Gulf & Ship Island Railroad v. Cole

Mayes, C. J., delivered the opinion of the court. Mrs. Cole brought suit against the Gulf & Ship Island Railroad Company for damages, alleged to have been occasioned her by reason of the fact that she was allowed to get off of the train, or was negligently put off, by the servants of the company at the wrong station. In the declaration filed both actual and punitive damages are claimed, and on the trial an instruction was given for the appellee, authorizing the jury to award punitive damages. The jury returned a verdict for three thousand dollars, from which judgment the railroad company prosecutes an appeal.' The chief contention in this court for appellant is that the facts did not warrant the court in authorizing the jury to assess punitive damages. The facts are substantially as follows: Mrs. Cole lived about six miles415 north of Magee, in Simpson county, and about twenty miles from a little station on the' Gulf & Ship Island Railroad, called Low, and about the same distance from another little station on this same road, called Milltown. Milltown and Low are some two or three miles apart; Milltown being east of Low and nearer Soso, the point where Mrs. Cole boarded the train. It appears that •Mrs. Cole was not familiar with the surroundings at Low or Milltown; while she had passed through twice, she had never been there. It is shown that on the 29th day of January, 1911, Mrs. Cole bought a ticket from Soso to Low, Milltown being the station nearest her starting point, and about three miles from Low; the train, of course, reaching Milltown first. Mrs. Cole had been on a visit to a sick sister at Soso, and on the above date was returning home, and was expecting to he met at Low by a son and nephew, with a team to take her home that evening. Mrs. Cole'had with her a baby about seven months old, a basket, a cloak, and a small grip. When the train reached Milltown, she says “the train stopped, and the conductor came through and hollowed ‘Low,’ and when he got where I was, he picked up my baggage, and I followed him, and he set my baggage down on the ground and got hack on the train a?id it pulled out.” She then says she stood a while, thinking she was at Low, as she had never been there before. Gathered at the stopping point of the train were some hoys, and Mrs. Cole asked them if there was any team there to meet a lady. There were no houses at Mill-town : nobody living there, and no depot and no shelter. The day was fair, hut cool. She arrived at Milltown late in the evening, about 4:30 or 5 p. m. She asked the hoys if they would go with her to where she could get shelter; and one of them said he would go with her to Mr. Charley Butler’s'house, as it was right on his way home. She states that she had known Mr. Butler,. — 416 — and after going to his home she got him to telephone to her home folks that she was there. In going to Mr. Butler’s house, she had to go through the millhouse and a little swamp; that there was just a muddy pathway up a plank to the millhouse and on out through the gate into the Mg road. In going to Butler’s which was about a mile, or a little over, she carried the baby and part of her baggage, and the boy- carried a part of it. The son received the telephone message and came on over where she was for her, reaching there about 10 or 11 o’clock that night. Mrs. Cole did not stay with Charley Butler, but stayed at Mr. Alvy Butler’s, and was well taken care of, and reached her home about 1 o’clock the next day. Mrs. Cole states that on account of the walk, etc., she was made sick, had cold, tonsilitis, and fever, and acMng bones, and remained in this condition about a week. After Mrs. Cole reached Charley Butler’s, she went to Mr. Alvy Butler and his wife, on the invitation of the latter, because she had formerly lived by them, and they wanted her, and because they said they had more conveniences to take care of herself, son, and team than at Charley’s, Mrs. Cole states that she lived twenty miles from Low, and if she had gone to Low and gone out in the buggy to her home she would not have reached home as early as she reached the home of Mr. Butler. This is substantially the testimony of Mrs. Cole. The testimony of the boys who were at the Milltown station is of little importance in the consideration of this case. They merely verify the fact that Mrs. Cole got off at Milltown, and that the conductor helped her off, and that one of them went to Mr. Butler’s with her and helped her carry some of the baggage. None of the witnesses claim that there was any impoliteness, rudeness, or misconduct on the part of the servants .of the railroad company; the cause of complaint being that — 417 — Mrs. Cole was put off at the wrong station, as she says, by the conductor. "While it is not important, in the consideration of this case, to consider the testimony of appellant on the question involved, since if appellee’s testimony warranted the submission of the question of the allowance of punitive damages to the jury, this case must be affirmed, still, in order to more completely state the case, it is not amiss to say that the conductor