Johnson v. Atlantic Coast Line R. Co.

• Decision Date: 27 September 1922
• Docket Number: 63.
• Citation: 113 S.E. 606,184 N.C. 101
• Parties: JOHNSON v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

113 S.E. 606

184 N.C. 101

JOHNSON v. ATLANTIC COAST LINE R. CO.

No. 63.

Supreme Court of North Carolina

September 27, 1922

Appeal from Superior Court, Washington County; Horton, Judge.

Action by J. J. Johnson against the Atlantic Coast Line Railroad Company. Judgment on a verdict for plaintiff, and defendant appeals. New trial.

In an action by a passenger for wrongful ejection, wherein it appeared that plaintiff was on his way to a distant town to employ and gather together men for a lumber company with which he had a contract, and that by failure to fulfill his engagement with the men he lost his contract, damages for loss of such contract could not be recovered, as they did not ordinarily or naturally flow from the wrongful act of the carrier, nor were they within the reasonable contemplation of the parties.

Plaintiff J. J. Johnson, boarded the defendant's train on the 10th day of July, 1920, at Bowden, N. C., en route to Norfolk Va., having purchased a ticket at Bowden to Rocky Mount. He was ejected from the train by the conductor at Dudley, N. C for failure to produce his ticket. The jury found that the ejection was wrongful, and answered the issue as to compensatory damages, "$1,000.00."

Exceptions 1, 2, 3, 4, 5, 6, 7, 8, and 9 are taken to the admission of certain evidence showing that the plaintiff had a logging contract with the Rowland Lumber Company; that he had an appointment to meet certain laborers in Norfolk, Va., and bring them to Bowden, N. C., to be hired by him for the purpose of performing the said logging contract, and that he was en route to Norfolk when he was ejected from the train of the defendant; that his contract depended upon the services of these laborers, and if he failed to keep the work going he would lose his job; that on account of being ejected from the train, he missed his appointment, lost his men, and his contract with said lumber company was canceled.

The court submitted two issues to the jury, which were answered as follows:

"(1) Did the defendant wrongfully eject the plaintiff from its train, as alleged in the complaint? Answer: Yes.

(2) If so, what damage, if any, has the plaintiff sustained thereby? Answer: $1,000.00."

The court charged the jury as to certain elements of damage, such as humiliation, mental anguish, bodily pain, the loss of time and money, and then gave the following instruction:

"And in addition to that, he was a man who had a contract out on which he was making $300 a week clear profit by carrying men over to the Rowland Lumber Company and logging and digging railroads for them; that he had an engagement in the city of Norfolk that night, and left Bowden, intending to go there and fill that engagement and get those men and carry them back so he could continue to make $300 a week and by reason of the fact that he was wrongfully ejected from this train he was caused to lose a good deal of time, which made him lose this engagement in Norfolk, and by so doing these men were scattered, and he couldn't round them up, and that fact caused him to lose his contract with the Rowland Lumber Company, and he lost a great deal of money, loss of profit and time and money, all as he contends, naturally and reasonably and properly flowing from the wrongrul conduct of defendant towards him, and that when you sum up all these elements of damages that he is entitled to--compensatory damages--that you ought to find some large amount, around $3,000.00."

And again, in that connection, the court gave the following charge to the jury:

"As to this issue of damages, the court charges you that if the plaintiff has satisfied you by the evidence and by its greater weight that he is entitled to damages, he is entitled to recover as actual or compensatory damages a fair and just compensation for all loss that he has sustained that naturally flows from the wrongful conduct, if you find from the evidence and the greater weight thereof that the same was caused wrongfully by the defendant towards him. This would include loss of time and personal inconvenience, if any, and any financial and pecuniary loss, if any. If you find from the evidence and by its greater weight that the conduct of the defendant was wrongful in ejecting him from the train, you will answer this issue whatever amount you are satisfied from the evidence and by its greater weight that the plaintiff had sustained according to that measure of damages, if you find he is entitled to recover at all. It is a question of fact for you. The court has no opinion of its own as to what your answers will be. The court has merely stated the contentions of the plaintiff and the defendant and the evidence bearing on the contentions."

Exceptions were duly taken to these instructions.

