Teche Lines, Inc. v. Lott
| Decision Date | 28 October 1940 |
| Docket Number | 34271 |
| Citation | 198 So. 292,189 Miss. 490 |
| Court | Mississippi Supreme Court |
| Parties | TECHE LINES, INC. v. LOTT |
Suggestion Of Error Overruled November 25, 1940.
APPEAL from the circuit court of Copiah county, HON. J. F. GUYNES Judge.
Action by Mrs. Roy Lott against Teche Lines, Inc., for damages for refusal to permit plaintiff to take passage on bus. From a judgment for plaintiff, defendant appeals. Reversed and judgment directed.
Reversed and judgment here for appellant.
Hugh V Wall, of Brookhaven, for appellant.
The defendant was not required to accept the plaintiff as a passenger where there was not safe room.
4 R. C L. 1064, sec. 511; Atwater v. Delaware L. & W. R. R. Co., 44 N. J. L. 55, 2 A. 803, 57 A. S. R. 543; Evansville & C. R. R. Co. v. Duncan, 28 Ind. 441, 92 Am. Dec. 322.
Counsel for plaintiff evidently appreciate that it is the settled law that the bus company would not be liable where it refused or declined to accept a passenger when all of the seating capacity of the bus had already been taken, and they undertake to take this case out of that line of decisions holding that the bus company was not required to accept the plaintiff as a passenger if all of its seating capacity was taken, which in this case is undisputed, by saying that a passenger on the bus offered to give the plaintiff his seat, and by saying that plaintiff offered to stand in the aisle. If the man had given to the plaintiff, under the undisputed testimony in this case, his seat, he would then have been forced to stand in the aisle. This would have subjected the defendant to an extra hazard, because it is shown that standing in the aisle is dangerous in the event that the bus was forced to make an emergency stop. It is true that there were at that time other people standing in the aisle, but it is also true that the adding of one other passenger standing in the aisle would have increased the danger and the law did not require the defendant in order to accommodate the plaintiff, to consent to this man standing in the aisle, and even if it was true that the bus driver declined to permit the man to stand in the aisle so as to accommodate plaintiff, he was clearly within his legal right and the bus company would not be liable for damages. Especially is this true when it is undisputed that the bus driver thought that there was another bus immediately following his bus that would accommodate the plaintiff. Therefore, there should have been a peremptory instruction for the defendant.
13 C. J. S. 1041, sec. 538; Brumfield v. Cons. Coach Corp., 240, Ky. 1, 40, S.W.2d 356; State v. Delaware L. & N. R. R. Co., 48 N. J. L. 55, 57 Am. Rep. 543; Anderson v. G. & S. I. R. R. Co., 147 Miss. 164; L. N. O. & T. R. R. Co. v. Patterson, 69 Miss. 697, 22 L. R. A. 259; Delaware R. R. Co. v. Duncan, 92 Am. Dec. 322.
There is no legal evidence in this case upon which a verdict of a jury could be based.
13 C. J. S. 670; Western A. R. R. Co. v. Jackson, 93 S.E. 547, 21 Ga.App. 50; Wilcox v. Richmond R. R. Co., 17 L. R. A. 804; Hot Springs R. R. Co. v. Deloney, 45 S.W. 351, 65 Ark. 177, 67 A. S. R. 913; Miller v. So. Ry. Co., 48 S.E. 99, 69 S.C. 116; Davenport v. Chicago M. & N. R. R. Co., 103 Wash. 645.
There can be no recovery for actual, punitive or exemplary damages.
5 Miss. Digest, Damages, and pocket edition; Doherty v. Miss. Power Co., 178 Miss. 204; Morse v. Duncan, 14 F. 396; McCann v. Cockern, 153 Miss. 237; Hood v. Moffett, 109, Miss. 757, L. R. A., 1916B, 622; Am. R. R. Co. v. Bailey, 142 Miss. 622; I. C. R. R. Co. v. Dodds, 97 Miss. 865; I. C. R. R. Co. v. Ramsey, 157 Miss. 83; Y. & M. V. R. R. Co. v. Mullen, 158 Miss. 774.
There can be no recovery for special damages.
There can be no recovery for nominal damages.
13 C. J. S. 1250, sec. 673; Louisville R. R. Co. v. Spurling, Ann. Cas., 1916A, 487.
There can be no recovery for mental pain and suffering.
Buenzle v. Newport Amusement Assn., 14 L. R. A. (N. S.) 1242; Smith v. Sandborn State Bank, 30. L. R. A. (N. S.) 517; Birmingham Water Co. v. Vinter, 51 So. 356; M. & O. R. R. Co. v. Freeman, 141 Miss. 7; Miss. Power Co. v. Byrd, 160 Miss. 71; G. & S. I. R. R. Co. v. Beard, 129 Miss. 827; Doherty v. Miss. Power Co., 178 Miss. 204.
M. S. McNeil and R. O. Arrington, both of Hazlehurst, for appellee.
The only point in this case worthy of consideration is whether or not the court erred in giving the plaintiff an instruction on the subject of punitive damages. If the court was in error on this subject then the case should be reversed. On the other hand, if it was a proper case for a punitive damage instruction, then the case should be affirmed.
It has been held that an action for being refused transportation, in accordance with contract, or for refusal to put the passenger off at his destination, is for breach of contract, and the damages recoverable are those recoverable in such an action. Nevertheless, the breach of the contract may also involve a tort, that is, a breach of the carrier's common-law duty, and in such case other damages than those incident to breach of contract may be recovered. The technical form of the action is, in general, immaterial, recovery being allowed in accordance with the wrong indicated by the facts as alleged.
13 C. J. S. 1244, sec. 669; N. O. J. & G. N. R. R. Co. v. Hurst, 36 Miss. 665.
It was the duty of the defendant to receive and transport the appellee as a passenger on this bus.
13 C. J. S. 1041, par. 538.
The refusal of the appellant was wrongful and gave rise to a cause of action.
13 C. J. S. 1045, par. 539.
Punitive damages or exemplary damages may be recovered in addition to actual damages where the carrier's refusal is wilful or accompanied by violence or bad faith.
13 C. J. S. 1046, par. 540.
The case of I. C. R. R. Co. v. Hawkins, 114 Miss. 110, 74 So. 775, settles the question raised by counsel that damages for mental pain and suffering are not recoverable in the instant case. Where a case justifies the infliction of exemplary damages a recovery for mental suffering was proper.
This is not an action for the breach of a contract, but for a wilful tort, and there is no decision we are able to find in our reports in which the recovery of damages for mental suffering has been denied where there was gross negligence tantamount to wilfulness.
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