Yazoo & M. V. R. Co. v. Mullen

• Decision Date: 24 November 1930
• Docket Number: 28743
• Citation: 131 So. 101,158 Miss. 774
• Parties: YAZOO & M. V. R. CO. v. MULLEN
• Court: Mississippi Supreme Court

131 So. 101

158 Miss. 774

YAZOO & M. V. R. CO. v. MULLEN

No. 28743

Supreme Court of Mississippi

November 24, 1930

Division A

1. TRIAL. Where instructions given fully submitted disputed issue to jury, refusal of other instructions on same point held not reversible error.

Passenger boarded train at S., La., with ticket to G., Miss. The conductor took passenger's ticket, and passenger claimed in suit for wrongful ejection, that conductor failed to return to him any portion of ticket, giving him only a hat check. When train reached V., conductor took hat check, and, when new conductor got on train at V. he ejected passenger on his failure to produce ticket or buy another. The court refused several instructions to effect that if, after punching ticket, conductor on S. division returned it to passenger, verdict should be for carrier, but another instruction informed jury before they could allow damages they must believe that conductor did not return any part of ticket, and that therefore passenger was put off train, and another instruction informed jury it was second conductor's duty to eject passenger if they believed the first conductor returned passenger's ticket and thereafter he neglected and refused to exhibit ticket.

2 TRIAL.

Defect in instruction assuming conductor did not return part of ticket to passenger and failure to charge on matter held cured by instructions requiring finding that ticket was not returned to passenger ejected.

3 TRIAL.

All instructions must be read together.

4. CARRIERS.

Conductor need not accept explanation regarding passenger's failure to produce ticket which is untrue although apparently reasonable.

5. CARRIERS.

Where conductor is in doubt regarding ticket, he can only refuse to accept passenger's explanation of absence of, or defect in, ticket at peril of liability of carrier, in case jury finds that explanation was reasonable and in fact true.

6. DAMAGES.

Punitive damages may be recovered only where there is malice, fraud, oppression, willful wrong, or gross negligence.

7. CARRIERS.

Where first conductor failed to return part of ticket to passenger and second conductor ejected passenger, he could not recover punitive damages.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, Second district, HON. W. H. POTTER, Judge.

Action by M. L. Mullen, Jr., by his father and next friend, against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed in part, and reversed in part.

Judgment affirmed in part, and reversed in part, and cause remanded.

May, Sanders, McLaurin & Byrd, of Jackson, and Chas. N. Burch, of Memphis, Tenn., for appellant.

In order to fix liability on the railroad company under the pleadings and the evidence in this case, it must be shown at the outset that plaintiff's ticket was not returned to him by conductor Storey.

The issue is clear and well defined for the jury, but the court refused to instruct the jury that on proof of the fact that the ticket was returned the railroad company would not be liable.

Under the pleadings and the facts, instruction No. 5 for plaintiff was erroneous for it amounted to peremptory instruction for the plaintiff.

Punitive damages are only inflicted where the defendant's negligence is willful, wanton or capricious or so grossly negligent as to amount to willfulness, wantonness or capriciousness.

Chicago R. R. Co. v. Scurr, 59 Miss. 456; Y. & M. V. R. R. Co. v. Hardie, 55 So. 971; G. & S. I. R. R. Co. v. Cole, 101 Miss. 411, 58 So. 208.

Brusqueness on the part of a conductor did not warrant the infliction of punitive damages.

Jackson Light & Traction Co. v. Taylor, 112 Miss. 60, 72 So. 856; Railroad Co. v. Martin, 140 Miss. 410, 105 So. 864; Railroad Co. v. Gill, 66 Miss. 39, 5 So. 395.

The punitive damages rule has been applied against the contention that it was applicable in a number of cases where the testimony showed negligence greater than shown in the present case.

R. R. Co. v. Scurr, 59 Miss. 456; R. R. Co. v. Gill, 66 Miss. 39; R. R. Co. v. Hardie, 55 So. 971; R. R. Co. v. Farrior, 115 Miss. 96; R. R. Co. v. Martin, 140 Miss. 410; Railroad Co. v. Cole, 101 Miss. 411; Lynchard v. Railroad Co., 107 Miss. 46.

Wells, Jones, Wells & Lipscomb, of Jackson, and S. P. Jones, of Marshall, Tex., for appellee.

