Mobile & O. R. Co. v. Flannagan

• Decision Date: 02 November 1925
• Docket Number: 25060
• Citation: 141 Miss. 7,105 So. 749
• Parties: MOBILE & O. R. CO. v. FLANNAGAN. [*]
• Court: Mississippi Supreme Court

105 So. 749

141 Miss. 7

MOBILE & O. R. CO. v. FLANNAGAN. ^[*]

No. 25060

Supreme Court of Mississippi

November 2, 1925

Division B

1 COMMERCE. Questions of damages recoverable for delay in delivery of baggage of passenger in interstate trip determined on federal law.

Questions arising in action for damages for delay of carrier in delivering suit case, baggage of passenger in interstate trip, whether recovery may be had for mental worry alone, and whether punitive damages are recoverable for willful act of agent, where principal does not participate in or authorize or ratify it, are to be determined on federal law.

2 CARRIERS. Damages. Not recoverable for mental worry disconnected from physical injury, and so not for mere delay in delivering baggage.

Under both state and federal law there can be no recovery for mere mental worry disconnected from physical injury, and so not therefor from mere delay in delivering baggage.

3. PRINCIPAL AND AGENT. Punitive damages not recovered of principal for agent's willful negligence.

Punitive damages are not recoverable of a principal for willful negligence of agent, not participated in, authorized or ratified by, the principal.

HON. C P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Action by Charlie Flannagan against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Ely B. Mitchell, and R. C. Beckett, for appellant.

Charlie Flannagan, appellee brought this suit in the circuit court of Alcorn county, Mississippi, against the appellant, and set out as ground of action that a suit case was carried by Ramer, Tennessee, on the afternoon of March 24, 1924, and that he did not get the suit case until the afternoon of March 25, 1924, and, "That in the meantime he and his wife and children had been greatly inconvenienced and annoyed on account of the failure to get their clothing and especially had the little girl suffered greatly on account and by reason of the fact that she did not have the braces," which the plaintiff had repeatedly notified the defendant were in the suit case, and the plaintiff was greatly annoyed and greatly harassed in body and mind; and plaintiff charges that on account of the willful, reckless and gross negligence on the part of the defendant, its agents and servants, in failing to put off the suit case at Ramer, and in refusing to return the same, the plaintiff was damaged both actual and punitive in the sum of one thousand dollars."

Under the rule of common law, as pronounced and enforced in the federal courts of the United States, a corporation cannot be held liable for punitive or exemplary damages or the illegal, wanton and oppressive conduct by one of its employees, unless the corporation itself, through its board of directors, president or general manager, actually wielding the executive power of the corporation participated in the wrongful act, expressly or impliedly by authorizing or approving it, either before or after it was committed. Lake Shore & Michigan Southern Railway Co. v. Prentice, 147 U.S. 101; Western Union Telegram Co. v. Norman, 83 So. 462, 121 Miss. 128; Western Union Telegram Co. v. Showers, 73 So. 276, 112 Miss. 411.

The court correctly ruled that he was not entitled to pay for expenses in going after his suit case. Miss. Central R. R. Co. v. John Kennedy, 41 Miss. 671. Since this baggage was checked from Corinth, Mississippi to Ramer, Tennessee, it is an interstate shipment and governed by the Interstate Commerce Act. The court so held.

It is the law of Congress and not that of Mississippi, or Tennessee, which must apply and govern in the trial of this case.

"The rights and liabilities of an interstate passenger, and the carrier, in case of a loss of baggage depends upon federal regulations, the agreement between the parties, and common-law principles, as accepted and enforced in federal tribunals." N. Y. C. & H. R. R. v. Beaham, 242 U.S. 148, 61 L.Ed. 210; Texas v. Mugg, 202 U.S. 242-245, 50 L.Ed. 1001-13; Texas & Pac. R. R. Co. v. Abilene Cotton Oil Company, 204 U.S. 426-445, 51 L.Ed. 553-560; Armour Packing Co., 52 L.Ed. 681; Texas & Pac. R. R. Co. v. Mugg, 202 U.S. 242, 50 L.Ed. 1011; Chicago & A. R. R. Co. v. Kirby, 225 U.S. 155, 56 L.Ed. 1033; Adams Express Co. v. Cronninger, 226 U.S. 491, 57 L.Ed. 314; Missouri, K. & T. R. R. Co. v. Harriman, 227 U.S. 657, 57 L.Ed. 690.

