Pendleton v. Norfolk

CourtSupreme Court of West Virginia
Writing for the CourtRITZ, J.
Citation82 W.Va. 270
Decision Date23 April 1918
PartiesBascom W. Pendleton v. Norfolk & Western RailwayCompany et al.

82 W.Va. 270

Bascom W. Pendleton
v.
Norfolk & Western Railway
Company et al.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1918.
Decided April 23, 1918.


[82 W.Va. 270]

1. Assault and Battery Self-Defense Pleading.

In a civil action to recover damages for an assault and battery, the defendant cannot justify upon the ground of self-defense, unless such matter of justification be specially pleaded. (p. 274).

2. Same Self-Defense Mitigation of Damages Pleading.

In such case, however, evidence tending to show that the assault was committed by the defendant in self-defense may be introduced under the plea of not guilty, in mitigation of damages, but not in justification of the assault. (p. 274).

3. Same Action for Damages Evidence.

In a civil suit to recover damages for an assault and battery, it is not proper to admit in. evidence the record of a justice of the peace showing the conviction of the plaintiff in the civil suit of an assault and battery upon the defendant for the very same transaction which affords the basis for the civil suit, from which conviction an appeal was taken, and which charge still remains undetermined upon the appeal. (p. 274).

4. Same Damages Exemplary.

Punitive damages should not be awarded in any case unless there is evidence from which the jury may conclude that the defendant acted with malice toward the plaintiff, or with reckless and wanton disregard of the plaintiff's rights. (p. 275).

5. Same Action for Damages Punitive Damages.

Where in an action for assault and battery there is evidence tending to show that the defendant acted with malice toward the plaintiff, or with reckless and wanton disregard of the rights of the plaintiff, it is proper to instruct the jury that if they believe that the defendant did so act they may in their discretion award damages in excess of that which would compensate the plaintiff for his injury, as a punishment to deter the defendant and others from the commission of like offenses. (p. 275).

6. Damages Punitive Damages Award with Reference to Compen-

satory Damages.

Punitive damages should not be awarded in a case where the amount of compensatory damages is adequate to punish the defendant, and in a case where such compensatory damages are not

[82 W.Va. 271]

in the judgment of the jury adequate for the purpose of punishment, only such additional amount should be awarded as taken together with the compensatory damages will be sufficient for that purpose. (p. 275).

7. Same Punitive Damages-Amount.

In a case where it is proper to award punitive damages the amount of such award must bear some reasonable proportion to the amount of compensatory damages. (p. 278).

8. Same Punitive Damages Excessive Damages.

In a case in which it is proper for a jury to award punitive damages, it is competent to consider the station of the parties, and particularly the financial and social standing of the defendant, in order that it may be determined what will be adequate and sufficient punishment, and where, after considering these elements, as well as the nature and character of the offense committed, the amount found is so out of proportion to the injury inflicted that it is patent that the jury were actuated by motives of ill feeling toward the defendant in ascertaining such damages, and not alone by the purpose to punish the defendant, such verdict will be set aside as excessive. (p. 278).

9. Assault and Battery Punitive Damages Excessive Damages.

Where in a civil action to recover damages for assault and battery the actual damages found by the jury are substantial as in this case, an award of punitive damages for ten times the amount of the actual damages awarded will not be sustained, (p. 278).

Error to Circuit Court, Mercer County.

Action by Bascom W. Pendleton against the Norfolk & Western Railway Company and others. Judgment for plaintiff, and defendants bring error.

Reversed and remanded.

French & Easley. Bernard McClaugherty, and A. W. Reynolds, for plaintiffs in error.

Sanders, Crockett & Kee, and John R. Pendleton, for defendant in error.

RlTZ, J udge:

The plaintiff in this case purchased a ticket from the defendant railway company's agent at Pocahontas, Virginia, entitling him to passage on one of its passenger trains to

[82 W.Va. 272]

