Mobile & Ohio Railroad Co. v. Moreland

• Citation: 61 So. 424,104 Miss. 312
• Decision Date: 31 March 1913
• Docket Number: 15,905
• Parties: MOBILE & OHIO RAILROAD CO. v. MRS. SALLIE D. MORELAND
• Court: United States State Supreme Court of Mississippi

61 So. 424

104 Miss. 312

MOBILE & OHIO RAILROAD CO. v. MRS. SALLIE D. MORELAND

No. 15,905

Supreme Court of Mississippi

March 31, 1913

APPEAL from the circuit court of Wayne county, HON. J. L. BUCKLEY Judge.

Suit by Mrs. Sallie D. Moreland against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

J. M Boone, for appellant.

The fact in this case, in their legal effect, are practically the same as those in the case of A. & V. R. R. v. Lowery, in 57 So. 289; and under that authority we are entitled to a reversal of this case.

We contend further that under the opinion of Chief Justice MAYES in the case of Y. & M. V. R. R. v. Hardy, 55 So 967, in which he reviewed the law of Mississippi and established thoroughly and clearly the cases in which punitive damages were proper, we think this case ought to be reversed. It cannot be doubted that in running by this station and failing to stop there was no element of wilful or wanton disregard of duty, or any gross negligence; it was the result of a mere oversight and inadvertence, which is held in the Hardy case, supra, as not sufficient to sustain a verdict for punitive damages.

And we contend, further, that under that case it was the duty of this conductor to carry the plaintiff on by to the next station and not stop between these stations to put her off that the mere request or consent of the plaintiff to have the train stopped and be put off would not have justified the conductor in so doing; as was said in the Hardy case: "The law controlling the traveling public is practical and not theoretical; the right of every traveler is often relative and not abstract."

We further contend that this case is controlled by the rule laid down in the Gill case, 66 Miss. 39. The witnessess all agree that when this lady first called the attention that she was being carried by her station, the train was some one hundred and fifty or two hundred yards past the depot; and in the Gill case the train had gotten about two hundred or three hundred feet by the station, a very much shorter distance from the station than in the case at bar; and as pointed out in Chief Justice MAYES' opinion in the Hardy case, Gill demanded that the train only stop and let him and his wife off where it was, and this is the request made in the case at bar. Gill interpreted the conduct of the conductor as being angry and insulting, just as the plaintiff in this case interpreted the conduct of the conductor; but in the Gill case the court held that the plaintiff was not entitled to punitive damages; the court further saying in the Gill case that bruskness on the part of the conductor was not such insult for which the employers must be punished where it amounts to no more than it appeared in the Gill case, and we contend that there was just as much insult appearing in the Gill case as is in the case at bar.

From the foregoing, we contend that the first and second assignment of errors is well taken. The first charge granted for the plaintiff is error, because the court submitted to the jury the question as to whether or not the failure to stop the train at Boyce was wilful, when there was no testimony in the case justifying the submission of such a question to the jury, it being clearly established that the failure to stop the said train was a mere oversight on the part of the conductor, and there was no effort made by the plaintiff, through the testimony of any witness, to contradict this statement of the conductor, and there are no circumstances shown in this record that had the effect to, in the most remote way, contradict this statement on this point. And the said charge was further erroneous, in submitting to the jury and authorizing the jury to find punitive damages, "if the conductor in so refusing made use of language which was insulting to the plaintiff," leaving out altogether the question as to whether or not the language was such as ought to insult the plaintiff, or the necessary effect of which would be insulting to the plaintiff; but leaving the question of insult entirely to the opinion of the plaintiff, whether that opinion or conclusion was erroneous or justified by the language used by the conductor, which cannot be the law.

