Gulf & Ship Island Railroad Company v. Cole

• Decision Date: 22 April 1912
• Citation: 58 So. 208,101 Miss. 411
• Parties: GULF & SHIP ISLAND RAILROAD COMPANY v. MRS. LAURA COLE
• Court: Mississippi Supreme Court

58 So. 208

101 Miss. 411

GULF & SHIP ISLAND RAILROAD COMPANY v. MRS. LAURA COLE

Supreme Court of Mississippi

April 22, 1912

March 1912

APPEAL from the circuit court of Simpson county, HON.W. H. HUGHES Judge.

Suit by Mrs. Laura Cole against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case reversed and remanded.

B. E Eaton and May & Sanders, for appellant.

We were appalled when the trial court declined to apply to this case the principle so aptly stated and thoroughly discussed by Chief Justice Mayes in the opinion of the court overruling the suggestion of error in the case of Railroad Co. v Hardie, 100 Miss. 132, 55 So. 967. Unless this court can be persuaded to reverse the Hardie case the refusal of the trial court to grant appellant's instruction No. 3, denying recovery of punitive damages and the granting of plaintiff's instruction No. 1, allowing recovery of punitive damages was reversible error. See, also, Railroad Co. v. Hughes, 50 So. 627; Railroad Co. v. Purnell, 69 Miss. 652; Railroad Co. v. Fite, 67 Miss. 373; Dorrah v. Railroad Co., 65 Miss. 14; Railroad Co. v. Faust, 32 So. 9; Railroad Co. v. Pearson, 80 Miss. 26, 31 So. 435.

We respectfully submit that the facts of this case tested by the well-settled rule in Mississippi, fall far short of making a case for punitive damages. In the Hardie case, supra, 55 So. 974, our court said:

In the first place in the case of Railroad Co. v. Marlett, 78 Miss. 872, 29 So. 862, this court held that, "A willful wrong that gives a cause of action for the imposition of exemplary damages, must be denoted by a wrongful act done with a knowledge of its wrongfulness." When under the facts of this case the conductor refused to back he was guilty of no wrongful act and no punitive damages should have been allowed. In the case of Railroad Co. v. Scurr, 59 Miss. 456, 42 Am. Rep. 373, a passenger was carried by his proper station by reason of the negligence of the conductor, it does not appear that a demand was made by the passenger for the backing of the train, but punitive damages was sued for and the court held that for a mere breach of duty no punitive damages could be assessed." See, also, Railroad v. Dodds, 53 So. 409.

It was negligence if the conductor erroneously advised plaintiff her station had been reached but such conduct did not amount to a "willful wrong . . . denoted by a wrongful act done with a knowledge of its wrongfulness." The truth is the plaintiff admits that every courtesy was extended to her by the train employees, that they were careful and polite in assisting her off, and all that is contended is that by mistake she was directed to get off at the wrong place. If she had known what the conductor under the facts in this record had a right to assume she did know, that is, that she would recognize her proper destination and would not get off until it was reached, there would have been no occasion for plaintiff to get off at the wrong place. In other words, she would have said to the conductor, "This does not look like Low, my destination," and the conductor, having his attention directed particularly to her position, would have discovered and avoided his mistake. Appellant owed plaintiff the duty to transport her to her destination, Low, and it breached its duty; but for a mere breach of duty no punitive damages can lawfully be assessed. Indeed, under the facts of this case, we think nominal damages is all that can properly be allowed. Railroad Co. v. Lambert, 54 So. 836; Railroad Co. v. Drummond, 73 Miss. 813; Thompson v. Railroad Co., 50 Miss. 315.

Willing & Davis, for appellee.

The court very properly submitted the question of punitive damages to the jury. This is a typical case for the imposition of punitive damages.

As was said in the case of Davis v. Railroad Co., 95 Mo. 542: "This was manifestly a case in which the jury should have been allowed to say whether, under all the circumstances there was such gross negligence on the part of the railroad company, such conscious indifference to the rights of the plaintiff and the public, as warranted the imposition of punitive damages, and, of course, as a consequence, if punitive damages were allowed, such a case as warranted damages for mental suffering."

In order to justify the imposition of punitive damages against common carriers it is not necessary to prove intentional wrong or insult. It is sufficient if negligence is shown so gross as to evince a reckless disregard of plaintiff's rights or conscious indifference to the rights of the plaintiff.

