Illinois Cent. R. v. Cox

Ethridge, J.,

delivered the opinion of the court.

This - case was before this court on a former appeal and is reported in 132 Miss. 471, 96 So. 685, where a full statement of the facts is set forth in the opinion. In the former case we held that a carrier of passengers may adopt and enforce rules requiring passengers to exhibit tickets before entering trains., and also held that under the laws of Tennessee where the action arose the law required the separation of white and colored passengers, and that where a sheriff was in charge of a person of the colored race that he was not entitled to ride in the white compartment, with his negro prisoner, but was entitled to ride in the colored passenger coach with his prisoner because his duty required him to- safely keep his prisoner, and it was also held that where a servant of the railroad company enforcing the rule for the separation of the white and colored races uses, insulting and offensive language to the passenger,,or uses undue violence in enforcing the same, the carrier is liable to the passenger for actual and punitive damages.

Oil a remand of the case to the court below, it was tried on,the sole question as to whether or not the conductor was insulting in enforcing this rule. The testimony of the plaintiff was substantially the same as in the former case as to this feature of the case. The plaintiff perhaps strengthened his testimony somewhat as to the effect the language had upon him, as shown by the following testimony:

“Q. Tell the' jury what effect that had upon you. A. Made me very mad, not being in position to resist it. I think I went home and got sick. I was naturally humiliated, as I had never been treated in that manner before. I had been riding on all sorts of trains with conductors and never run across one of this species before. I felt like in my official position, representing the state of Mississippi, I was entitled to courteous treatment, and I was paying my fare too. ’ ’

Among other assignments of error, it is assigned for error that the verdict is excessive; the verdict on this trial being for two thousand dollars. On the former trial the verdict of the jury was for one thousand four hundred ninety-five dollars for the alleged violation of the plaintiff’s right to ride in a white compartment with his prisoner, and also for the conversation with the porter in which he was requested to exhibit his ticket before entering the train, the porter being a negro, and for the insulting language now-relied on. The former decision eliminated the first two questions and left -the trial for the damages resulting for the insulting language used by the conductor in ejecting the plaintiff from the white compartment.

It is contended, first, that the plaintiff was only entitled to nominal damages and that no actual damage was sustained. We do not think that the plaintiff was limited to nominal damages and, although the court .below instructed that no actual damag’es were shown by the proof, we think plaintiff was entitled to some actual damage for being insulted. The plaintiff under his version was also entitled to punitive damages, as was held in the former opinion.

As the cause of action arose in Tennessee, and as the right of the parties, so far as the substance of the right is concerned, is governed by the law of Tennessee, and while we might not be bound by the same rules in determining whether there should be a reduction of damages where the judgment is deemed excessive! still we think it proper to look to the laws of Tennessee and consider the practice of that state in such matters.

In the case of Shelton v. C., R. I. & P. R. R. Co., 139 Tenn. 378, 201 S. W. 521, L. R. A. 1918B, 707, there was a recovery of seven hundred fifty dollars in that case where the railroad company permitted the use of a dining car carried in its train by both colored and white passengers by having a rule providing for their ’being served at different hourg. In that case a servant of the defendant railroad company announced in the white passenger coach the last call for dinner, and the plaintiff immediately went into the dining* car, took her seat, and ordered her meal. Before it was served, two colored women took seats at another table and ordered their meals, and the servants of the railroad company, being colored men, began to eat their meals, whereupon the plaintiff got up and left the dining car; but as she approached the door the employee of the railroad company in charge demanded that she pay for the meal she had ordered before she left the dining car. She pushed him aside and returned to the car where she was riding, and the servant followed into the car, and some words passed, which .the court stated might be considered insulting. In that case the court reduced the verdict to two hundred fifty dollars.

In the case of C., N. O. & T. P. R. R. Co. v. Harris, 115 Tenn. 501, 91 S. W. 211, 5 L. R. A. (N. S.) 779, the appellee was plaintiff in the court below and recovered a verdict for one thousand eight hundred dollars for the insulting conduct of the conductor growing out of the passenger not having a ticket at the time the conduct occurred. The plaintiff in that case applied for a ticket at one of the ticket offices of the carrier and was given a ticket to another point’ where there was a change of some kind with an order for a ticket at that point. When the train in which the plaintiff was riding reached that point, there was no one in the ticket office to issue the ticket for which she had an order, but she was told by an employee of the railroad company to go to another station a few miles further on, where she could procure he^ ticket. She was directed to give an order to the porter of the sleeping car, and did so, but on reaching the said station the train did not stop long enough for the porter to procure a ticket on the order. The' conductor went to the berth in the sleeping car where the lady had retired and rudely demanded a ticket. He opened the berth without giving notice, where the plaintiff was disrobed, and she felt greatly abused and humiliated by the conduct of the conductor of the Pullman car. The trial court reduced this verdict to one thousand five hundred dollars and it was sustained for that amount by the supreme court of Tennessee.

In the case before us the facts are far less aggravating than in the case last cited, and also far less aggravating than the language and conduct used in the case of Y. & M. V. R. R. Co. v. May, 104 Miss. 422, 61 So. 449, 44 L. R. A. (N. S.) 1138.

The jury in the former appeal of this case for the three elements of damage above referred to allowed one thousand four hundred ninety-five dollars, and taking all of the facts into consideration, we think the verdict here is excessive; but, if the plaintiff will remit one thousand dollars, the judgment will be affirmed, otherwise it will he reversed and remanded.

Affirmed, ivith remittitur.