Pickens v. South Carolina & Georgia R. R.

The opinion of the Court was delivered by Mr. Justice Gary. The complaint sets forth two causes of action, the first of which is as follows: I. The first paragraph alleges the corporate existence of the defendant. “II. That at the said times, the defendant was operating in connection with its railroad, the Carolina, Cumberland Gap and Chicago Railroad, the same being a line of railway running from the city of Aiken, in this State, to the town of Edge-field, also in this State, and then owned by the Carolina, Cumberland Gap and Chicago Railway Company, tvhich was also a corporation created by and under the laws of this State. III. That on or about the 31st day of March, 1896, the plaintiff, for a valuable consideration, purchased of the defendant company at'the depot of the Carolina, Cumberland Gap and Chicago Railway, at the town of Edgefield, a round trip ticket, which entitled the plaintiff to passage from the town of Edgefield over the railway of the said Carolina, Cumberland Gap and Chicago Railway Company, via the [501] said city of Aiken, thence over the railway of the defendant company to the city of Augusta, in the State of Georgia, which said ticket was limited to a period of ten days from the date of issuance. And that the plaintiff did accordingly, on or about the ' day of March, 1896, board a passenger car of defendant at Edgefield, and in due course of travel was carried by virtue of said ticket to the said city of Augusta; and after remaining in said city several days, the plaintiff did, on or about the day of April, 1896, and within the period limited by said ticket, board the train of the defendant company, for the purpose of returning to the town of Edgefield upon said ticket, as was provided by the terms of the contract thereon stated; but that when the plaintiff reached the city of Aiken on the said return trip, the defendant, in disregard of its said contract as contained upon said ticket, and of the rights of the plaintiff, negligently failed to carry or to provide for the carriage of the plaintiff from said city of Aiken to the said town of Edge-field, and left her in said city of Aiken. And the plaintiff further alleges that by reason of the failure of the defendant to carry her back to said town of Edgefield, she was exposed to a severe storm of sand, wind and rain, which brought on her a severe attack of sickness, and caused her to be confined to her bed and house for upwards of two months, and caused her severe pains and suffering, and has thereby caused her health to be permanently impaired, so that she is not as strong and healthy as she was before being exposed to said storm, through the negligence of the defendant in not providing her with passage back to the town of Edgefield, as aforesaid, to the injury and damage of the plaintiff in the sum of $2,000.” The second cause of action is similar in its allegations to the first, except it alleges that the defendant’s wrongful act was wilful, grossly negligent, and in wanton and reckless disregard of the plaintiff’s rights, and that she was damaged in the sum of $5,000. [501] The jury rendered a verdict in favor of the plaintiff for $3,000, and the defendant appealed upon exceptions, the first [502] of which is as follows: “I. That his Honor, Judge Watts, the presiding Judge, erred in permitting the plaintiff, as a witness upon the stand, against the objection of the defendant, to testify that she was caught in a storm of sand and rain after she left the depot of the defendant company at Aiken, and to testify that she received injuries from said storm. For the reason, it is submitted, that this action is for a breach of contract and not a tort, and such damages are too remote, and would not enter into the proper measure of damages for the causes of action set forth in the complaint.” The first question raised by this exception is whether the action is for a breach of contract or a tort. The allegations of the first cause of action are appropriate to an action of tort arising from negligence, and the second cause of action is found upon a tort growing out of alleged wilfulness or intentional wrong. The cases of Head v. R. R. Co., 7 S. E. R. (Ga.), 217; Purcell v. R. R. Co., 12 L. R. A. (N. C.), 113, and Hansley v. R. R. Co., 32 L. R. A. (N. C.), 543, as well as many others that could be cited, show that an action of tort can be brought for such alleged violation-of duty; and the case of Hammond v. R. R. Co., 6 S. C., 130, which was an action by a passenger to recover damages for injury caused by defendant’s negligence, shows that the recital of the contract was not for the purpose of “founding a right to a recovery for the breach of the contract.” The Court further says: “It was not referred to as the foundation of his action. It may be that his complaint would not have been open to any exception, if he had omitted all reference to it. It was introduced to show that he was not an intruder on the train of the company. It was merely preliminary to the statement of his real cause of action, and if necessary to its support, he could have offered proof of it without setting it out in his complaint.” Parenthetically, we may remark that the cases of Purcell v. R. R. Co. and Hansley v. R. R. Co., supra, are in seeming conflict; but when carefully considered it will be seen that the Court reached the correct conclusion in each of [503] them. In the case of Purcell v. R. R. Co., the intentional wrong of the defendant was the direct cause of the injury, while in the case of Hansley v. R. R. Co., an efficient cause intervened, to wit: the breaking of the axle, which was not intentional. 