The rule as to punitive damages is stated in the case of Manufacturing Co. v. Marlett, 78 Miss. 872, as follows:

"It has been held in this case that punitive damages may be recovered, only in case where the acts complained of are characterized by malice, fraud or willful wrong, evincing a disregard of the rights of others." The courts have uniformly held that gross negligence is tantamount to willful wrong and justifies the imposition of punitive damages.

On the subject of punitive damages we call the court's attention to the following authorities: Hurst's case, 36 Miss. 660; Kendrick's case, 40 Miss. 374; Railroad Co. v. Whitfield, 44 Miss. 466; Wilson v. Railroad Co., 63 Miss. 352; Higgins' case, 64 Miss. 80; Dorrah v. Railroad Co., 65 Miss. 14; Railroad Co. v. Fite, 67 Miss. 373; Railroad Co. v. Lowry, 79 Miss. 431; Telephone Co. v. Watson, 82 Miss. 101; Railroad Co. v. White, 82 Miss. 120; Railroad Co. v. Lanning, 83 Miss. 161; Railroad Co. v. Mitchell, 83 Miss. 179; Railroad Co. v. Harper, 83 Miss. 561; Telephone Co. v. Hiller, 93 Miss. 658; Burns v. Railroad Co., 93 Miss. 816; Davis v. Railroad Co., 95 Miss. 540.

Argued orally by Geo. W. May, for appellant.

Argued orally by C. H. Alexander, for appellee.

MAYES C. J. McLEAN, J., dissenting.

OPINION

MAYES, C. J.

Mrs. Cole brought suit against the Gulf & Ship Island Railroad Company for damages, alleged to have been occasioned her by reason of the fact that she was allowed to get off of the train, or was negligently put off, by the servants of the company at the wrong station. In the declaration filed both actual and punitive damages are claimed, and on the trial an instruction was given for the appellee, authorizing the jury to award punitive damages. The jury returned a verdict for three thousand dollars, from which judgment the railroad company prosecutes an appeal.

The chief contention in this court for appellant is that the facts did not warrant the court in authorizing the jury to assess punitive damages. The facts are substantially as follows: Mrs. Cole lived about six miles north of Magee, in Simpson county, and about twenty miles from a little station on the Gulf & Ship Island Railroad, called Low, and about the same distance from another little station on this same road, called Milltown. Milltown and Low are some two or three miles apart; Milltown being east of Low and nearer Soso, the point where Mrs. Cole boarded the train. It appears that Mrs. Cole was not familiar with the surroundings at Low or Milltown; while she had passed through twice, she had never been there. It is shown that on the 29th day of January, 1911, Mrs. Cole bought a ticket from Soso to Low, Milltown being the station nearest her starting point, and about three miles from Low; the train, of course, reaching Milltown first. Mrs. Cole had been on a visit to a sick sister at Soso, and on the above date was returning home, and was expecting to be met at Low by a son and nephew, with a team to take her home that evening. Mrs. Cole had with her a baby about seven months old, a basket, a cloak, and a small grip. When the train reached Milltown, she says "the train stopped, and the conductor came through and hollowed 'Low,' and when he got where I was, he picked up my baggage, and I followed him, and he set my baggage down on the ground and got back on the train and it pulled out." She then says she stood a while, thinking she was at Low, as she had never been there before. Gathered at the stopping point of the train were some boys, and Mrs. Cole asked them if there was any team there to meet a lady. There were no houses at Milltown; nobody living there, and no depot and no shelter. The day was fair, but cool. She arrived at Milltown late in the evening, about 4:30 or 5 p. m. She asked the boys if they would go with her to where she could get shelter; and one of them said he would go with her to Mr. Charley Butler's house, as it was right on his way home. She states that she had known Mr. Butler, and after going to his home she got him to telephone to her home folks that she was there. In going to Mr. Butler's house, she had to go through the millhouse and a little swamp; that there was just a muddy pathway up a plank to the millhouse and on out through the gate into the big road. In going to Butler's which was about a mile, or a little over, she carried the baby and part of her baggage, and the boy carried a part of it. The son received the telephone message and came on over where she was for her, reaching there about 10 or 11 o'clock that night. Mrs. Cole did not stay with Charley Butler, but stayed at Mr. Alvy Butler's, and was well taken care of, and reached her home about 1 o'clock the next day. Mrs. Cole states that on account of the walk, etc., she was made sick, had cold, tonsillitis, and fever, and aching bones, and remained in this condition about a week. After Mrs. Cole reached Charley Butler's, she went to Mr. Alvy Butler and his wife, on the invitation of the latter, because she had formerly lived by them, and they wanted her, and because they said they had more conveniences to take care of...