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

• Citation: 188 Miss. 856,196 So. 230
• Decision Date: 20 May 1940
• Docket Number: 34152
• Parties: YAZOO & M. V. R. CO. v. SMITH
• Court: United States State Supreme Court of Mississippi

196 So. 230

188 Miss. 856

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

No. 34152

Supreme Court of Mississippi, Division A

May 20, 1940

APPEAL from the circuit court of Bolivar county, HON. WM. A. ALCORN JR., Judge.

Personal injury action by Van Smith against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Clinton H. McKay and Lucius E. Burch, Jr., both of Memphis, Tenn and Hugh F. Causey and Dugas Shands, both of Cleveland, for appellant.

Appellant was entitled to peremptory instruction.

There is no conflict in the testimony as to the authority of the train porter and proof is that train porter was not acting within scope of his authority in kicking appellee and forcing him from train, if he committed such acts.

6 LaBatts' Master & Servant (2d), p. 6704; Miller v Teche Lines, Inc., 175 Miss. 351, 167 So. 52; Hand v. Industrial Life & Health Ins. Co., 174 Miss. 882, 165 So. 616; Loper v. Y. & M. V. R. R. Co., 166 Miss 79, 145 So. 743; A. L. I. Restatement, Agency, Sec. 229.

Distinction between agent with general authority and servant with only menial duties to perform is uniformly recognized by this court.

Hand v. Industrial Life Ins. Co., 174 Miss. 822, 165 So. 616; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; White's Lbr. & Supply Co. v. Collins (Miss.), 191 So. 105.

The authority given by landlord to agent to ascertain condition of rented property and the care taken thereof by tenant and authority to request the removal of the tenant in the event the agent deems such course advisable does not authorize agent to commit an assault on the tenant.

Hahn v. Owens, 176 Miss. 296 168 So. 622; A. L. I. Restatement, Agency, Secs 231, 454; Loper v. Y. & M. V. R. R. Co., 166 Miss. 79, 145 So. 743; Miller v. Teche Lines, Inc., 175 Miss. 351, 167 So. 52; Natchez, C. & M. R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Hand v. Industrial Life Ins. Co., 174 Miss. 882, 165 So. 616.

In the case at bar the porter was not even given authority "to request in his discretion the appellee to remove from the premises of the master."

I. C. R. R. Co. v. Green, 130 Miss. 622, 94 So. 793; Loper v. Y. & M. V. R. R. Co., 166 Miss. 79, 145 So. 743; Western Union Tel. Co. v. Stacey, 162 Miss. 286, 139 So. 604; Wells v. Robinson Bros., etc., 153 Miss. 451, 121 So. 141; Houston v. Oppenheim et al., 166 Miss. 619, 145 So. 339; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Natchez, C. & M. R. Co. v. Boyd et al., 141 Miss. 593, 107 So. 1; Davis v. Price, 133 Miss. 236, 97 So. 557.

Where conductor was vested with sole power to determine who should be allowed to ride on train and who should be removed therefrom it was beyond the scope of the authority of a railroad brakeman to remove person from train and employer was held not liable.

Marion v. Chicago, R. I. & P. R. Co., 59 Iowa 428, 13 N.W. 415.

Where proof showed brakeman gave person permission to ride train and then injured such person employer held not liable because act of brakeman was beyond the scope of his authority.

Galaviz v. International, etc., R. Co., 15 Tex.Civ.App. 61, 38 S.W. 234.

Where street car was in charge of conductor but motorman ejected the deceased causing his death it was held employer not liable because motorman acted beyond scope of his employment.

Dorhshagen v. Union Depot, etc., 186 Mo. 258, 85 S.W. 344.

Burden of proof was on appellee to prove facts which would entitle him to recover and he must show that the train porter acted within the scope of his employment.

Dorhshagen v. Union Depot, etc., 186 Mo. 258, 85 S.W. 344; International, etc., R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 27 Am. St. Rep. 902.

The fact the train porter or conductor commanded appellee to get off train and he did so and was injured does not give him right to recover damages.

I. C. R. R. Co. v. Trail, 25 So. 863; Dowell v. Ry. Co., 61 Miss. 519; Dantzler, etc., v. Dry Docks Co., 119 Miss. 473, 81 So. 163; Bardwell v. M. & O. R. R. Co., 63 Miss. 574; N. O. & N. E. Ry. Co. v. Martin, 140 Miss. 410, 105 So. 864; Wells v. A. G. S. Ry. Co., 67 Miss. 29, 6 So. 737; N. O. J. & G. N. Ry. Co. v. Stolham, 42 Miss. 607; Y. & M. V. R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274.

