Tucker v. Southern Railway

August 16, 1906. The opinion of the Court was delivered by This is an action to recover damages, alleged to have been sustained by the plaintiff, through the negligence and intentional wrong of the defendant, in failing to carry him to his destination, in accordance with its published schedules. The complaint alleges that on the 15th of February, 1904, the plaintiff, having important business in the city of Gainesville, Ga., made a business engagement therefor, on the 16th of said month, at 3 o'clock p.m., relying upon a contract with the defendant to transport him from Charleston to Gainesville, according to the published schedules of the defendant. That before purchasing his ticket, he inquired of defendant's agent whether said schedules were correct, and was informed that they were then of force. That according to the published schedule, train No. 15 would have Charleston at 3:20 a. m. daily, and passing through Columbia, Spartanburg and Greenville, would arrive at Atlanta at 3:15 p. m., and at Gainesville at 2:43 p. m. That the defendant, well knowing the plaintiff's business engagements and their importance, negligently and wilfully failed and refused to carry him to his destination promptly, and according to the published schedules, whereby *Page 90 he was delayed in reaching Gainesville until the night of the 16th of February; his business engagements were broken; he was delayed in his business three days and lost three days from his business; and was put to the further expense of hotel bills, to his damage in the aggregate of $2,000. The defendant denied all the allegations of the complaint. The jury rendered a verdict in favor of the defendant, and the plaintiff appealed upon exceptions which will be set out in the report of the case. Several of the exceptions are obnoxious to the objection that they merely contain excerpts from the charge, without specifying the particulars in which they are erroneous. But waiving this objection, none of the exceptions can be sustained. The first nine exceptions relate to the measure of damages, and, conceding that his Honor, the presiding Judge, erred in his statement of the rule, nevertheless such error was not prejudicial. The verdict being in favor of the defendant, shows that the jury found as a fact, that the defendant was not guilty of negligence or intentional wrong; because there was not only undisputed testimony of the fact that the plaintiff suffered damage, but, under the charge of the presiding Judge, the jury would have been compelled to render a verdict in favor of the plaintiff, at least for nominal damages, if they had found that there was either negligence or wilfulness. When the plaintiff was on the stand, he was asked: "Q. What is the value of your time as a business man, independent of profits — value day by day? A. If I had to put value on it, I would say $50 a day. Q. What were your hotel bills? A. They were nominal; about $3 a day." The hotel bills were, however, only allowed to be introduced in evidence for the purpose of showing expenditures made in transit. The presiding Judge charged the jury: "There is one kind of damage known to the law as damage implied; that is, the law implies damage from the breach of a legal duty, or *Page 91 the unlawful act of another. A common carrier owes a duty to the public, and the negligent violation of that duty is such an act as will imply damages. But in such a case, unless there is proof of some substantial damage, you can only give nominal damages; that is, a trifling sum, and awarded where a breach of duty or an infraction of the plaintiff's right is shown, but no serious loss is proved to have been sustained, given by a jury, not to compensate for the wrong, but to maintain the right; because for every violation, invasion or infringement of a legal right, the law implies damage." The principle is thus stated in the case of Mobley v. Ry.,42 S.C. 306, 310, 20 S.E., 83: "In an action to recover damages for the breach of contract, the first inquiry necessarily is, what was the contract, and whether there had been any breach of it, and until this has been determined, no question as to the amount or the measure of damages can possibly arise. Devereux v. Champion Cotton Press Company,17 S.C. 66. Where, therefore, as in this case, the first and controlling inquiry has been determined in favor of the defendant, as we have seen, no inquiry as to the damages can arise; and hence the several grounds of appeal, in which error is imputed to the Circuit Judge in his instructions to the jury as to the measure of damages, need not be considered; for even if error should be found therein (which we neither affirm nor deny), such supposed error cannot possibly affect the result." In the case of Devereux v. Champion Co., 17 S.C. 66, the Court uses the following language: "As the question of damages was secondary, and could not arise until the question of injury had been determined in the affirmative, and a verdict was generally for the defendant, it is not clearly perceived how the plaintiff was prejudiced, even if the Judge committed error in indicating the mode of ascertaining the damages in case there should be a recovery. In the case ofO'Brien Fryer v. Bound et al., 2 Spears, 501, it was held that `the jury having found the contract of the defendants to be joint, the charge of the presiding Judge that the jury *Page 92 might find against one, even if a misdirection was immaterial, as it could not have influenced the verdict.' Vide 1 Bailey, 330, 8 Rich., 103; 3 John, 533, 10 John, 451." See, also, Hill v. Ry. Co., 43 S.C. 461, 21 S.E., 337. The tenth exception assigns error in charging that "there must be wilfulness, wantonness, recklessness and utter disregard of the rights of the other person, before the party that inflicted the injuries can suffer damages at the hands of the jury by way of punishment, to deter him and others in the future. The exception fails to state in what particular the charge was erroneous, but the appellant's attorney, in his argument, contends that if any one of these four elements are present, it is sufficient for exemplary or punitive damages. This exception cannot be sustained, for the reason that each of said elements creates the same liability. The case would be quite different if the presiding Judge had included the element of negligence. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. MR. JUSTICE WOODS. I concur in the result only, entertaining the opinion that, standing by itself, there was error in the charge that there could be no recovery for punitive damages without proof of "wilfulness, wantonness, recklessness and utter disregard of the rights of the other person." Wilfulness, wantonness and recklessness are not the equivalents of each other, and the presence of any one of them is a sufficient basis for punitive damages. But the Circuit Judge had previously so explicitly instructed the jury to that effect, that the use of and instead of or in this connection must have appeared to the jury to be a mere inadvertence. Besides, there was no finding of even nominal damages, and hence it seems clear an erroneous instruction as to punitive damages could not have been prejudicial. *Page 93