St. Louis Southwestern Railway v. Owings

• Decision Date: 24 June 1918
• Docket Number: 71
• Citation: 204 S.W. 1146,135 Ark. 56
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. OWINGS, ADMINISTRATRIX
• Court: Arkansas Supreme Court

204 S.W. 1146

135 Ark. 56

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. OWINGS, ADMINISTRATRIX

No. 71

Supreme Court of Arkansas

June 24, 1918

Appeal from St. Francis Circuit Court; J. M. Jackson, Judge affirmed on remittitur.

Judgment reversed and suit dismissed.

Thos S. Buzbee, H. T. Harrison and C. L. Johnson, for Dickinson Receiver, and Chicago, Rock Island & Pacific Railway Company, appellants.

1. The motion of the receiver to dismiss the action as to him should have been sustained. The receiver had been discharged and his duties terminated and he was no longer liable. 97 Ark. 373; 34 Cyc. 480; 156 F. 735; 53 N.E. 816; 7 Id. 537; 19 Id. 477.

2. The verdict for compensatory damages is excessive. Deceased was killed instantly and there were no children--only the widow. 57 Ark. 384; 117 Id. 198-209; 89 Id. 326-334; 87 Id. 443-445; 77 Id. 405. In no view should more than $ 10,000 have been allowed under the well established rules for compensatory damages.

3. The verdict for punitive damages is not supported by the evidence. There was no wilfulness, wantonness or indifference to consequences from which malice could be inferred. Mere gross negligence is not sufficient. 104 Ark. 93; 77 Id. 109; 87 Id. 127; 84 Id. 241.

Daniel Upthegrove, J. R. Turney and Hawthorne & Hawthorne, for St. Louis Southwestern Railway Company.

1. The service should have been quashed. There was no proper service of summons. Kirby's Digest, § 6072-4, 6045; act April 16, 1901.

2. The verdict is excessive as to compensatory damages. 77 Ark. 405; 60 Id. 550; 114 Id. 224; 89 Id. 326; 87 Id. 443; 90 Id. 398.

3. The verdict for punitive damages is not sustained by any evidence. 88 Ark. 200; 53 Id. 7; 77 Id. 109; 104 Id. 89; 87 Id. 127; 78 Id. 331. No malice or wilful, wanton or conscious indifference to consequences was shown.

Rhea P. Cary and G. T. Fitzhugh, for appellee.

1. The motion to dismiss as to the receiver was properly overruled. The cases in 97 Ark. 373 and others cited by appellant are not in point. Here the receiver was not discharged finally and unconditionally, but upon conditions stated in the order of discharge. Hopkins, Jud. Code, § 66; 49 F. 807; 163 U.S. 456; 10 Enc. U.S. S.Ct. 555, 562-5; 141 U.S. 327-9; 179 Id. 335; 177 Id. 584. There was an express reservation as to pending suits. 34 Cyc. 480; 123 F. 359; 80 P. 727, 730.

2. The verdict for compensatory damages is not excessive. 60 Ark. 550-9; 188 S.W. 589; 87 Ark. 443; 76 Id. 377; 105 Id. 533; 100 Id. 107; 99 Id. 265; 171 S.W. 115; 93 Ark. 564. See many cases cited in L. R. A. 1916 C. 820, et seq., and annotations. Also Watson on Damages for Personal Injuries, § 362; 155 Ky. 254; 50 L. R. A. (N. S.) 853-7.

3. The verdict for punitive damages is fully warranted by the evidence. The court's charge correctly stated the law. Reynolds, Trial Ev. 102-4; 174 Ill. 398; Jones on Ev. 134; 1 Chamberlayne, Mod. Law of Ev. § 826; 85 N.Y. 61; 84 Ark. 241, and others.

4. Service was valid on the St. L. S.W. Ry. Co. Kirby's Digest, §§ 6035, 6072; 45 Ark. 94; Kirby's Digest, § 6045, 7483, etc.

OPINION

SMITH, J.

Appellee is the widow and administratrix of the estate of Ben L. Owings, who was killed in a rear-end collision between a train of the Chicago, Rock Island and Pacific Railway Company, known as the Rock Island Railroad, on which he was a passenger, and a train of the St. Louis Southwestern Railway Company, known as the Cotton Belt Railroad. The collision occurred while the Rock Island train was stopping at Mounds, Arkansas, a station on the Rock Island railroad, and the Cotton Belt train, which collided with it, was a train operated by that railroad over the roadbed of the Rock Island railroad between Brinkley, Arkansas, and Memphis, Tennessee. Owings became a passenger at Forrest City on the evening of January 27, 1917, to Memphis for the purpose of spending with his wife the first anniversary of his marriage.