was put upon the stand, and by him it was shown that the train was due at Low at 4:38 p. m., and was about on time. This would place it at Milltown ten or fifteen minutes earlier. The conductor states that the train stopped at Milltown, and two other passengers got off, a Mr. Beavers and wife. The conductor states that after reaching Low, as he had a lady and child to put off there, he spoke to the flagman, and that employee told him the lady got off at Milltown; and the conductor states that this was the first he knew of it. The conductor denies that he assisted Mrs. Cole off at Milltown, and denies that he called any stations, but stated that it was the flagman’s duty, and when the flagman reached Milltown he called “Milltown,” not “Low.” The testimony of the flagman is about the same as that of the conductor. The flagman states that when he reached Milltown he called that station by its proper name, and several passengers got off; that he helped Mrs. Cole off. Mr. Beavers testified that he was on the train and got off at Milltown with his wife; that Milltown is a regular flag station; and that he remembers seeing a lady get off there. Beavers also states that there is quite a difference between the appearance of the stations of Low and Milltown; that at Low there is a depot, sawmill, and several buildings; at Milltown there is nothing but a store and an old sawmill. The testimony of Mrs. Beavers is about the same as that of her husband, except — 418 — that she had a conversation with Mrs. Cole and Mrs. Beavers says that Mrs. Cole looked a little lost. Mrs. Beavers testified that she asked her, “Are you looking for some one to meet you here?” and Mrs. Cole replied, ££ I am looking for my husband. ’ ’ The facts of this case, when considered only on the testimony of Mrs. Cole, make no case for the infliction of punitive damages. The very most that can he said is that the servants of the railroad were only negligent. If it be true that Milltown was called Low by the flagman, or hv the conductor, not a fact surrounding the case warrants the inference that, in miscalling the station, the servant of the company acted with recklessness, or in willful or capricious disregard of the rights of appellee. In the case of Y. & M. V. R. R. Co. v. Hardie, 55 South. 967, 34 L. R. A. (N. S.) 742, we had occasion to review all the cases on the subject of punitive damages, and to restate the rule on this subject in this state. We shall not go over that ground again. The case of Y. & M. V. R. R. Co. v. Hughes, 50 South. 627, is a similar case to this, except that its facts make the case a stronger one for the allowance of punitive-damages than the case now before the court; hut this court held, in the Hughes case, that no punitive damages could he recovered. An examination of the original record in the Hughes case shows this. It appears that Mrs. Hughes sued the Tazoo & Mississippi Valley Railroad Company for ten thousand dollars actual and punitive damages, and recovered a judgment for two thousand five hundred dollars. The facts show that about 4:30 o’clock on Sunday afternoon Mrs. Hughes boarded the Yazoo & Mississippi Valley train at Vicksburg, hound for Natchez, and that she had never been on the line before, except orce, and was thoroughly unfamiliar with the stops and stations on the line. The ticket carried her from Vicksburg, via Harriston, to Natchez; and — 419 — at Harriston she was to make a change. She had with her a suit case, a little girl five years old, and a baby nine months old. Further stating the case in the language of Mrs. Hughes, she was asked on the trial: “What happened after you left here [Vicksburg]? State whether or not the conductor took up your ticket, or punched it. Yes, sir; took my ticket and gave it back to me. What did you do, and what happened? Well, I sat there and taken care of my babies and my.self until the flagman, I judge from his looks, came in and called out the station, and I didn’t understand what he said, and I said, ‘Is this Harriston?’ I said, ‘Is this Harriston?’ And he said, ‘Yes, ma’am,’ and he pushed the door and came up to me, and I said, ‘Is this Harriston?’ And he said, ‘Yes, ma’am,’ and he picked the suit case and the little girl and hustled to the door with them, and I came behind them. What did you have? The baby; and when I got down off of there the train had pulled out, and I saw á bunch of negroes around, and I said, ‘Is this Harriston?’ to one of them, and he. said: ‘No, ma’am; you are a long ways from Harriston.’ And I said: ‘What shall I do, and where shall I go?’ And I said, ‘Is there any'white people around here?’ And he said: ‘No, ma’am; the:re is one white man at the store, and he will soon be gone.’ And I got the little girl and hustled over to the store, and told him what had happened, and he said, ‘Go in the office and sit down,’ and said, ‘When I get through, I will see what I can do for you.’ And when he got through his wife suggested the only thing to be done for me was to drive me back home, as there was no one to stay with; and he said, ‘You better drive back home and get a start in the morning again.’ Were you driven back? Yes, sir. What time did you get to your home? About 8 o’clock, I think. About that time, as near as you remember? Yes. • Just tell the jury what — 420 — your feeling was; what yon experienced when you saw the train had gone, and yon were put off at Glass Station, instead of Harriston? I became so nervous and excited and shocked almost to death to think I had been put off that hour in the evening with two little children, almost helpless and at night, with nothing but negroes around, and I said: ‘What in the world will I do? Will I have to stay here all night with these negroes?’ And when I got home I couldn’t eat or sleep, and the next day, even although I left next day on my journey, but I really was not able to, but because I was compelled to go. You say that night-— How did you suffer? I had a severe headache and nervous. I couldn’t sleep, and I had to get up and light the lamp; and every time I closed my eyes I was being put off the train, and I had to get up. And I didn’t sleep any for two or three nights, because the idea of being there with the two babies made me feel terrible; a baby nine months old having to be out at night and among strangers, and no place to go, was nearly more than I could stand.” It is needless to further quote from the testimony in the Hughes case. The court, in the Hughes case, speaking through Judge Whitfield, said: “Manifestly this is no case for the imposition of punitive damages. It was therefore fatal error to refuse the defendant the sixth instruction, charging the jury not to award punitive damages.” The case now on trial cannot be affirmed without overruling the Hughes case, and we feel no inclination to do that. When a passenger is negligently carried by his proper station, or put off or allowed to get off at the wrong station, no case for punitive damages is made, unless there is some reckless, wanton, willful, capricious, or wrongful act done on the part of the agent or servant of the road. But appellee relies on the case of Davis v. Y. & M. V. R. R. Co., in 95 Miss. 540, 49 South. 179. In the argu — 421 — rnent of the Hughes case, counsel in the case relied on the Davis case, and cited it in his brief. The same judge delivered the opinion in both cases, and, although the Davis case was decided long prior to the Hughes case, this court took the view that the two cases were entirely distinct. The Davis case carried the doctrine of the right to recover punitive damages as far as it should be carried in this character of case. In the Davis case, the facts show that Davis was a passenger, and requested to be put off at a flag station called Etta. The conductor had never been over the particular line before, because it was new, and yet, assuming to know all about it, told Davis that the train was going over a new route a short distance from the old, but the flag stations on the hew route had corresponding names, and that he would put him off at the new station of Etta, only a short distance from the old. Davis explained to the conductor that a buggy would meet him at Etta, and the conductor told him that the distance was short, and he could walk to the old station and intercept the buggy. It was after dark, and the station, Etta, was called, and the conductor told Davis they had reached Etta. Before getting off, however, Davis told the conductor that he was not familiar with the ground, and wanted to be certain that this was his station. Although the facts show that the conductor knew nothing about it himself, yet he assured Davis he was there, and allowed and thus induced Davis to leave the train. Davis attempted to exercise every precaution to be put off at his proper station, and emphasized this to the conductor, and yet, despite all this, the conductor put Davis off at the wrong station; and the court held, under these circumstances, that the facts showed such utter disregard of the duty of the conductor that the question should have been submitted to the jury as to whether or not punitive damages should have been allowed. In this case, there is — 422 — nothing of this in the record. • Mrs. Cole was simply put off, or was allowed to get off, at the wrong station by the mere neglect of the servants in charge of the train. The case of Southern Ry. Co. v. Phillips, 136 Ga. 282, 71 S. E. 414, is very similar to this. The facts show that Mrs. Phillips sued the Southern Railway Company for damages for being put off at the wrong station. It appears that she bought a ticket and boarded the passenger train at Brunswick for Empire. In making this journey, it was necessary for her to change cars at Jesup. She was accompanied by a small child, and carried a valise. After she had been traveling for some time, and as the train was slowing up for a station, the conductor announced that it was the place for Mrs. Phillips to leave the train, at the same time taking up the'baggage and directing her, with the child to follow him. Acting upon the direction of the conductor, she left the train, which, as soon as she disembarked, rapidly moved away, leaving her in darkness. The place where she was put off was Odessa, a place five miles south of