St. Louis, Iron Mountain & Southern Railway Co. v. Taylor

• Decision Date: 08 July 1907
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TAYLOR
• Court: Arkansas Supreme Court

104 S.W. 551

84 Ark. 42

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TAYLOR

Supreme Court of Arkansas

July 8, 1907

Appeal from White Circuit Court; Hance N. Hutton, Judge; reversed.

STATEMENT BY THE COURT.

This is an action instituted by W. L. Taylor against the St. Louis Iron Mountain & Southern Railway Company to recover damages alleged to have been sustained by the plaintiff on account of the willful and wrongful act of a servant of the defendant. The facts relied on by the plaintiff to sustain a recovery are substantially as follows:

The plaintiff was a traveling salesman for a wholesale dry goods firm, and carried on his trip a number of sample trunks weighing in the aggregate more than the amount allowed free to passengers. He made a trip to Judsonia, Arkansas, a station on the line of defendant's railroad, in the course of his business, and when he was ready to depart from the town on defendant's train he got into a controversy with defendant's station agent at that place concerning the weighing and checking of his baggage. The agent at first refused to check the baggage because the time was short before the arrival of the train, and when the plaintiff threatened to report him he told plaintiff to "report and be damned," called him a "thief," a "dirty cur, and other vile names, and, after the plaintiff struck him with an umbrella, picked up a gun in a threatening attitude toward plaintiff. He made no attempt however, to shoot, and the plaintiff sustained no physical injuries in the encounter. The agent afterwards checked the baggage, and the plaintiff departed with his baggage on the train he had intended to take.

The only kinds of injury set forth in the complaint, or which the testimony tends to show, are mental anguish and humiliation resulting from the insulting remarks made by the station agent.

The court gave the following, among other, instructions, over the objections of the defendant:

"If the jury believe from the evidence that the plaintiff went to the depot of defendant company for the purpose of taking passage on its train, and at the time he had a mileage ticket for his passage and an excess baggage ticket, and exhibited the same to the agent, Ford, then he was entitled to all the privileges and protection of a passenger, and it was the duty of the defendant company through its agent, Ford, to treat him civilly, politely and if you believe from the testimony that when the plaintiff went to the depot, he had a mileage ticket and excess baggage ticket, and presented the same to the agent, and that he intended to take passage on the defendant's train, and the agent, Ford, treated him in an insulting manner by imputing to him dishonest conduct, and otherwise willfully, wantonly or maliciously insulted or assaulted him, then the plaintiff is entitled to recover, and in arriving at damages to which he is entitled. you should allow him a fair pecuniary compensation for such damages as were the direct consequence of the act complained of, for any mental excitement, anguish of mind, sense of shame and humiliation, if any, which he may have suffered by reason of the wrongful conduct of the agent, Ford."

The court also refused to instruct the jury, as requested by the defendant, that there could be no recovery for mental anguish, shame and humiliation resulting from the insults offered.

Plaintiff recovered judgment below for the sum of $ 4,500 damages, and the defendant appealed.

Reversed and remanded.

T. M. Mehaffy and J. E. Williams, for appellant.

1. There is error in that part of the first instruction which permits the jury to consider an assault upon the appellee as an element of damage, whereas the proof shows that, although after he was struck by appellee he picked up a gun, he made no attempt to use it. Kirby's Digest, § 1583; 49 Ark. 179; 57 Am. St. Rep. 945; 53 Id. 354; 11 Id. 830.

2. The instruction is also erroneous because it allows the jury to consider, as an element of damages, mere mental pain and anguish unaccompanied by physical injury. 64 Ark. 538; 76 Ark. 348; 67 Ark. 123; 69 Ark. 402; 65 Ark. 177; 69 Ark. 85.

J. W. & M. House, for appellee.

The relation of passenger and carrier being established, the passenger is entitled to damages for mental anguish caused by insulting and abusive conduct of the carrier's agent towards the passenger, though unaccompanied by physical injury. 3 Mason, 245; Fed. Cas. No. 2575; 1 East, 106; 103 Ill. 549; 3 Cliff. 416; 106 Mass. 180; 6 Ind.App. 205; 80 Md. 23; 62 Me. 90; 62 N.J.L. 286; 4 Elliott, Railroads, § 1638; 90 N.Y. 588; 8 Bush (Ky.), 147; 85 Ky. 547; 36 Wis. 657; 133 N.Y. 261; 18 Ill.App. 620; 62 F. 440; 54 L. R. A. 752; 59 Id. 590; 12 Id. 339; 66 Id. 618; 46 ld. 549; 31 Id. 390; 69 Miss. 421; 102 Ga. 479.

