiff cannot recover damages for mere negligence on the part of the defendant, its agents, or employees, causing the plaintiff to suffer humiliation, embarrassment, fright, or mental anguish, even though same might have resulted in later illness, unless the jury believe from a preponderance of all the evidence that the conduct and negligence of the defendant, its agents, and employees amounted to wilfulness or wantonness."

Then, in refused Instruction No. 2, the appellant asked the court to instruct the jury that no damages could be awarded for humiliation, embarrassment, excitement, nervousness, and mental anguish, unaccompanied by physical suffering, unless the proof revealed that the action of the conductor, caused such mental disturbance was wilful, wanton or malicious. Then, in the third refused instruction asked by the appellant, the same principle of law was requested, and the court was asked to instruct the jury that the appellee could not recover for mental suffering, humiliation, and embarrassment, causing nervousness and excitement, unless the jury believed from the evidence that the agents and employees of the appellant were so negligent in failing to afford protection to the plaintiff, after knowing or having reason to know that the drunk passenger was guilty of offensive and insulting conduct towards her, that their negligence amounted to wilful negligence.

The court refused each of these three instructions, which action constituted very prejudicial error, as we find the court telling the jury, in the appellee's instructions, that it might award the appellee such damages as it saw fit, for the injuries which she would naturally sustain by reason of the insult and her humiliation, and yet, wholly failing to qualify this by any statement of law, to the effect that if there was no personal injury, damages could not be awarded unless the conduct of the conductor in failing to afford her protection amounted to wilful or gross negligence. And we further find the court refusing to instruct the jury as to this most important principle of law on the repeated request of the appellant.

The verdict of the jury was so excessive...

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