Gulf & S. I. R. Co. v. Beard

• Decision Date: 02 October 1922
• Docket Number: 22664
• Parties: GULF & S. I. R. CO. v. BEARD
• Court: Mississippi Supreme Court

93 So. 357

129 Miss. 827

GULF & S. I. R. CO. v. BEARD

No. 22664

Supreme Court of Mississippi

October 2, 1922

APPEAL from circuit of Smith county, HON. W. H. HUGHES, Judge.

Suit by Charlie Beard against, the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed.

T. J. Wills, for appellant.

The court was requested to charge the jury to find for the defendant. This instruction was refused. The court charged the jury that if the conductor wrongfully, wilfully or carelessly took up plaintiff's ticket, which ticket was a coupon or interline ticket, entitling plaintiff to transportation over the Southern Railroad, and held it until the plaintiff paid his transportation from Taylorsville to Laurel, and by taking up and holding the ticket, caused plaintiff to suffer damages or mental or physical worry or pain and embarrassment, that it was the duty of the jury to find for the plaintiff. The court further charged the jury for the plaintiff that if they believed that the agent made representations to the plaintiff as to the train he should board or the route he should take, and that plaintiff thereby was caused to board a different train or to take a different route and was caused to suffer undue physical or mental pain and embarrassment, actual damages, either or both, then it was the sworn duty of the jury to find, for the plaintiff. The court was requested by the defendant to charge the jury that the plaintiff was not entitled to recover for anything that the conductor did in hauling plaintiff to Laurel and in requiring plaintiff to pay for his transportation to Laurel. The court further refused to charge the jury that the plaintiff could not recover if the agent in delivering the ticket, did so without saying anything to plaintiff with reference to the direction he should go. The court further refused to charge the jury that they could not inflict punitive damages on any theory of the case.

The instruction directed that plaintiff might recover actual damages or mental or physical worry or pain and embarrassment occasioned by the conductor collecting this fare. The conductor was obeying the law in collecting the fare and certainly liability can never be imposed for acts that are required under the law to be performed. A failure to collect the fare would have been violation of the federal statute. L. & N. R. R. Co. v. Mottley, 31 S.Ct. 265, 219 U.S 467, 55 L.Ed. ; I. C. R. R. Co. v. Messina, 36 S.Ct 368, 240 U.S. 395, 60 L.Ed. 297, 709. The instruction asked by the defendant and refused by the court, as appears on page 10 of the record, was in line with the duties of the railroad company, as imposed by the federal statute, was a correct statement of the law and should have been granted. The instruction given the plaintiff, as appears on page 8 of the record, imposes liability upon appellant if the ticket agent made a statement when he delivered the ticket, that caused the plaintiff to take the train going in a wrong direction. The instruction permits a recovery for physical or mental pain or embarrassment or actual damages, either or both, on page 12 of the record. The defendant requested the court to charge the jury that if the agent delivered the ticket to plaintiff without making any statements, that it was not liable. It will be observed that the plaintiff's father testified that he heard every word that was said, and that the agent handed the ticket to plaintiff without telling him anything about it. This was plaintiff's father introduced in behalf of plaintiff, and plaintiff was bound by his testimony.

Plaintiff requested an interline ticket. The evidence shows that the agent could not issue it. It was issued at Gulfport at the general offices and forwarded to the agent to be delivered to plaintiff in exchange for the government request for transportation. The ticket expressed the contract between the railroad company and plaintiff and the railroad company would not be bound by any statement that plaintiff made, outside of and not expressed in the contract. Sevier v. V. & M. R. R. Co., 61 Miss. p. 8; Gage v. I. C. R. R. Co., 75 Miss. 17.

The instruction requested by the defendant and refused by the court as shown on page 12 was the converse of the instruction given the plaintiff on page 9, and certainly if the plaintiff's instruction was given, this instruction should have been given the defendant.

It was error to admit the evidence of plaintiff's suffering and physical and mental pain caused by the operation for appendicitis some weeks before he took passage upon defendant's train. The pain and suffering that he was then undergoing were not proper elements of damage. The admission of this evidence by the court and the instructions given the plaintiff permitted a recovery for this physical and mental pain and worry. This condition and suffering were not proper elements of damage, and the admission of the testimony and the instruction allowing the recovery therefor was error.

The defendant requested the court to charge the jury that they could not inflict punitive damages in this case. Punitive damages cannot be inflicted except where there is a wilful, wanton, or grossly negligent wrong perpetrated. In the instant case it is clear from the evidence of plaintiff himself that he left home to go to Taylorsville and take passage on the train to Laurel with his companion, Steve Blackwell, who was not destined to go further than that point. The conductor was compelled by law to collect his fare. There was no element of tortious wrongdoing to support the theory of punitive damages.

The value of this ticket is all he is entitled to receive, and that value he can receive by surrendering it to the company and asking for its redemption. The peremptory instruction requested should have been granted.

Sam Whitman, for appellee.

The case rests, as we see it, on the question whether or not the said agents and employees for the appellant wrongfully and carelessly by words and conduct first caused appellee to board the wrong...