"A limitation as to baggage liability of an interstate carrier, based upon the requirement to declare its value when more than one hundred dollars, and pay any excess charge, is a regulative determinative of the rate to be charged and affecting the service to be rendered to the passenger within the meaning of the act to regulate commerce of February 4, 1887 (24 Stat. at L. 279, chap. 104, U. S. Comp. Stat. 1901, 2154) sec. 6, as amended by Act of June 29, 1906 (34 Stat. at L. 1, 584, chap. 3591, U. S. Comp. Stat. Supp. 1911, at 1288), which requires regulations of that character to be filed and posted in accordance with its provisions as a part of the carrier's tariff schedules."

"A railway carrier receiving a passenger's baggage for interstate transportation is not required to give any other receipt than the customary baggage check by the provision of the Act to regulate commerce of February 4, 1887, section 20, as amended by the Act of June 29, 1906, that a railway company receiving property for transportation in interstate commerce shall issue a receipt or bill of lading therefor." Boston & Maine Railway Company v. Katherine Hooker, 235 U.S. 97, 58 L.Ed. 868; Galveston H. & S. A. R. R. Co. v. Woodberry, 254 U.S. 357, 65 L.Ed. 301.

The action is based on a claim for mental suffering only, and nothing else was set out, and the proof discloses no other injury for which compensation is sought. On the facts presented here, the long recognized common-law rule permitted no recovery; the decisions to this effect "rest upon the elementary principle that mere mental pain and anxiety are too vague for legal redress where no injury is done to person, property, health or reputation."

The lower federal courts, almost without exception, have adhered to this doctrine, and in so doing we think they were clearly right upon principle and also in accord with the great weight of authority. Southern Express Co. v. Byers, 240 U.S. 612, 60 L.Ed. 825; Western Union Telegraph Company v. Showers, 112 Miss. 411, 73 So. 276.

"Mental suffering: Inconvenience and mortification due to the delay of the baggage are not elements of the damage recoverable, certainly not inconvenience which the passenger has the means of overcoming." 10 C. J. 1228.

"The measure of damages where a trunk has been unreasonably delayed and a person deprived of his wearing apparel, or property necessary for his use contained in the trunk would be the value of the use of the wearing apparel or other property so delayed, during the delay in delivering it to him." Ford v. A. Coast Line Railroad Co., 8 Ga.App. 295, 68 S.E. 1072. See also Texas, etc., R. R. Co. v. Taylor, 3 Tex. Civ. Cas., sec. 192; Texas, etc., R. R. Co. v. Russell (Tex. Civ. A.), 97 S.W. 1090.

In the case at bar at the time that the check for the baggage was given the appellee, it contained the following: "The value of the baggage or articles belonging to or checked for an adult passenger shall be held to have been declared and agreed by him to be, and shall be deemed to be, not in excess of one hundred dollars." If the entire contents of this suit case had been lost to the appellee and the same had been for good, according to the terms of this contract he could have recovered only one hundred dollars. Western Union Tel. Co. v. Norman, 121 Miss. 128, 83 So. 465.

"The Federal Rule denies recovery, for mental anguish alone governs in a suit for damage in delivering an interstate telegram." Western Union Tel Co. v. Showers, 73 So. 276, 112 Miss. 411, 10 C. J. 1228.

W. C. Sweat, for appellee.

The first contention of the railroad company is that this case grew out of the transportation of baggage from Mississippi into Tennessee; and was, therefore, governed by the Interstate Commerce Act, and by the rule governing the trial of cases in federal court.

No plea was filed here to the effect that this defense would be relied upon, and no notice given that this was interstate carriage and governed by the Interstate Commerce Act.

In the second place, the Interstate Commerce Act requires that the rates, fares, and charges for transportation should be published, filed, and copies thereof kept in a conspicuous place. There is no evidence at all anywhere in this record that this schedule has been filed, published and kept posted, as required by the Act. U. S. Compiled Statutes, 1901, at 3154; Robinson v. Baltimore, etc., R. R. Co., 56 L.Ed. 228; New York Central Ry. Co. v. Beaham, 61 L.Ed. 210.

The only plea filed in the court below was the general issue, which is simply a general denial of liability. The supreme court of the United States has held that, in order for the defendant to avail itself of the provisions of the Federal Act, the same must be asserted at the proper time and in the proper manner, by pleading, motion, or other appropriate action under the state system of pleading and practice. Atlantic Coast Line R. R. Co. v. Lizzie M. Sims, 242 U.S. 532, 61 L.Ed. 476; Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 47 L.Ed. 480.

The next contention of the appellant is that, when the baggage was checked from Corinth to Ramer, Tenn., a baggage check was given to the appellee, Flannagan, and that on the back of this check was some printed matter which limited the railroad's liability to one hundred dollars...