Hansley v. Jamesville & W.R. Co.

• Decision Date: 11 December 1894
• Citation: 20 S.E. 528,115 N.C. 602
• Parties: HANSLEY v. JAMESVILLE & W. R. CO.
• Court: North Carolina Supreme Court

20 S.E. 528

115 N.C. 602

HANSLEY v. JAMESVILLE & W. R. CO.

Supreme Court of North Carolina

December 11, 1894

Appeal from superior court, Beaufort county; Graves, Judge.

Action by Frank H. Hansley against the Jamesville & Washington Railroad Company for damages for failure to furnish transportation. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Punitive damages will not be awarded against a railway company because, by reason of defective equipments, it failed to carry a person to whom it had sold an excursion ticket back to his starting point, where the only injuries complained of were such as resulted from inconvenience, delay, and disappointment, and there was no evidence of bad motives on the part of defendant.

J. H Small and W. B. Rodman, for appellant.

Chas F. Warren, for appellee.

PER CURIAM.

We are of the opinion that the plaintiffs in the above cases are not entitled to punitive damages. An opinion will be filed hereafter. New trial.

(Sept Term, 1894.)

AVERY J.

As this controversy grows out of an admitted failure on the part of the railway company to perform its agreement with a passenger to carry him to and from a particular place within a given time, and involves especially the question whether the testimony warranted the court in instructing the jury that they were at liberty to add exemplary damages to the estimated loss actually sustained by reason of the delay, it is not improper to state in the outset several leading principles of the law governing the relative rights and duties of carriers and passengers, and the rules generally applicable in the assessment of damages in such cases. The contract of carriage begins when the passenger comes upon the carrier's premises, or upon its means of conveyance, with a purpose of purchasing a ticket within a reasonable time, or after having purchased a ticket. The relation, once constituted, continues until the journey expressly or impliedly contracted for has been concluded, and the passenger has left the carrier's premises, or has been allowed a reasonable time to leave such premises. 2 Am. & Eng. Enc. Law, pp. 742-745. There is always, on the creation of a relation, an agreement, express or implied, and a legal obligation to perform the stipulation of the contract by transporting the passenger in accordance with the published schedule, or within a reasonable time. Hutch. Carr. § 603 et seq. If an action be brought for a breach of this contract the amount recovered is limited (with the single exception of a breach of this marriage contract, say many law writers) to damage supposed to have been in contemplation of the parties, and actually caused by such breach. The measure of damage is ordinarily not materially different whether the defendant fails to comply with his contract through inability, or willfully disregards it. We shall have occasion presently to advert to the distinction between, actions of tort founded upon a willful omission of a common-law duty, but involving at the same time a breach of contract, and such as are brought to obtain redress for the intentional failure or absolute refusal to comply with the terms of an agreement. Actionable negligence must be the proximate cause of a legal injury and damage. It may be (1) a pure tort; (2) an inadvertent breach of contract, which cannot be regarded as independent of the contract and tortious; (3) a breach of contract in the nature of tort, and which may be treated as such independent of the contract. 5 Am. & Eng. Enc. Law, supra. Treating of torts of this third class, Bish. Noncont. Law, § 74, says: "Because a common carrier, whether of goods or passengers, is a sort of public servant, the law imposes its duties upon him, a breach whereof is a tort, although there is a contract which is violated by the same act." Whenever there is a public employment from which arises a common-law duty, an action for a breach of such duty may be brought in tort. Express Co. v. McVeigh, 20 Grat. 264; Clark v. Railroad Co., 64 Mo. 440; Shear. & R. Neg. § 22. In actions ex delicto, the motive of the defendant becomes material. 1 Suth. Dam. § 373. If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received. 