Instructions on points which have been sufficiently covered by other instructions may properly be refused, although they are correctly drawn and applicable to the evidence. This is so whether the instruction requested is covered by the general charge or by special instructions granted at the request of either party, or whether the mode of expression is the same or different.

11 Ency. of Pl. & Pr., 288; 14 R. C. L. 751-756; Illinois Cent. R. R. Co. v. Gortikov, 45 So. 363.

In any case it is the duty of a conductor, when doubt arises as to a ticket, whether a general ticket or a special touring ticket with reduced rates, to listen to and accept any reasonable explanation offered, or take the chances.

Railroad Co. v. Harper, 83 Miss. 560, 35 So. 764; R. R. Co. v. Holmes, 75 Miss. 371, 23 So. 187; Railroad Co. v. Riley, 68 Miss. 765, 9 So. 443, 13 L. R. A. 38, 24 Am. St. Rep. 309; Railroad Co. v. Drummond, 73 Miss. 813, 20 So. 7.

The circumstances developed by the evidence for the plaintiff below in this case and believed by the jury make it a wilful wrong in the conductor to eject without listening to explanations.

Illinois Cent. R. Co. v. Harper, 83 Miss. 570, 35 So. 764, 64 L. R. A. 283, 102 Am. St. Rep. 469.

The following authorities justify the damages allowed in this case.

Y. & M. V. R. Co. v. Williams, 39 So. 489; Y. & M. V. R. Co. v. Fitzgerald, 50 So. 631; I. C. R. Co. v. Hawkins, 74 So. 775; I. C. R. Co. v. Harper, 35 So. 764; R. R. Co. v. White, 82 Miss. 120.

If negligence has been established, its degree, when material to the right of recovery, whether slight, ordinary, or gross, depends upon the evidence, and is ordinarily a question for the jury. So what evidence would or would not evince a wilfulness on the part of defendant to inflict the injury complained of must be left solely to the jury in each individual case. It is the duty of the court to rule as matter of law that gross or wilful negligence has not been proved where the evidence is uncontradicted and that is the only inference that can reasonably be drawn therefrom.

45 C. J., par. 852, page 1281.

So great is the effect of circumstances that the same conduct, under different circumstances or in different situations, may range from the highest degree of care to gross negligence.

45 C. J. 693; 21 Am. & Eng. Ency. of Law, 498; I. C. R. R. Co. v. Turner, 71 Miss. 402.

Argued orally by A. J. McLaurin, for appellant, and by S. P. Jones, for appellee.

OPINION

Cook, J.

The appellee, M. L. Mullen, Jr., by his father and next friend, instituted this suit against the Yazoo & Mississippi Valley Railroad Company, seeking to recover damages alleged to have been sustained by him by reason of being ejected from a passenger train of the appellant company, and, from a verdict and judgment for three thousand dollars, this appeal was prosecuted.

The declaration alleged, in substance, that on or about the 14th day of July, 1927, the appellee purchased a ticket entitling him to through passage over the railroad lines of the appellant from Shreveport, Louisiana, to Greenwood, Mississippi; that he boarded the appellant's passenger train at Shreveport, and shortly thereafter the conductor on said train took appellee's ticket and failed to return to him any portion thereof, giving him only a hat check to show his right to passage; that, just before the train reached Vicksburg, Mississippi, the said conductor again came through the train and took from him the said hat check which had been given to him near Shreveport, that he then asked the conductor what he would have to show at Jackson, Mississippi, where it was necessary for him to change trains; that the conductor rudely stated to him that he had returned the ticket to him if he had one, that he did not know but what the appellee was trying to beat his way past Vicksburg, that every day he had people trying to beat their way by claiming that they had lost their tickets; that the appellee was a minor about fifteen years of age; and that he was greatly humiliated, frightened, and embarrassed by the words and acts of the conductor, which were in the hearing of fellow passengers on the train.

The declaration further averred: "That at Vicksburg Mississippi, the agent of the defendant who had taken the ticket and hat check of the said plaintiff, M. L. Mullen, Jr., left the train and another agent, servant, or employee of the defendant took his place and began to discharge his duties; that said new conductor or agent approached the said plaintiff, M. L. Mullen, Jr., and requested from him a ticket and upon being informed that the other conductor had taken the said plaintiff's ticket and never returned it to him and had likewise retained said minor's hat check, the new conductor roughly advised the said plaintiff, M. L. Mullen, Jr., that he would have to buy another ticket or leave...