2 The second question raised by this exception is whether the testimony therein mentioned should have been excluded, on the ground that it tended to prove damages that were too remote. The subject of proximate and remote damages has been prolific of discussion by text-writers and judges. It has frequently been before this Court for consideration, and it has been found difficult to formulate a general rule by which each case could be determined. In the case of Harrison v. Berkley, 1 Strob., 525, which was an action for damages against a shopkeeper, who sold liquor to a slave in violation of the statute, in consequence of which he became intoxicated and died from exposure, the rule is thus stated: “Only the proximate consequences shall be answered for (2 Greenleaf Ev., 210, and .cases there cited). The difficulty is to determine what shall come within that designation. The next consequence only is not meant, whether we intend thereby the direct and immediate result of the injurious act, or the first consequence of that result. What either of these would be pronounced to be, would often depend upon the power of 'the microscope with which we should regard the affair. Various cases show that in search of the proximate consequences, the claim has been followed for a considerable distance, but not without limit, or to a remote point (8 Taun., 535, Peak’s Cases, 205). Such nearness in the order of events, and closeness in the relation of cause and effect, must subsist, that the influence of the injurious act may predominate over that of other causes, and shall concur to produce the consequence, or may be traced in those causes. To a'sound judgment must be left each particular case. The connection is usually enfeebled, and the influence of the injurious act controlled, where the wrongful act of a third person intervenes, and where any new [504] agent, introduced by accident or design, becomes more powerful in producing the consequences than the first injurious act (8 East., i; i Esp., 48). It is, therefore, required that the consequences to be answered for should be natural as well as proximate (7 Bing., 211; 5 B. & Ad., 645). By this I understand, not that they should be such as upon a calculation of chances would be found likely to occur, nor such as extreme prudence might anticipate, but only that they should be such as have actually ensued one from another, without the occurrence of any such extraordinary conjuncture of circumstances, or the intervention of any such extraordinary result, as that the usual course of nature should seem to have been departed from. In requiring concurring consequences that they should be proximate and natural to constitute legal damage, it seems that in proportion as one quality is strong, may the other be dispensed with; that which is immediate, cannot be considered unnatural; that which is reasonably to be expected, will be regarded, although it may be considerably removed (20 Wend., 223).” Leaving the depot was the natural consequence of the defendant’s failure to provide transportation for the plaintiff from Aiken to Edgefield; and in view of the frequency and suddenness with which storms arise in this country, it cannot be said that the injury from the storm was “the intervention of any such extraordinary result, as that the usual course of nature should seem to have been departed from;” at least, this was a (question to be determined by the jury. More than one inference could have been drawn from the testimony, and when this is the case, it is always a matter for the consideration of the jury. This exception is overruled. 3 The second exception is as follows: “2. That his Honor erred in permitting the plaintiff, whilst a witness on the stand, against the objection of the defendant, to- testify that she was annoyed by the depot not having fire therein, and by the rude talking and singing and dancing and rude conduct generally of some negroes at and about [505] the depot, for the reason that there were no allegations in the complaint to which said testimony was responsive; the complaint simply alleging negligence in the failure to carry, and not negligence of any other kind, nor general negligence.” While there are no allegations in the complaint that the plaintiff suffered injury as the result of the defendant’s failure to provide suitable accommodations at the depot in Aiken,.the testimony was, nevertheless, competent as explanatory of the reasons that induced the plaintiff to leave the depot, thus tending to throw some light upon the causal connection between the alleged wrongful act of the defendant and the injury resulting therefrom. Furthermore, the second cause of action alleged that the defendant’s wrongful act was zmlful. In 16 A. & E. Enc. of Law, 392 and 395, it is said: “The element which distinguishes actionable negligence from criminal wrong or wilful tort, is inadvertence on the part of the person causing the injury. He may advert to the act of omission of which he is guilty, but he cannot advert to it as a failure of duty — that is, he cannot be conscious that it is a want of ordinary care — -without subjecting himself to the charge of having inflicted a wilful injury, because one, who is consciously guilty of a want of ordinary care, is, by implication of law, chargeable with an intent to injure, malice being but the ‘wilful doing of a wrongful act’ * * * Negligence and wilfulness are the opposites of each other. They indicate radically different mental states. The distinction between negligence and wilful tort is important to be observed, not only in order to avoid a confusión of principles, but it is necessary in determining the question of damages, since in case of an injury by the former, damages can only be compensatory; while in the latter, they may also be punitory, vindictive or exemplary.” The complaint alleged intentional wrong, and the plaintiff had the right to-introduce testimony having only a remote causal connection between the alleged wrongful act and the injury resulting therefrom, in order that the jury might have all the facts [506] and circumstances before them, in estimating the exemplary-damages. This exception is overruled. 