Cooper, West Virginia. He claims that with this ticket in his possession he boarded a train of the defendant company at Pocahontas, and placed his hand baggage in a seat in one of the cars thereof; that before he got on the train he had been in conversation with a minister of the gospel by the name of Gose, with whom, however, he had had no previous acquaintance. After taking his seat he observed Gose in another seat, and for the purpose of resuming the conversation with him he left his baggage and took the seat beside him. In going to the station of Cooper the train upon which plaintiff was a passenger Tmssed the station of Bluestone Junction. At some point between Pocahontas and Bluestone Junction the conductor came through the car and, as plaintiff contends, took up his ticket from Pocahontas to Cooper. Tins statement is fully borne out by the testimony of Mr. Gose who says that he and the plaintiff were occupying the same seat, and when the conductor came through he, Gose, gave the conductor his mileage to Bluestone Junction, and that the plaintiff surrendered his ticket to the conductor. This is denied by the conductor. When the train reached Bluestone Junction Gose alighted therefrom, and the plaintiff returned to the rear of the car and took his former seat. After the train left Bluestone Junction on its way to Cooper the conductor again came through the car and called upon the plaintiff for his ticket. The plaintiff informed the conductor that he had surrendered his ticket before reaching Bluestone Junction, and also gave the conductor information as to his changed position since leaving that station. The conductor denied this statement of the plaintiff and contended that he had not received any ticket or fare from him, and the plaintiff, it seems, was as insistent that he had surrendered his ticket to the conductor. While the controversy was going on the conductor continued to take up tickets from the passengers in the adjoining seats. It seems that when the conductor approached the plaintiff on this occasion and demanded his ticket plaintiff was reading a newspaper, and "while the controversy with the conductor was going on he folded this newspaper and held the same in his hand. Plaintiff says that when the conductor repeatedly charged him.

[82 W.Va. 273]

with not paying his fare he arose in his seat and insisted to the conductor that he had surrendered his ticket on the occasion referred to. and in order to he impressive...

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42 practice notes
  • Thomas v. Beckley Music & Elec. Co., No. 12083
    • United States
    • Supreme Court of West Virginia
    • November 21, 1961
    ...Brawley, 129 W.Va. 621, 41 S.E.2d 680; Toler v. Cassinelli, 129 W.Va. 591, 41 S.E.2d 672; Pendleton v. Norfolk & Western Railway Co., 82 W.Va. 270, 95 S.E. 941, 16 A.L.R. 761; Goodman v. Klein, 87 W.Va. 292, 104 S.E. The defendants contend that the trial court committed reversible error......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...e.g., Leach v. Biscayne Oil and Gas Co., 169 W.Va. 624, 628[, 289 S.E.2d 197, 199] (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277-78 [, 95 S.E. 941, 944] (1918) (“The object of such punishment is to deter the defendants from committing like offenses in the future, ......
  • Quicken Loans, Inc. v. Brown, No. 13–0764.
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...In Leach v. Biscayne Oil & Gas Co., 169 W.Va. 624, 628, 289 S.E.2d 197, 199 (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277–78, 95 S.E. 941, 944 (1918) ), we said:The object of such punishment is to deter the defendants from committing like offenses in the futur......
  • Feliciano v. 7-Eleven, Inc., No. 29564.
    • United States
    • Supreme Court of West Virginia
    • November 30, 2001
    ...that he had been such continuously for many years prior thereto."); Syl. pts. 1 & 2, Pendleton v. Norfolk & Western Ry. Co., 82 W.Va. 270, 95 S.E. 941 (1918) (Syl. pt. 1: "In a civil action to recover damages for an assault and battery, the defendant cannot justify upon th......
  • Request a trial to view additional results
42 cases
  • Thomas v. Beckley Music & Elec. Co., No. 12083
    • United States
    • Supreme Court of West Virginia
    • November 21, 1961
    ...Brawley, 129 W.Va. 621, 41 S.E.2d 680; Toler v. Cassinelli, 129 W.Va. 591, 41 S.E.2d 672; Pendleton v. Norfolk & Western Railway Co., 82 W.Va. 270, 95 S.E. 941, 16 A.L.R. 761; Goodman v. Klein, 87 W.Va. 292, 104 S.E. The defendants contend that the trial court committed reversible error......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...e.g., Leach v. Biscayne Oil and Gas Co., 169 W.Va. 624, 628[, 289 S.E.2d 197, 199] (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277-78 [, 95 S.E. 941, 944] (1918) (“The object of such punishment is to deter the defendants from committing like offenses in the future, ......
  • Quicken Loans, Inc. v. Brown, No. 13–0764.
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...In Leach v. Biscayne Oil & Gas Co., 169 W.Va. 624, 628, 289 S.E.2d 197, 199 (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277–78, 95 S.E. 941, 944 (1918) ), we said:The object of such punishment is to deter the defendants from committing like offenses in the futur......
  • Feliciano v. 7-Eleven, Inc., No. 29564.
    • United States
    • Supreme Court of West Virginia
    • November 30, 2001
    ...that he had been such continuously for many years prior thereto."); Syl. pts. 1 & 2, Pendleton v. Norfolk & Western Ry. Co., 82 W.Va. 270, 95 S.E. 941 (1918) (Syl. pt. 1: "In a civil action to recover damages for an assault and battery, the defendant cannot justify upon th......
  • Request a trial to view additional results

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