Judgment upon the verdict, and defendant appealed.

Z. V. Norman, of Plymouth, for appellant.

W. L. Whitley, of Plymouth, for appellee.

WALKER, J. (after stating the facts as above).

We are of the opinion that the learned judge erred in the instructions to the jury which are above stated.

The question as to the measure of damages, in cases of this kind, has been much discussed by this court in several cases, and the law thoroughly settled.

The court said in Lee v. I. M. & S. Railroad Co., 136 N.C. 533, 535, 48 S.E. 809:

"It is immaterial whether we treat the cause of action as for a breach of contract or for a negligent omission to perform a public duty arising out of a contract [of carriage]. The damages in either case are confined to such as were reasonably within the contemplation of the parties when the contract was made by which the duty to the plaintiffs was assumed."

Whether this is strictly accurate where the action is one for the tort, in respect to the time when the damages should be in contemplation of the parties, that is, whether at the time of the commission of the tort, or at the time the contract of carriage was entered into, we will not now inquire, for it will suffice for our purpose in this case if we assume that it is the time when the tort was committed, and in the case where the action is in contract, at the time of making the contract, for we think that in either case the failure to employ the laborers at Norfolk, and the consequent loss of plaintiff's contract with the Rowland Lumber Company, should not have been considered in assessing the damages.

It is said in Penn v. Telegraph Co., 159 N.C. at pages 310, 311, 75 S.E. 16, 18 (41 L. R. A. [ N. S.] 223):

"In so far as mental anguish is concerned, except in cases where punitive damages are sought and allowable and except as to the time, when the relevant circumstances are to be noted and considered, the amount is very much the same whether the recovery is had in contract or in tort. In the one case those damages are allowed which were in the reasonable contemplation of the parties when the contract was made, and in the other the consequential losses resulting from the tort and which were natural and probable at the time the tort was committed. Hale on Damages, page 48. Speaking to these principles and their practical application in Scott and Jarnagan's Law of Telegraphs, it is said: 'But when the contract between the parties does not show they had in contemplation this wider range in the estimate of damages (in contract), the measure of damages seems to be substantially the same in either kind of action. The true rule of estimating damages in actions ex contractu may be stated thus: The defendant is liable only for damages as may fairly and substantially be considered as arising naturally, i. e., according to the usual course of things, from the breach of the contract, or--and here is where the measure of damages takes a wider range--for whatever damages may fairly be supposed to have been within the contemplation of the parties. The rule in actions ex delicto is that the damages to be recovered must be the natural and proximate consequence of the act complained of. This is the rule when no malice, fraud, oppression, or evil intent intervenes. The damages which may be considered as arising naturally, according to the usual course of things, from the breach of the contract, are substantially the same as damages which are the natural and proximate consequences of the wrong complained of.' "

"This is one principal difference in the element of damages, obtaining in breach of contract and consequential damages arising from a tort. In the one case damages are recovered, as a rule, on relevant facts in the reasonable contemplation of the parties at the time the contract is made, and in the other on the facts existent or as they reasonably appeared to the parties at the time of the tort committed." Peanut Co. v. Railroad, 155 N.C. 152, 71 S.C. 72.

And the present Chief Justice says in Kennon v. Telegraph Co., 126 N.C. 232, 35 S.E. 468:

"It is immaterial under our system of practice whether the action is in tort for the negligence in the discharge of a public duty, or for breach of contract for prompt delivery, for the recovery in either case is compensation for the injury done the plaintiff, and which was reasonably in contemplation of the parties as the natural result of the breach of the contract or default in discharging the duty undertaken."

See, also, Foard v. Railroad Co., 53 N.C. 235, 78 Am. Dec. 277; Sharpe v. Railroad Co., 130 N.C. 613, 41 S.E. 799; Newsome v. Telegraph Co., 153 N.C. 153, 69 S.E. 10.

Damages are measured, in matters of this kind, not only by the well-known rule laid down in Hadley v. Baxendale, 9 Exch. 341, but they must not be the remote, but the proximate consequence of a breach of contract or the wrong and must not be speculative or contingent. Byrd v. Express Co., 139 N.C. 273, 51 S.E. 851. It is an...