4 5 The third exception is as follows: “3. That his Honor, the presiding Judge, erred in refusing to grant the nonsuit moved for on the part of the defendant at the close of the plaintiff’s testimony, for the reason, it is submitted, that there was not a particle of testimony to support said second cause of action, no testimony having been introduced to show that the alleged failure of the defendant to provide transportation for Mrs. Pickens to Edgefield was on account of gross negligence, wilfulness, malice or wantonness.” Before referring to the testimony, we will state some general principles relating to the subject of torts: In 16 A. & E. Enc. of Law, 389, actionable negligence is defined as “the inadvertent failure of a legally responsible person to use ordinary care under the circumstances in observing or performing a non-contractual duty implied by law, which failure is the proximate cause of injury to a person to whom the duty is due.” 2. Ordinarily, it is a question to be determined by the jury, whether the injury was caused proximately or remotely by the defendant’s wrongful act; and this is the rule in all cases when the facts are susceptible of more than one inference. 3. In actions of tort founded simply upon negligence, the injury must be the natural and proximate result of the defendant’s wrongful act. The rule is practically the same in actions for damages arising from a breach of contract. 4. In an action for a wilful tort,, the jury has the right to take into consideration two elements of damages: 1st, compensation for the injury sustained, as to which the plaintiff is confined to a recovery of such damages as flow naturally and proximately from the wrongful act; and 2d, the conduct of the defendant, for which the plaintiff is entitled to recover exemplary damages, sometimes called punitive or vindictive damages. The exemplary damages are in addition to the compensatory damages. Duckett v. Pool, 34 S. C., 311. There are cases which decide that when the wrongful act [507] was wilful, the plaintiff can recover for consequences of which the original wrongful act of the defendant was only a remote cause, but this is not sound in principle. The correct rule is that when the plaintiff is entitled to damages arising from defendant’s intentional wrong, the jury has the right to take into consideration those causes even remotely contributing to the injury, not for the purpose of giving damages for the injury thus caused, but that they may have in view, all the facts and circumstances of the case in Swarding the exemplary damages. 5. Wilfulness is the foundation of a recovery for exemplary damages, and such damages are not recoverable unless the wrongful act was wilful of intentional. Hansley v. R. R. Co., supra. We are aware that there are expressions in the case of Quinn v. R. R. Co., 29 S. C., 381, which are not in accord with this last proposition. That case, however, as to this question, is not sound in principle. Both the cases upon which it rests are in harmony with the foregoing proposition. We will now refer to the facts. It seems to be an undisputed fact that when the defendant sold the ticket, it knew that it would cease to operate the leased road before the time within which the plaintiff had the right to return upon the ticket would expire; and from this fact the jury might have inferred wilfulness 011 the part of the defendant, in failing to provide some suitable transportation for the plaintiff, even if they had been satisfied that the failure to operate the leased road was not wilful. The presiding Judge, therefore, properly refused the motion for a non-suit. 6 The fourth exception is as follows: “4. That his Honor, the presiding Judge, erred, it is submitted, in excluding, • upon the objection of plaintiff’s counsel, the testimony of Edwin Parsons and Wilbur Herbert, taken in New York and presented to the Court, they being witnesses on the part of defendant, for the reason, it is submitted, that said testimony was responsive to the issues raised in the case, and especially to the issues raised in the [508] second cause of action set up in the plaintiff’s complaint, and denied by the defendant in its answer, that the failure to provide transportation and to carry Mrs. Pickens from Aiken to Edgefield was because of gross negligence and wilful and wanton action of the defendant company.” This testimony is not set out in the “Case,” but the statements therein contained show that it was directly responsive' to the issue as to the alleged intentional wrong on the part of the defendant, which constituted at least part of the damages for which the jury rendered a verdict. It seems that the time fixed for the expiration of the lease had been agreed upon even before the plaintiff bought her ticket, and that at the time of the alleged injury, the defendant was'not operating the leased road. While the jury might have inferred wilfulness from other facts, still it was pertinent to the issue as-to wilfulness, for the defendant to show that the failure to operate the'leased road, at the time of the alleged injury, was not a wilful disregard of its duty as a common carrier, and that it was not in its power, at that time, to operate the said road. This exception-is sustained. 