Vicksburg R. Power & Mfg. Co. v. Marlett

• Decision Date: 25 March 1901
• Citation: 29 So. 62,78 Miss. 872
• Parties: VICKSBURG RAILROAD, POWER & MANUFACTURING CO. v. JAMES R. MARLETT
• Court: Mississippi Supreme Court

29 So. 62

78 Miss. 872

VICKSBURG RAILROAD, POWER & MANUFACTURING CO. v. JAMES R. MARLETT

Supreme Court of Mississippi

March 25, 1901

FROM the circuit court of Warren county. HON. OLIVER W. CATCHINGS Special Judge.

Marlett the appellee, was the plaintiff and the railroad, etc company, appellant, the defendant in the court below. The opinion states the case.

Judgment reversed and remanded.

Miller, Smith & Hirsh, for the appellant.

The verdict in this case is excessive. Pine v. St. Paul City Railroad Co., 52 Am. & Eng. R. R. Cas., 584. No more force was used in the case at bar than in the one above cited, and the jury could not have been warranted in finding, in the language of plaintiff's third instruction, that unnecessary force was used.

The reporter is unable to find the brief for the appellee.

OPINION

TERRAL, J.

It has been held in this state that punitive damages may be recovered only in cases where the acts complained of are characterized by malice, fraud, oppression or wilful wrong evincing a disregard of the rights of others. There must be some element of one or more of the qualities or properties named, relating to the acts made the ground of the action before exemplary damages can be inflicted. It may be admitted that the ejection of Marlett from the car of appellant was wrongful, but it is clear from the evidence that it was not wilfully or intentionally wrongful. Conductor Dyer was executing a rule of the company, reasonable in itself, and would not honor the transfer presented by Marlett, because it was not punched as required by such rule, and in ignorance of any neglect of duty by the conductor from whom Marlett received the transfer ticket, and in so doing he cannot be said to have committed a wilful wrong. The conductor who furnished Marlett with the transfer ticket failed to punch it to denote its use, and therein committed a great wrong towards him, but whether the loss of his punch, which occasioned his omission of duty, was accidental or negligent does not appear. In either event, however, it could only be said that his act was negligently wrongful, and so could not become the basis for the infliction of exemplary damages--that is, it cannot be said that Conductor Dyer refused to accept the transfer ticket of Marlett, knowing that his duty required him to accept it. And unless such was the fact it cannot be said that his act imported a wilful wrong. For a wilful...