An unusually heavy fog rendered it impossible for the operatives of the train to see more than a few hundred yards even with the aid of the headlights, and the suit for damages was brought on the theory that the roads were jointly negligent and liable. It was contended that the Cotton Belt was negligent in running its train at an excessive speed under the physical conditions which existed at the time, and in the failure to observe a rule that one train shall not follow another closer than ten minutes; and that the Rock Island railroad was negligent in failing to take the proper precautions to notify the oncoming train that the train upon which deceased was a passenger was standing still at the station of Mounds.

At the time of the collision, and of the institution of the suit, the Rock Island Railroad was being operated by J. M. Dickinson as receiver under the orders of a Federal court, but the receivership had been discharged at the time of the trial. Upon discharging the receiver and restoring the property to its owners the court in which the receivership had been pending made the following order:

"Section 6. The prosecution and defense on behalf of the receiver, without cost or expense to him of any and all actions, suits or litigations to which he is or may be a party will be taken over and assumed by the railroad company, with the right, however, to control, continue or alter the policy of any such prosecution or defense, and with the further reservation that the payment of any final judgment in any action now pending or which hereafter may be rendered against the receiver in any such action now pending, shall be subject to such order as the court shall make relative thereto, either by way of reference to the special master heretofore appointed or otherwise.

"7. The Railway Company will indemnify and hold harmless, and will agree to indemnify and hold harmless, the receiver, his heirs, executors and administrators, from and against any and all claims, demands, suits, actions, litigations, liabilities, damages, costs, expense, or other matters whatsoever arising or accruing from all or any of his acts as receiver.

"13. That the defendant Railway Company shall take over and assume the defense of all actions and suits at law or in equity against the defendant Railway Company, and the receiver or receivers herein, or against either or any of them, or in which they, or any of them, are or is a party defendant, pending and undetermined at the date of the entry of this decree, in any court or tribunal; that the property and assets of the defendant railway company are to be liable for the amounts of any judgments eventually obtained in any of such actions and suits, but the payment of any judgment pending or which hereafter may be rendered against the Railway Company on any cause of action on or prior to June 25, 1917, shall be subject, however, to such order as said Illinois court shall make in the premises, either by way of reference to said special master or otherwise, and subject to the rights of defendant Railway Company as specified in this decree."

A motion was made to dismiss the suit upon the ground that--the receiver having been discharged--the suit could not thereafter be maintained against him.

A motion was filed on behalf of the Cotton Belt to dismiss the cause for lack of proper service against that railroad. The suit was brought in St. Francis County and service of process was had upon an agent of the railroad in Monroe County. Although the railroad operated a train through St. Francis County over the Rock Island Railroad Company's tracks, it maintained no agent in that county. This motion was overruled and proper exceptions saved.

Objection was made at the trial to the submission to the jury of the question of liability for punitive damages. And it is also insisted that the sum recovered as compensatory damages is excessive. The judgment was for $ 22,500 compensatory damages and $ 5,000 punitive damages. These questions will be discussed in the order stated, and other facts will be set forth in that connection.

The Rock Island Railroad Company relies upon the decision of this court in the case of O'Leary v. Brent, 97 Ark. 372, 134 S.W. 617, to support its contention that the judgment was improperly rendered against the receiver. But there exists a very important distinction in the facts between the two cases. There the receiver had been discharged finally and unconditionally. Here the discharge was upon the conditions stated in the order set forth above. There the receiver had fully discharged his functions. Here it was within the knowledge of the court and its contemplation, when the order discharging the receiver was made, that during the receivership of this vast system many causes of action had arisen which were then undetermined.

The case of Denver & R. G. R. Co. v Gunning, 33 Colo. 280, 80 P. 727, announces the principle which we think is controlling here. It was there insisted that an action against a receiver could not be maintained because the control of the property had passed from his hands and that his official liability ended with the termination of his official existence. But in that case, as in this one, the discharge of the receiver was conditional, and the court there said: "The property had passed from his hands to a purchaser, but upon the express condition that the legal liabilities incurred by him should be discharged by such purchasers. Evidently it was known to the court that actions were pending or obligations existed upon which suit might be brought, and that is why the decree respecting his discharge provided that it should not prevent him from defending actions then pending, or which might thereafter be brought. The court retained jurisdiction for the purpose of enforcing its orders against the...