5 Am. & Eng. Enc. Law, p. 21, note 3. But where there is an element of fraud, malice, gross negligence, insult, or other cause of aggravation in the act causing the injury, punitive damages are allowed, said the court in Holmes v. Railroad Co., 94 N.C. 318; but the statement of the rule was modified by omission of the term "gross negligence" in the subsequent cases of Rose v. Railroad Co., 106 N.C. 170, 11 S.E. 526, and Tomlinson v. Railroad Co., 107 N.C. 327, 12 S.E. 138. The modification mentioned was due to the fact that this court meantime had said, in McAdoo v. Railroad Co, 105 N.C. 149, 11 S.E. 316, that "the most learned and discriminating text-writers concur in the opinion that, in actions arising ex delicto, there can be no degree of negligence that can be described by the word 'gross' alone. But, where an injury is due and can be traced directly to the willful act of another, he is not absolved from liability to the injured party. *** Hence we often find, in opinions which have emanated from this and other courts, the expression 'gross and wanton negligence'; but the former word is never used to describe a degree of carelessness that will excuse the fault of the plaintiff in exposing himself to danger, except when it is improperly held synonymous with 'willful,' 'malicious,' or 'fraudulent."' Thompson, in his work on Carriers and Passengers (page 573, § 27), says: "Such damages are termed 'exemplary,' 'punitive,' or 'vindictive,' sometimes called 'smart money,' and are only awarded in cases where there is an element of either fraud, malice, such a degree of negligence as indicates a reckless indifference to consequences, oppression, insult, rudeness, caprice, willfulness, or other causes of aggravation in the act or omission causing the injury. *** Some of the authorities include 'gross negligence' as one of the elements which entitles the plaintiff to exemplary damages." But the better view is given in an opinion delivered in a recent case in the supreme court of the United States. In reviewing that case Mr. Justice Davis, who delivered the opinion, said: "Some of the highest English courts have come to the conclusion that there is no intelligible distinction between ordinary and gross negligence." Railway Co. v. Armstrong, 91 U.S. 489. The general rule, therefore, is that, where the violation of duty makes the defendant a wrongdoer, only compensatory damages are allowed, while proof of a wrongful purpose may take a case out of it as an exceptional one. Fraud, malice, or insult imply from their very definitions the existence of an intent on the part of the wrongdoer to cheat, to injure through hatred, or to oppress. Where even the rightful ejection of a passenger is accompanied with undue force, "rudeness, recklessness, or other willful wrong" (Rose v. Railroad Co., supra), the law assumes the existence of bad motive on the principle applicable in ordinary cases of assault,--that every person is presumed to intend the natural consequences of his own act. Tomlinson's Case, supra. It must be noted that Mr. Thompson carefully excludes "gross negligence" as an element warranting the allowance of such damages, and substitutes the expression "such a degree of negligence as indicates a reckless indifference to consequences," which is equivalent to wanton carelessness; yet the learned justice who wrote the opinion in Holmes' Case, supra, inadvertently cited that author (94 N.C. 323) in support of his statement of the doctrine. In the consideration of the case at bar, therefore, it is proper to dismiss from our minds the idea that the weight of authority, in our own court or elsewhere, leaves us at liberty to hold that punitive damages may be awarded in every instance where a court can, by giving a very comprehensive meaning to that undefined and improper term, "gross negligence," as descriptive of the degree of carelessness, classify a case as an exceptional one, taken out of the general rule by the evidence of intent.

Counsel for the defendant asked the court, on the trial of the case at bar, to charge as follows: "(1) That upon the complaint, and the facts as stated in the complaint, in the absence of any allegations of willful or gross negligence the plaintiff is not entitled to recover punitive damages; (2) that, taking the entire evidence in view, the plaintiff is not entitled to recover punitive damages; *** (4) that if the plaintiff knew, when he contracted for transportation to Jamesville and return, of the general character, quality, and condition of the defendant's equipment, and the general condition of its road, plaintiff would be entitled to recover no damages except the cost of transportation back to Washington; (5) that, the cause of action being laid in tort, the plaintiff cannot recover damages for a breach of contract of carriage in this action; (6) that, upon the entire evidence, the jury should respond to the several issues in favor of the defendant; (7) that, if the defendant was expending the entire income from its road in the maintenance of its roadway and the equipment of said road, it is not guilty of such willful negligence as will subject it to punitive damages, but the plaintiff can only recover such actual damages as may have been proved." The court refused to give these instructions asked, but charged the jury, among other matters, as follows: "(2) The plaintiff claims that he bought a ticket from Washington to Jamesville, and back to Washington; that the defendant negligently failed to...