MCCULLOCH, J. WOOD, J., dissenting.

OPINION

MCCULLOCH, J., (after stating the facts.)

Many questions are presented in the record for our consideration, but the controlling one, for the purpose of disposing of this case here, is whether or not the plaintiff is entitled, under the circumstances shown in the case, to recover damages for mental anguish and humiliation, unaccompanied by physical injury. The evidence shows, sufficiently to warrant a finding, that the station agent of the railway company, while the plaintiff was in the station for the purpose of having his baggage checked preparatory to taking passage on the train, and while he was conferring with said agent concerning the checking of his baggage, willfully and without provocation insulted him by the use of profane, threatening and defamatory language. We do not determine whether the plaintiff should be held, under the circumstances, to be a passenger in the sense that the railway, company owed him the same duty of protection from willful acts of its servants that it owes to passengers on trains. We prefer to dispose of the questions of the defendant's liability for the mental suffering and humiliation as elements of damages, disconnected from any physical injury, on the broader ground, treating the plaintiff, for the purpose of testing this question, as a passenger in the most complete sense.

The precise question involved has never been determined by this court. In St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 66 S.W. 661, the question was mentioned but expressly reserved for decision, the court saying: "It is certain there could be no recovery for mental anguish unaccompanied by personal injury, where there was no willful, wanton or malicious wrong done. Whether there could be recovery for mental suffering alone, we reserve for decision."

In Peay v. Western Union Telegraph Co., 64 Ark. 538, the court held, with reference to the liability of a telegraph company for negligent failure to promptly transmit and deliver a message, that there could be no recovery for mental anguish independent of and disconnected from a physical injury. And in Richardson v. Davis, 76 Ark. 348, 89 S.W. 318, we held that there could be no recovery of damages by a female from an individual for mental anguish on account of an indecent proposal made to her. The court said in the opinion that mental suffering and humiliation are not elements of damages, citing the Peay case.

In Texarkana & Ft. Smith Railway Co. v. Anderson, 67 Ark. 123, 53 S.W. 673, the court held that in an action by a passenger to recover damages for being wrongfully carried beyond her destination, where no physical injury resulted or other loss or injury except mental anxiety and suffering, there could be no recovery for the mental suffering. In that case there were no facts or circumstances indicating malice or willfulness, and no insult offered to the plaintiff, but the mental suffering was claimed to have resulted from the anxiety on account of the delay in getting back to her destination, and in being compelled, during the period of the delay, to remain in the company of a crowd of partially intoxicated, boisterous and profane passengers.

So, we see that it has been decided by the court that a corporation is not liable for mental suffering, unaccompanied by physical injury, inflicted by the negligence of its servants in the performance of a contract, there being no element of willfulness in the commission of the negligent act complained of; and that an individual is not liable for the wrongful infliction of mental suffering, unaccompanied by physical injury, even where there is the element of willfulness in the commission of the act complained of.

It only remains, therefore, to decide whether a railway corporation is liable for such mental suffering and humiliation, unaccompanied by any physical injury, inflicted upon passengers by the wrongful act of one of its servants wilfully committed. The questions already decided by this court, as above stated are sought to be distinguished from the facts of this case on two points, viz: First, that the act complained of was committed by a servant of the railway company in violation of the contractual duty which the carrier owed to its passengers to afford them protection from either the negligent or wilfully wrongful acts of its servants; and second that the injury resulted from the willful act of the servant of the carrier. We do not think that the distinctions are sound. It is true that a carrier owes to its passengers the absolute duty of protection against either the negligence or willfulness of its servants. St. Louis, I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289, 101 S.W. 412, and authorities cited.

But the carrier in such case can be required to respond only in such damages as the law takes heed of as proper elements of damages. If mental suffering and humiliation, unaccompanied by any physical injury, are not accounted in law as...