Webb v. Atlantic Coast Line R. R. , 76 S.C. 193 ( 1907 )

February 28, 1907. The opinion of the Court was delivered by The plaintiff, a traveling salesman, brought this action for damages, actual and punitive, alleged to have accrued from delay in the delivery of a trunk of sample dry goods, received by the defendant at Florence, S.C. as baggage to be carried to Manning, S.C. and recovered judgment for one hundred and twenty-five dollars.

On motion of the defendant, the Circuit Judge struck out certain allegations of the complaint as irrelevant and redundant, but refused to strike out other allegations, and this refusal is made the first ground of appeal. The allegations which the Circuit Judge refused to strike out are marked by brackets in the complaint as reported, but their significance as well as the point involved will be understood from the allegations themselves without setting out in detail here the connection in which they were used. They are: "and in utter disregard of plaintiff's rights," "and through defendant's wanton and wilful negligence, carelessness and recklessness in not returning plaintiff's said trunk," "and was not able to sell any dry goods in consequence of the delay," "thereby causing him annoyance and inconvenience, and causing him to lose much time and business." There is no ground for the objection that these allegations related to damages, "special, remote and speculative," not in the contemplation of the parties when the trunk was checked. The complaint charges, "that the said agent knew that saidtrunks contained samples, and that it was necessary for him to have them along with him for the sale of goods in hisregular business, and that any delay or damage to said sample trunks would cause him delay or damage in his business."

Knowledge of the trunk being a salesman's trunk of samples taken with him on a business trip included knowledge that delay in its delivery would result in interruption of his business and loss of time and custom. The case, therefore, falls entirely out of the principle of Wehman v. Railway, 74 S.C. 296, andWesner White v. Railway, 71 S.C. 211, 50 S.E., 78, 89.

In changing the words "and business" to "from his business" the Circuit Judge did nothing more than make the complaint consistent in all of its parts after certain portions had been stricken out.

The position that punitive damages cannot be recovered in an action of this sort is equally untenable. Cases like this stand on a very different footing from ordinary actions against a party owing no duty to the public for damages for a tort founded on contract — such for example as an action of deceit. The defendant is a public service corporation. Those having baggage to transport have no choice and must of necessity entrust it to a common carrier. The common carrier must take and transport it with reasonable dispatch, not only by reason of an express or implied contract to do so but as a duty in the proper discharge of which the public is concerned. Hence, any wilful or wanton failure to transport baggage with reasonable dispatch is not only a breach of contract, but a wilful and wanton violation of a public duty of great concern to the people at large. The injury liable to come to the public from the toleration of acts of wanton violence or wrong is perhaps the main basis for the allowance of punitive damages in any case. Few cases are to be found where punitive damages have been discussed or allowed for the wilful or wanton failure to deliver baggage, but we have found no case where they have been held not recoverable.Cary v. Express Co., (Tex.) 40 S.W. 845; Lyon v. Railway (Pa.), 16 Atl., 607, 2 L.R.A., 489; Sticker v.Leathers, (Miss.) 13 L.R.A., 600.

The alleged errors in the admission of testimony furnish no sufficient basis for the reversal of the judgment. The plaintiff proved without objection his average yearly earnings and expenses, and interruption of his business for five days in consequence of the defendant's failure to deliver his trunk promptly. It is within the knowledge of all men that there are seasons of activity and of inactivity in all lines of wholesale mercantile business; and there could certainly be no reversible error in allowing the plaintiff to prove his two periods of activity, because knowledge by the defendant that the plaintiff was a traveling salesman imported knowledge of periods of activity in his business. It may be remarked in relation to this testimony, and also that introduced in the attempt to prove the loss of sales to particular customers, that any error in allowing it to be introduced seems harmless. The jury could not have based their verdict on the inability of the plaintiff to sell to either of the merchants mentioned by the plaintiff, for one of them afterwards purchased from the plaintiff, and the other was unable to say why he did not buy from him. As to actual damages, therefore, the inference seems fair the verdict must have rested on the general interruption of the plaintiff's business as a traveling salesman, and not on the failure to make particular sales.

In admitting the question. "How many times in the year, and about what time of the year do you usually purchase your stocks of dry goods and notions?" The Circuit Judge said: "Well, this gentleman says he told them to check his sample trunks. They haul these gentlemen and their baggage day in and day out. Would it be stretching it too far to say that the railroad knows what they are traveling for? They are not traveling for their health, and paying excess baggage. I will let it come in." As we have already seen, the Circuit Judge in his remarks merely stated that which the defendant could not fail to infer from the fact that the plaintiff was traveling as salesman with a sample trunk. The exception on this point is without merit. Willis v. Telegraph Co., 73 S.C. 383,53 S.E., 639.

Exception is taken to the charge of the Circuit Judge to the effect that punitive damages might be allowed for the injury if it was the result of such gross carelessness as would amount to wantonness or to utter disregard of the plaintiff's rights. It is true, that punitive damages are not recoverable for gross negligence,Watts v. Railway Co., 60 S.C. 74, 38 S.E., 240; but the language here used made it clear that the Circuit Judge was referring not to negligence merely gross, but to negligence so gross and reckless of consequences as to assume the nature of wantonness or willfulness; and he was correct in saying this would warrant the recovery of punitive damages.Proctor v. Ry. Co., 61 S.C. 189, 39 S.E., 351;Boyd v. Ry. Co., 67 S.C. 218, 45 S.E., 186.

The close and important point in the case, which was made both by motion for nonsuit and request to charge is, whether there was any evidence of wantonness or wilfulness warranting submission to the jury of the cause of action for punitive damages. There was a delay of about four days in the transportation of the trunk from Florence to Manning, due to these acts and omissions of the defendant's agents which the defendant admitted to be negligent: The baggage agent on the train made the mistake of putting off the trunk at Lake City instead of at Lanes, the junctional point, giving as an excuse that he had a very full car, a poor light, and no help in handling the baggage. The acting agent at Lake City, where the baggage was put off, either because of indifference or because he was not furnished adequate help to manage the business, failed to check up the baggage turned over to him by the regular agent who was temporarily absent; and so failed to discover the trunk that had been put off there by mistake. The agent at Lanes failed to check up his list, and hence did not discover the plaintiff's trunk was missing. One of these omissions to perform a known duty might be attributed to mere negligence, but three such acts or omissions in the short distance between Florence and Manning, tended to show an indifference on the part of the agents of the railroad company to the rights of those whose baggage it had undertaken to carry.

We yield ready assent to the view that punitive damages are in most cases to be allowed with great caution, because there is no measure for them more accurate than the jury's general sense of righteousness; and because such damages are often sought for purposes of speculation in reliance on expected favoritism of the jury. Hence, the testimony upon which they are claimed is scrutinized by courts with great care in consideration of motions for nonsuit or for the direction of a verdict. While this is a case very close to that line, often so difficult to distinguish between mere negligence and that indifference which shows a wanton disregard of private rights and public duty, we agree with the Circuit Judge, taking the testimony as a whole, there was warrant for the jury to find indifference to manifest duty from which it might infer wantonness or recklessness.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.