Southeastern Express Co. v. Thompson

• Decision Date: 11 May 1925
• Docket Number: 24942
• Citation: 139 Miss. 344,104 So. 80
• Court: Mississippi Supreme Court
• Parties: SOUTHEASTERN EXPRESS CO. v. THOMPSON. [*]

104 So. 80

139 Miss. 344

SOUTHEASTERN EXPRESS CO. v. THOMPSON. ^[*]

No. 24942

Supreme Court of Mississippi

May 11, 1925

Division B

Suggestion of Error Overruled May 25, 1925.

APPEAL from circuit court of Clarke county, HON. C. C. MILLER Judge.

Action by A. M. Thompson against the Southeastern Express Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed and case remanded.

S. H. Terrall and R. M. Bourdeaux, for appellant.

We confidently submit that the facts of this case do not warrant the imposition of punitive damages at all. See Y. & M. V. R. R. Co. v. Hardie, 55 So. 967, and the numerous authorities therein cited. We further confidently submit that the instruction for the plaintiff is obviously and patently erroneous in that it makes it the duty of the jury to award punitive damages. The jury is left no discretion in the matter whatsoever. It is made mandatory on them to award punitive damages. This is clearly fatal error. R. R. Co. v. Burke, 53 Miss. 200.

H. F. Case, for appellee.

THE FACTS OF THIS CASE ABUNDANTLY JUSTIFY THE IMPOSITION OF PUNITIVE DAMAGES. Johnson v. Western Union Telegraph Co., 115 Miss. 884, 76 So. 738. In the case at bar the appellee charged in his declaration that the appellant through gross neglect and willful disregard of his rights and reckless violation of its duty refused and failed to deliver his package, and the jury has found the facts true as appellee alleged.

As to the proposition that the court committed fatal error in giving the instruction complained of, I desire to quote from case cited by appellant to-wit: N. O., etc., R. R. Co. v. Burke, 53 Miss. 200, at page 226.

THE facts in the case at bar fully warranted the jury in their finding. The appellant requested and was given the following instruction, which fully secured to it the application of the rule of law therein stated and which was vigorously argued to the jury, to-wit: "Defendant's instruction No. 4. 'The court instructs the jury for the defendant that the plaintiff cannot recover anything in this case unless the jury believes from a preponderance of the testimony that the defendant wilfully refused, through malice, wantonness or oppression to deliver the compass.'"

THE circuit judge committed no reversible error in this case in giving the instruction complained of which inadvertently advised the jury it was their duty to find for the plaintiff if the facts warranted punitive damages. The effect of this was cured by the defendant's instructions and the facts of this case warrant punitive damages under the express decision of this court.

HOLDEN, P. J. ANDERSON, J., took no part in the decision of this case.

OPINION

HOLDEN, P. J.

This is an appeal from a judgment for one hundred dollars against the Southeastern Express Company as punitive damages awarded the appellee Thompson, for willful negligence in failing to notify appellee that the shipment of a compass from New Orleans, La., to Quitman, Miss., had arrived there for delivery to him.

No actual damages were claimed. We have examined the evidence in the record which tended to show that the negligence of the agent of the express company was willful, and, without setting out the testimony in detail, we think it is a very close question as to whether or not the facts justify the allowance of punitive damages. However, we have reached the conclusion...