St. Louis Southwestern Railway Co. v. Evans

Kirby, J., (after stating the facts). It is contended that there is no testimony, authorizing the assessment of exemplary damages in either case; and that exempláry damages can not be assessed except in cases where actual damages are shown to have resulted from the injury complained of. Our court has not determined whether exemplary damages can be recovered except as an incident to a claim or judgment for actual damages, although it was said in St. Louis, I. M. & S. Ry Co. v. Pickett, 70 Ark. 228: “Now, the general rule is that a separate and independent action can not be maintained for exemplary or punitive damages, but such damages are received, if at all, as an incident to the claim and judgment for actual damages.” But the facts of that case did not make it necessary to determine the question; neither do we regard it necessary to decide it here. In St. Louis, I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261, the court said: “There is much contrariety of opinion among the authorities as to what is essential in order to justify an infliction of punitive or exemplary damages. But this court is firmly committed to the doctrine that negligence alone, however gross, is not sufficient, and that there must be an added element of intentional wrong, or, what is its equivalent, conscious indifference in the face of discovered peril, from which malice may be inferred. Railway v. Hall, 53 Ark. 7; Arkansas & La. Ry. Co. v. Stroude, 77 Ark. 109; St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241. * * * In other words, to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice will be inferred.” As said in St. Louis S. W. Ry. Co. v. Myzell, 87 Ark. 127: “The court fails to find 'that element of wilfulness and conscious indifference to consequences from which malice may be inferred, which is a necessary basis to sustain an action for punitive damages.’ ” Railway v. Hall, 53 Ark. 7. In this case it was shown that there was a fire in the station in the room to which the agent had access, and that he readily agreed to build a fire in the stove in the waiting room when requested to do so by the mother of the plaintiffs, and immediately set about doing it. His effort was unsuccessful, and it is not clear whether he was notified thereafter and again requested to build a fire, although the mother stated that she asked the second time and complained afterwards that there was no fire in the waiting room. The day was cold, and the waiting room should have been kept comfortably heated, as the law requires, but it was not so apparent that the failure to make the fire as requested would, or might, necessarily result in such serious injury to the children from exposure to the temperature therein for the short time before the train’s arrival that the conduct shown on the agent’s part amounted to such wilfulness and conscious indifference to consequences from which malice could be inferred, and for that reason the case did not call for or warrant the assessment of exemplary damages. Arkansas & La. Ry, Co. v. Stroud, 84 Ark. 249; St. Louis S. W. Ry. Co. v. Myzell. supra; Little Rock Ry. & El. Co. v. Goerner, 80 Ark. 158. The conduct of the agent did not amount to more than gross negligence; and, although appellant was criminally liable for the violation of the statute requiring waiting rooms at the stations of railroads to be kept comfortably heated at all proper times and seasons, it can not be held to the payment of exemplary damages for the said gross negligence of its agent, under our decisions and the circumstances of this case. The jury found, upon proper instructions, that no actual damages were sustained, and, this court having determined that the proof does not support a verdict for exemplary damages, the judgment is reversed, and the cause dismissed.