Louisville & N.R. Co. v. McCaskell

• Decision Date: 17 October 1910
• Docket Number: 14,418
• Citation: 98 Miss. 20,53 So. 348
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY v. ARMSTEAD McCASKELL
• Court: Mississippi Supreme Court

53 So. 348

98 Miss. 20

LOUISVILLE & NASHVILLE RAILROAD COMPANY v. ARMSTEAD McCASKELL

No. 14,418

Supreme Court of Mississippi

October 17, 1910

APPEAL from the circuit court of Jackson county, HON. W. H. HARDY Judge.

Suit by Armstead McCaskell against the Louisville & Nashville Railroad Company. Judgment for plaintiff and defendant appeals.

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

Affirmed.

Green &amp Green, Gregory L. Smith and Joel W. Goldsby, for appellant.

No brief of counsel for appellant found in the record.

May &amp Saunders, for appellee.

Counsel for appellant insist that no punitive damages are properly allowable because they assume, first, that the wrongful conduct complained of occurred in the state of Alabama. This is an assumption of fact not borne out by the record. And they say upon this assumption that the conductor in charge of the appellant's train had the right to eject the appellee from the train in a proper manner because the contract which was exhibited entitled the holder to a ride from Scranton to Mobile and not from Mobile to Scranton as the train was going.

We might concede for the sake of argument that the incident occurred in Alabama, and still the plaintiff was entitled to recover, because the conduct and treatment of the plaintiff by the conductor was rude, oppressive and insulting, and furthermore, the right of the plaintiff to ride on the ticket was one governed by contract and it was a Mississippi contract made at Scranton, Mississippi, and, of course, to be solved by the law of the place of the making of the contract. The law of the state of Mississippi has been fully and clearly settled since the Riley case, 68 Miss. 765, was decided. In that case the outgoing conductor, by mistake, took up the wrong end of a round trip ticket and the returning conductor refused to accept and honor the going end of the ticket. The returning conductor refused to honor the contract and a verdict of three hundred dollars was awarded the plaintiff in that case, and was not disturbed. For additional authorities on this proposition see the following: Pennsylvania Co. v. Bray, 125 Ind. 229; Lake Erie, etc. R. Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464; Philadelphia, etc. R. Co. v. Rice, 64 Md. 63; Rouser v. North Park St. R. Co., 97 Mich. 565; Baltimore, etc. R. Co. v. Bambrey (Pa. 1888), 16 A. 67; Am. and Eng. Ency. of Law, vol. 5, 603, note; Hutchinson, Carriers, 3d Ed., vol. 2, §§ 1062, 1064; Ellsworth v. Chicago, B. & Q. R. Co., 29 L. R. A. 173; Pennsylvania Co. v. Lenhart, 56 C. C. A. 467; Scofield v. Pennsylvania Co., 56 L. R. A. 224; Kansas City, etc. R. R. Co. v. Little, 97 Am. St. Rep. 377; Memphis St. Ry. Co. v. Graves, 100 Am. St. Rep. 803; New York, L. E. & W. R. Co. v. Winter, 36 Law Ed., U.S. S.Ct. 73; Thompson on Negligence, §§ 2570, 3195, 3200-3.

In the case of Railway Company v. Livingston, 84 Miss. 1, the company was held liable for the misconduct of the conductor of its freight train, which did not carry passengers, for cursing and abusing a trespasser in ejecting him from the train. In that case a verdict of two thousand dollars was returned, which was cut to one thousand dollars in the supreme court. Chief Justice Whitfield protesting against the reduction of the damages. See, also, Jackson v. Railroad Co., 76 Miss. 703; Mitchell v. Southern Railway Co., 77 Miss. 917; Vicksburg Company v. Marlett, 78 Miss. 872; Railroad Co. v. Moore, 79 Miss. 766.

But counsel say that because, on their assumed state of facts, this wrong was committed in Alabama, the Mississippi courts should not furnish redress, notwithstanding it is a Mississippi contract. This contention has been settled adversely to their view by the case of Pullman v. Lawrence, 74 Miss. 782, in which the court sustained a fifteen thousand dollars verdict for actual and punitive damages in a suit for injuries occurring outside of the state on a contract made in another state between citizens of another state. In order to sustain the contention of counsel, it would be necessary to overrule the case of Pullman v. Lawrence and then assume that the injury occurred in Alabama. In other words, it would be necessary to unmake the law and make some facts for the record. This, we do not believe the court will do.

Counsel next proceed to argue that the court erred in giving the two instructions asked by the plaintiff, and of the instruction No. 2, they especially complain, the said instruction being in this language:

"The court instructs the jury to find for the plaintiff the amount of the value of his fare from Mobile to Scranton and such additional sum as the jury may believe proper under the evidence the plaintiff is entitled, and if they believe he is entitled to recover punitive damages from the evidence, not to exceed two thousand dollars."

The instruction limits the award of the jury to the amount sued for. If they had been instructed that they might award punitive damages for any amount they believed the plaintiff was entitled to recover under the evidence, that instruction would have been complained of because not limiting the award to the amount demanded in the declaration. We submit that the instruction was proper as given, but if it can be said that it was calculated to magnify to the minds of the jury the injuries done to the plaintiff, the amount of their award is conclusive that they were not misled by the instruction, and that the defendant, therefore, was not injured by it, and, therefore, if error can be predicated of the instruction, it was not prejudicial error, and this is manifest.

We deem it unnecessary to cite cases from this court which hold that causes will not be reversed for error committed in the trial which manifestly did no harm.

Instructions which have been approved which told the jury that they might find for the plaintiff in a sum not to exceed the amount sued for, we take a few at random from Brickwood Caskett Instructions, vol. 1, 3d Ed., page 602. Instruction was approved by Supreme Court of Indiana which concluded as follows: "And may find for him in such sum as in the judgment of the jury and all the evidence in the case will compensate him for the injuries received, not, however, exceeding the sum of twenty thousand dollars."

Page 619 we find a similar instruction approved by the Supreme Court of Missouri, and another at page 630, and many more are therein cited which we deem it needless to enumerate. But the number is so great as to show that the practice is well nigh universally approved by the courts.

If the instructions were proper as modified, error cannot be predicated of them, because they were used by the appellant. As said by the court in Railway Company v. Suddoth, 70 Miss. 265, "If the defendant was not content with the instruction as modified, it should have declined to read it to the jury." In the Suddoth case the instruction as asked was erroneous, and as modified and used was erroneous. The court said the railway company could not complain of the modification because it used the instruction, and this holding was reaffirmed and approved in the case of Railroad Company v. Hardy, 80 Miss. 732, and Railroad Company v. Byrd, 89 Miss. 308.

OPINION

ANDERSON, J.

The appellee, McCaskell, sued the appellant, the Louisville &amp Nashville Railroad Company, for personal injuries, and recovered a judgment for two hundred fifty-one dollars and twenty-five cents, one dollar and twenty-five cents of which was actual damages, and two hundred and fifty dollars punitive damages, from which judgment...