Illinois Central Railroad v. Dodds , 97 Miss. 865 ( 1910 )

McLain, O.

The plaintiff obtained a judgment in the circuit court pi Attala county for the sum of $175 against the defendant railroad company for damages, from which judgment the defendant railroad company appeals to this court.

Maria Dodds, the plaintiff, an old colored woman, living at Kosciusko, Miss., on the 24th day of December,, 1909, purchased a round-trip Christmas excursion ticket from defendant railroad company at Kosciusko to Brookhaven, Miss., and return. The object of her visit to Brookhaven was to pay a social visit and to spend Christmas with her friends, Le Koy Cooper and wife, colored, living at Brookhaven. The evidence in this case is clear and conclusive that she did purchase the ticket. After the purchase of the ticket,.she boarded the train of defendant and changed cars at Durant, there taking train No. 3 south for Brookhaven. Some time after this train pulled out from Durant, the conductor came around and took up her ticket, giving her check or station slip in lieu thereof. When the train blew its whistle for Brookhaven, the conductor came around and took up her slip, leaving her without ticket or check. She disembarked at Brookhaven, and was met by one of the Coopers, who took her out to his home in the edge of the city.

On arriving at Brookhaven, she states the weather was cold and the ground wet, and that she walked to Cooper’s house, and in doing so she got her feet wet, because her shoes were poor and had no bottoms. She further testifies, that realizing that she had no return ticket, she went to the railroad' station at Brookhaven the next morning and informed the agent that the conductor had taken up the return portion of her ticket, as well as the direct portion. The evidence shows that the agent treated her with kindness and courtesy, and told her that he would see the conductor of train No. 3 about the matter,. He did so', and after-wards informed the plaintiff that the conductor said that she had only given him one ticket, and that he had no return ticket. The plaintiff states that the day after Christmas, she was somewhat indisposed, and was sick on and off for several days. She attributes this sickness of hers to the frequent visits she had to make to see the agent in reference to this ticket; but, upon an' examination of this record, we find that this question of her sickness was eliminated from the jury by an instruction of the court, and such action of the court, we think, was correct under the facts. The plaintiff remained in Brookhaven for ten days or two weeks, when she returned home, borrowing the money to pay her passage from her friend Le Boy Cboper.

The record in this case nowhere shows that she was treated with any harshness, disrespect, or insult. She testifies herself in effect to this. Upon the trial of the cause below, the chief question tried before the jury was as to whether or not plaintiff had the right to recover punitive damages. The instructions given for the plaintiff submitted this question to the jury, while the court refused an instruction for the defendant to the effect that the plaintiff is not entitled to any punitive or vindictive damages.

' Upon an inspection of the record in this case, it is manifest that the proof did not warrant the rendering of a verdict for exemplary damages, nor the submission of that question to the jury. It is nowhere hinted or suggested in the record that the action of the conductor was wilful and wanton, nor does- it show a reckless disregard of the rights of the plaintiff, and his actions in this matter are wholly free from any element of insult or rudeness. Punitive damages are only allowable- when there exists some element of intentional wrong, or, in the absence of intention, there must be negligence so gross as to show a reckless disregard of consequences. The action of the conductor in taking up the return portion of plaintiff’s ticket was clearly through hurry and inadvertence, and the facts show that his actions were absolutely free from the elements of wilfulness, wantonness, and disregard to plaintiff’s rights. Of course, upon this occasion, he was derelict in duty, and for this defendant is responsible for all actual damages flowing from this negligence of the conductor; but it certainly affords no ground to inflict punitive damages.

As above stated, this is a case in which exemplary damages were not allowable, and the -court should have so informed the jury, as requested by the defendant in one of its instructions. In the case of Chicago Railroad Company v. Scurr, 59 Miss. 456, 42 Am. Rep. 373, the court says: “That in any and all actions for damages, where- the proof fails to show anything that will warrant an imputation of willfulness, recklessness, or rudeness, it is the duty of the court to inform the jury, when requested to do so, that they cannot inflict punitory damages. Not t,o do so, in a case free from doubt, would- be an abdication of judicial authority, and the permission of the jury to violate the settled principles of law.” In the same case the court further says: “For any dereliction of duty he is to- be dealt with, as to-the measure of damages, like other men. The powers of common carriers over the persons and property committed to their custody is very great; and hence the law imposes upon them the severest exactions, and a degree of responsibility unknown to other callings of life. But, though these- exactions are more numerous and stringent, a nonperformance of them brings to- the delinquent just that which a default of duty brings to all men ; that is to' say, full compensation for thoughtlessness and carelessness, exemplary punishment for recklessness, willfulness, or insult.”

For reasons assigned above, we think the judgment should be reversed and remanded.-

Per Curiam:.

For reasons above set forth by the commissioner, judgment is reversed and cause remanded.