Jesup, without depot accommodations or other accommodations for her safety. It was ten or eleven o’clock at night when she left the train, and for some time the only persons she saw were some negroes. She was very much frightened, and after some time had elapsed a white boy was called to her by the negroes, whom she asked if there were any white people in the community; and he finally secured a place with his mother for her to spend the remainder of the night. Mrs. Phillips contended that the conductor, in causing her to leave the train at a point other than the right place, in the nighttime, was guilty of gross negligence and wanton and willful misconduct. When the conductor took up her ticket, she asked him if she did not have to change at some place between Brunswick and Empire, and he said, “Yes; you change at Jesup” — and told her the train was due to arrive at — 423 — Jesnp about ten o’clock. Near that time, the conductor came through the .train and called out the.' station, and she understood him to say Jesup. She was intending to ask some one before the train stopped if that was Jesup, when the conductor took up her valise and hatbox, and said, “Here is where you get off;” and when the train stopped the conductor assisted her to alight. She thought she was at Jesup until the train had left. She saw some negroes around the station, and also a white lady, who got off of the same train she did. When she got off of the train, she saw a switch light, and started in that direction, thinking it was the depot. She asked the lady who got off of the same train with her' where she was going, and she replied she was going home; and she asked her where to go to take the next train, and she' said, “Ho down there and ask them,” waiving to the place where some negroes were. She asked them, where to go to take the next train, and they replied there' would be no train until the next morning, and said: “You think you are at Jesup, but this is Odessa.” She inquired where she could spend the night and'they directed her to the captain’s house. She was invited to spend the night with a lady, and did not go to sleep' until about four o’clock in the morning on account of the fright brought about by being put off of the train under the circumstances she narrated; and the next morning she boarded the train, and was carried to her destination on the same ticket. The servants in charge of both trains treated her civilly and politely, and the question in the case was whether or not she was entitled to punitive damages. • ’ • The trial court instructed the jury that they might assess punitive damages, and the court in reviewing the case and reversing• it, said: “We are at a loss to see, from the facts as narrated by the plaintiff, any circumstances of aggravation authorizing the recovery of pun — 424 — itive damages. According to her own testimony, the agents of the railway company were civil and courteous in their treatment of her, and her being put off .at the wrong station was the result of a mistake. It is her contention that the conductor told her that she had arrived at the place where she was to change cars, and invited her to get off, and that she got off at the wrong station on his invitation. If the conductor’s version of the incident be accepted as true, the plaintiff misunderstood the station, announced ‘Odessa,’ to be ‘Jesup,’ and voluntarily left the train. Be that as it may, it is clear from both viewpoints that the plaintiff’s leaving the train at Odessa was the result of a clear mistake. There is not a line in the evidence which indicates that any servant of the defendant company was influenced by any improper motive, or impelled by any desire to injure or to willfully discommode the plaintiff. The charge on the subject of punitive damages should not have been given. ’ ’ The case of Moss v. Mo. Pac. R. R. Co., 128 Mo. App. 385, 107 S. W. 422, from the Missouri Court of Appeals, is directly in point. The evidence in the Moss case showed that the plaintiff was a stranger on the'line of railway, and that, while entitled to passage to a station called Mora, he was told by defendant’s servants to get off at a place called Dumpville, five miles distant. It was night and raining, and plaintiff, being a stranger, accepted the statement of the servant in charge of the train as to Dumpville being Mora and got off, and did not discover the mistake until the train had left. The court' held that this was no case for exemplary damages. To the same effect is the case of C. C. C. & St. L. Ry. Co. v. Quillen, 22 Ind. App. 496, 53 N. E. 1024, and the case of Tennessee Central R. R. Co. v. Brashears, Guardian, Kentucky Court of Appeals, 97 S. W. 349. After a most thorough search of the authorities, we have not fonnd one case that authorizes the recovery of — 425 — punitive damages under the facts of this case. The Davis case, in 95 Miss. 540, 49 South. 179, is nearer so holding than any case we have been able to find, or that counsel for appellee cite. The instruction authorizing the jury to assess punitive damages in this case was erroneous, and the case must be reversed and remanded. Reversed and remanded.