7 The fifth exception is as follows: “5. That his Honor, the presiding Judge, erred, it is submitted, in stating the allegations of the complaint, when he charged the jury as follows : ‘She further alleges that she boarded the train and went to Augusta, and within ten days time she took the train to return from Augusta to Edgefield via Aiken, and when she got to Aiken the railroad negligently refused to furnish her transportation.’ And in further charging the jury that ‘she alleged in the complaint that she was forced to hunt lodging in the town of Aiken, and by the negligence of the railroad company she was forced to do this, and while hunting lodging she was caught in a sand, storm.’ Whereas, it is submitted that the complaint did not allege that the defendant company refused to furnish Mrs. Pickens transportation, but that they simply failed to furnish transportation; and whereas, it is nowhere alleged in the complaint that Mrs. Pickens was forced by the negli [509] gence of the railroad company ‘to hunt lodgings’ in Aiken, the complaint saying no such thing, and this charge of the Judge, especially when taken in connection with his charge on the facts, tended to mislead the jury.” The expressions in this exception were used by the presiding Judge in his preliminary statement of the issues made by the pleadings, and any mistake in stating them could easily have been corrected if the matter had been called to his attention. Even if there was error, it was harmless, and this exception is overruled. 8 The sixth exception is as follows: “6. That his Honor, the presiding Judge, it is submitted, erred in charging the jury as follows: ‘1 charge you, as matter of law, that if you find from the evidence in this case that Mrs. Pickens got on the train in Augusta in ten days time and got to Aiken, and the railroad did not furnish her with any transportation from Aiken to Edgefield, then it is guilty of negligence, and she will be entitled to recover at your hands whatsoever she has sustained by the negligence of the railroad company,’ for the reason, it is submitted, that the Judge therein invaded the province of the jury granted to it under the Constitution, when he said what facts, or series of facts, would amount to negligence.” Negligence is ordinarily a mixed question of law and fact. The Court should instruct the jury as to the principles of law governing in such cases, and the jury should determine whether, in applying the law to the facts of the particular case, they constitute negligence. Samuels v. R. R. Co., 35 S. C., 493; Bridger v. R. R. Co., 25 S. C., 30. AYhenever the facts introduced in evidence for the purpose of proving negligence are susceptible of more than one inference, it must be determined by the jury, and in this case they were susceptible of more than one inference. It was error to charge that certain facts constituted negligence, when there were other facts brought out in evidence relative to this question. As this case must be remanded for new trial, it is deemed best not to discuss the facts in this respect, as it might tend to prejudice the [510] rights of one or the other parties to the action. This exception is sustained. 9 The seventh exception is as follows: “j. It is submitted that his Honor erred in charging the jury as follows: Tn other words, if the testimony satisfies you that the plaintiff arrived here in Aiken, and there was no way to carry her from Aiken to Edgefield, and she was forced to leave the depot and hunt lodging, and if in leaving the depot she was exposed to the inclemency of the weather, and by reason of that exposure sickness was brought on, and she suffered and was sick, and her health was impaired, then I charge you, as matter of law, if you believe that if it had not been for the negligence of the railroad in not providing her with transportation to Edgefield, which forced her to leave the depot to hunt lodging, and exposed her to the inclemency of the weather, then, I charge you, as matter of law, that she is entitled to whatever damages she has sustained by reason of that sickness, if you find that the railroad was the prime cause of that, the negligence of the railroad company. In other words, if you believe from the testimony that Mrs. Pickens arrived at Aiken, and if the South Carolina and Georgia Railroad Company had had cars to carry her on to Edgefield, and she could have remained at the depot till she got on the train, and would not have been exposed to that storm, but would have been in the depot or the train, not forced to leave the station or depot, and by reason of not having the train there she did go out, and was exposed and got sick, then I charge that the railroad company would be liable for damages, if it was the negligence of the railroad company that forced her to leave the depot and get in this storm; and she would be entitled to damages whatever she had sustained by reason of this negligence.’ For, it is submitted, that his Honor invaded the province of the jury in this charge in several particulars: In that he gave them practically his opinion, that she was forced to leave the depot and hunt lodging, by the railroad not having ■a train to take her away; and in that he especially told them, [511] in effect, that there was a storm, when one of the material questions of the case, and one disputed by the defendant, was that there was no storm. And, further, that he erred in laying down the measure of damages in this case, 'that Mrs. Pickens could recover damages for any injury which she received from any storm which may have existed.’ ” When the language of the presiding Judge in this exception is considered in connection with the entire charge, it will be seen that he did not invade the province of the jury in the particulars therein mentioned, and this exception is overruled. The eighth exception is as follows: “8. It is submitted that his Honor erred in charging the jury as follows: T charge you further, that if the railroad company was negligent in furnishing her transportation, and she was forced to hunt quarters, and in hunting quarters she encountered a storm, as alleged in the complaint, and that brought about sickness, she would be entitled to recover whatever damages, in your opinion, she would be entitled to;’ for that, it is submitted, there is no allegation in the complaint that the plaintiff was forced to hunt quarters, or that she attempted in any way to hunt quarters; and it is further submitted that this measure of damage laid down by his Honor was too remote upon the cause of action set forth in the complaint.” Standing alone, the part of the charge contained in this exception would be erroneous, as it does not state that the injury must be the natural and proximate result of the defendant’s wrong; but when this part of the charge is considered in connection with the whole charge, it will be seen that the presiding Judge impressed upon the jury these requirements of the law. This exception is overruled. The ninth exception is as follows: “9. It is submitted that his Honor erred in refusing to charge and in not charging the defendant’s first request to charge, as follows: First. 'As to the compensatory damages claimed by the plaintiff under the first cause of action set forth in the complaint in this action, the jury is charged that said cause of [512] action, as set forth in the complaint, complains of a breach of contract for not carrying Mrs. Pickens from Aiken to Edgefield, as it is claimed the defendant had undertaken to-do, and that no complaint is made as upon a tort. In such action for breach of contract, the measure of'damages is: “That only such damages should be given as were fairly within the contemplation of the parties, as the possible result of the breach of contract at the time it was made, or such as might reasonably be expected to arise naturally and directly therefrom.” In such cases damages can only be recovered as are produced directly by the act of the defendant, and no damages can be recovered that are produced by a remote cause. If there was a breach of contract on the part of the defendant, and Mrs. Pickens suffered any damages caused directly thereby, for such she can recover; but if she has suffered injury from any intermediate efficient cause other than being left at Aiken, she cannot recover damages therefor; and the jury is charged that if she has suffered injury because of a storm in which she was caught, away from the depot, that such is not a direct cause, but a remote cause, and she cannot recover damages therefor or flowing therefrom.’ Whereas, it is submitted that said first request so refused .is in accordance with law and the principles thereof applicable to this case.” It has been shown that the first and second causes of action are both founded upon tort and not upon a breach of contract. The presiding Judge could not have charged that if the plaintiff suffered injury because of a storm in which she was caught, that such is not a direct cause, without invading the province of the jury. This question is disposed of by what was said in considering the other exceptions. This exception is overruled. The tenth exception is as follows: “io. That his Honor erred, it is submitted,, in refusing to charge the defendant’s second request as follows: ‘Second: As to the damages claimed under the first cause of action, which is for a breach of contract, the jury is further charged that in this case it is [513] not claimed in the pleadings that any personal injury was inflicted on the person of the plaintiff by the defendant company, and such being the case, she cannot recover any damages for worry and mental excitement, and for inconvenience and annoyance, such as are felt at every disappointment of one’s expectations, nor for pain of mind; because the law is that no such elements of damage can be taken in consider-action unless there be physical injury.’ Whereas, it is submitted that the said second request so refused is in accordance with law, and the principles thereof applicable to this case.” Unless all the propositions of law embodied in a request to charge are correct, the presiding Judge does not commit error of law in refusing to charge as therein requested. As the first cause of action was not for a breach of contract, the presiding Judge did not err in refusing the request to charge, and this exception is overruled. It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to- that Court for a new trial. Mr. Chief Justice McIver concurs. Mr. Justice Pope concurs in the result.