Appellee's Instruction No. 4 authorizing jury to award punitive damages based on financial worth of appellant was reversible error.

Ga. Ry. Co. v. Baker, 125 Ga. 562, 54 S.E. 639, 7 L. R. A. (N. S.) 103, 114 Am. St. Rep. 246, 5 Ann. Cas. 484; Kneale v. Lopez, etc., 93 Miss. 201, 46, So. 705; Interstate Life, etc., v. Cooley, 105 Miss. 502, 117 So. 267; Robinson v. Spears, 21 So. 554; Lombard v. Martin, 39 Miss. 147; Y. & M. V. R. Co. v. Aultman, 179 Miss. 109, 173 So. 280.

Punitive damages were awarded in this case. Appellee sued for $ 1000 as compensatory damages and $ 1500 as punitive damages. Verdict was for $ 1500. Therefore, there was at least $ 500 punitive damages awarded which was based upon appellee's erroneous Instruction No. 4.

The proof submitted by appellee is unreasonable; the verdict of the jury is manifestly wrong and was based on bias, prejudice, or passion, or both.

W. B. Alexander, Jr., and A. B. Sparkman, both of Cleveland, for appellee.

The position taken by the appellee is twofold. First, we believe that the testimony in this case shows that the train porter at the time that the injury occurred was engaged in the scope of his employment and duties or in some duty incidental thereto; and second, that it is immaterial whether the train porter was so engaged at the time of the injury in some duty incidental to the scope of his authority or was employed in some duty within the scope of his employment, for the reason that a carrier of passengers will be liable for an assault upon a passenger by his servant, in any event, whether in committing such wrong the servant was acting within the scope of his employment or not, since such a wrong is a breach of the carriers contract to carry his passengers in safety and with good treatment.

39 C. J. 1282; A. L. I. Restatement Agency, Tent. Draft No. 5, p. 53; A. L. I. Rest. Agency, Sec. 454; So. Ry. Co. v. Hunter, 74 Miss. 444, 21 So. 304; Barmore v. Vicksburg S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 70 L. R. A. 627; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713.

A carrier of passengers is not, like a carrier of freight, an insurer of the safety of the passenger, but is bound to the highest degree of care and diligence for the safety and good treatment of the passengers upon the train. This has long been held to be the law in this state.

L. & N. R. Co. v. Compiretti, 137 Miss. 706, 102 So. 837; Y. & M. V. R. Co. v. Hawkins, 163 Miss. 505, 140 So. 873; St. Louis & S. F. R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L. R. A. (N. S.), 352; 13 C. J. S. 1280, Sec. 691; N. O. & N. E. R. Co. v. Jopes, 142 U.S. 18, 35 L.Ed. 919, 12 S.Ct. 109; Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462; St. L. & etc. R. Co. v. Jackson, 118 Ark. 391, 177 S.W. 33, L. R. A. 1915E, 668; I. C. R. Co. v. Gunterman, 135 Ky. 438, 122 S.W. 514; L. & N. R. Co. v. Bennett, 183 Ky. 445, 209 S.W. 558; White v. Norfolk & W. R. Co., 115 N.C. 631, 20 S.E. 691, 44 Am. St. R. 489; Vinot v. L. & N. R. Co., 17 La. App. 197, 134 So. 761.

The appellant complains that the giving of Instruction No. 4 for the plaintiff was error because the jury was instructed that they might take into consideration the financial worth of the defendant, if any, as shown by the evidence, in assessing punitive damages, if any punitive damages were assessed by the jury.

The appellant makes no point that this instruction is not proper in the event there is any evidence of financial worth in testimony. It is undoubtedly true in this state that financial worth may be considered by a jury in assessing punitive damages. But appellants say that it was error to grant this instruction for the reason that there was no such evidence before the court. The evidence of financial worth of the defendant before the court is found in the testimony of the conductor, A. C. Henry, who had worked for the company for 42 years as a conductor.

This testimony shows that the defendant has and operates 863 miles of lines of railroad, and while it is true that no valuation was placed upon it, it certainly shows that the defendant has and operates considerable property. It is also true that there was no testimony as to the liabilities of the defendant, which would reduce the worth of these 863 miles of lines of railroad. But this information is, of course, in the possession of the defendant and not in the possession of ...