The second charge granted the plaintiff is erroneous, for the reason that it informed the jury that if they believed from the evidence that the conductor offered plaintiff any insult in connection with his failure to stop his train, that they might then allow her damages for mental anxiety, if any she suffered, by reason of such anxiety; when the testimony showed, without contradiction, that there was no insult offered in connection with his failure to stop the train; and the record is very clear that, if any insult was offered at all, it was not about the passing the station without stopping, but was in reply to the threats of the plaintiff to sue the defendant, and had no connection whatever with the act of failing to stop the train at the station; and this was very misleading and erroneous.

The second assignment of errors, as we show in the foregoing argument, we contend is well taken, as by these charges the defendant sought to confine the damages in this case to nominal damages, and to disallow any punitive damages.

The third assignment of errors is well taken, according to the law given to the jury for the defendant, which we contend was a correct anouncement of the law applicable.

In the sixth charge for the defendant the court instructed the jury that they could not allow anything more than nominal damages unless they believed from the evidence that the conductor intentionally used sneering remarks or words to the plaintiff, and by the seventh charge for the defendant the court instructed the jury that although they might believe that the plaintiff thought he sneered at her, yet if they thought from the evidence that he did not conduct himself in any manner so as to intentionally insult her, they would find only nominal damages; and in the eighth charge for the defendant, the jury was informed that although the conductor's conversation and manner was interpreted or understood by Mrs. Moreland to be insulting, yet if the jury believed from the evidence that said conductor did not knowingly or intentionally do anything with intent to insult, they would only allow nominal damages; and in the ninth instruction for the defendant the jury was informed that although Mrs. Moreland thought the conductor sneered at her, yet if they believed from the evidence that the conductor did not intend to sneer, they would only allow nominal damages.

We contend that each of the above instructions were pertinent on the question as to whether or not punitive damages should be allowed in this case; that punitive damages could be allowed only in a case where there was intentional wrong done, as is held in all of our cases upon the subject; and that under the evidence in the case at bar the verdict was contrary to the law, as correctly set forth in said charges to the jury.

All of the authorities agree that exemplary or punitive damages are awarded as a punishment for the evil motive or intent with which the act is done, and as an example or warning to others; and that where the act is done without any bad intention, there is no ground under which such damages can be awarded. R. R. v. Hoefich, 62 Md. 300, 50 Am. Rep. 223; Y. & M. V. R. R. v. Lowery, 57 So. 289.

Even if the court should disagree with us as to whether or not the question of punitive damages should be submitted at all to the jury in this case, yet we say if such damages were possible in this case, the verdict is excessive and against the overwhelming weight of the testimony.

Carl Fox, for appellant.

It is firmly established by the testimony of every witness, including the plaintiff herself, that the refusal on the part of the conductor to stop the train was not at the station of Boyce, but after the train had passed Boyce and was running at a rapid rate of speed btween Boyce and the next station. The request of plaintiff to the conductor was that the train should be stopped between the station of Boyce and the next station south, as in the Gill case, 66 Miss. 39.

The evidence, about which there is no dispute whatever in this record, and concerning which there was no issue to be submitted to the jury, is that the conductor, having taken up a number of tickets to Waynesboro overlooked the fact that plaintiff's ticket was for Boyce, thought it was for Waynesboro, and merely through inadvertence failed to stop the train there.

Nothing so far but a case of compensatory damages at most. Then the respective rights, duties and liabilities of the plaintiff and the company shifted. It became the duty of the company to return plaintiff to her station as quickly as it reasonably could. It was not the duty of the company either to stop the train or to back up to the station of Boyce. It was the duty of the plaintiff to accept the situation and it was her right to recover of defendant whatever amount would compensate her under the circumstances for the injury she suffered thereby taking into consideration, of course, the fact that the negligence of the company made it necessary for her to go to the station of Waynesboro, wait there three hours and return on another train. The testimony, including the plaintiff's, is that the conductor and other servants of the defendant did all and more than the law required of them, after she bad passed her station; and she alone testifies but one solitary circumstance to which even she, constitutionally nervous and delicate, angered, suffering with physical weakness and exhaustion and tortured...