Illinois Central R. v. Messina

Cook, P. J., delivered the opinion of the court. This case was affirmed by this, court in an opinion reported in Yazoo & M. V. R. Co. v. Messina, 67 So. 963. An appeal was taken by appellant to the supreme court of the United States, and our judgment was reversed by the supreme court of the United States (240 U. S. 395, 36 Sup. Ct. 368, 60 L. Ed. 709), and the cause remanded to this court for further proceedings. We here quote the opinion of the supreme court of the United States: “This is an action for personal injuries suffered by the defendant in error while upon a train running from Mississippi to Tennessee. He had paid no fare, but was upon the tender, as he said, by permission of the engineer. The engineer had notice that the water was high between Beatty and Sawyer, and over the track at Sawyer. After passing Beatty the train was going at a rate variously put as thirty-five to fifty or sixty miles an hour when it ran into the water and was thrown from the track. The plaintiff was caught between the tender and a car and badly hurt. The plaintiff got a judgment for. ten thousand dollars, which was sustained by the supreme court. At the trial the jury were instructed that the defendant railroad was presumed to be negligent, and that if the evidence left it doubtful it was their duty to find full damages for the plaintiff. The judge refused to instruct them that the engineer had no authority to permit the plaintiff to ride on the train ‘ at the place he was in’, but the request for this instruction was based upon the company’s rules, not upon the act to regulate commerce. The supreme court, however, discussed the act of Congress and held that it did not apply to the case. “By section 1 of the act [U. S. Comp. St. 1913, sec. 8563], as amended by Act June 29, 1906, ch. 3591, 34 Stat. 584, and still in force, any common carrier violating the provisions against free transportation is guilty of a misdemeanor and subject to a penalty, and any person other than those excepted ‘who' uses any such interstate [886] . free transportation is made subject to a like penalty. No doubt tbe enactment had somewhat more formal uses especially in view, but we see no reason for limiting the prohibition to them. The word 'such,’ like ‘said,’ seems to us to indicate no more than that free transportation had been mentioned before. We cannot think that if a prominent merchant or official should board a train, and by assumption and an air of importance should obtain free carriage, he would escape the act. We are of opinion, therefore, that the act was construed wrongly. Assuming, as it has been assumed, that the defendant’s liability was governed otherwise by state law, it seems doubtful under the state decisions whether the plaintiff would have been allowed to recover, had the court been of opinion that the act of Congress made his presence on the train illegal. Western Union Telegraph Co. v. McLaurin [108 Miss. 273] 66 So. 739 [L. R. A. 1915C, 487]. And although there are expressions in the opinion below that raise a doubt, the fact that the supreme court thought it necessary to construe the act indicates that the construction was material to the result. For this reason the judgment must be reversed.” It is contended by appellant that, in obedience to the opinion of the supreme court of the United States, it is the duty of this court to reverse and remand the case to the circuit court for a retrial, or to reverse the judgment of the circuit court and dismiss the cause here. We do not agree with appellant in regard to the situation. We are now advised by the supreme court of the United States that we erred in the interpretation of the Federal statute, and as the case stands now it is authoritatively established that appellee violated the law when he accepted a free ride, and with this situation it is left to this court to apply the state law and decide whether or not he is entitled to recover in this action. The McLaurin Case and the present case are clearly distinguishable. • In the McLaurin Case the plaintiff’s own immoral acts were the cause of his injuries. The [887] act of the defendant was harmless to him — the damage, if any, was occasioned by his own immoral conduct. If the evidence had closed when it was proven that the telegraph company’s agents disclosed the contents of the messages, the defendant would have been entitled to a peremptory instruction, because, although it was wrong to make the messages public, nevertheless the wrong caused no damage to plaintiff. It was absolutely necessary for the plaintiff to disclose his own wrong in order to make out his case, and so, when he disclosed his own wrong, we sáid then, and say now, the telegraph company was not responsible for the injuries which were self-inflicted, and without proof of his voluntary violation of the moral code he was without cause of complaint. If we take the facts of the instant case, and assume that the Federal statute was not in existence when the injury was inflicted, or if we assume that the train was engaged in intrastate commerce, it is sure that plaintiff would have suffered all the agonies he did suffer. In other words, the violation of the law did not cause or contribute to the damages. To illustrate: It may be a moral wrong to pick cotton on Sunday, and it is a violation of the law so to do; but no one would contend that a defendant could plead in bar or in extenuation of an action for an assault and battery that he and the plaintiff were violating the Sunday laws, when defendant made the assault on plaintiff, by jointly engaging in the job of picking-the cotton. In the McLaurin Case, the plaintiff proved that defendant did wrong, but he did not prove that defendant’s wrong damaged him; he merely proved that he had erred and because of his error, coupled with the incidental fact that his wrongs were discovered, he suffered humiliation and damage. The cause of McLaurin’s damage was his own wrongdoing, while the cause of the plaintiff’s damages in this case was the reckless operation of defandant’s train, and plaintiff’s injuries were not caused or increased by the violation of the law. We tried to make [888] ourselves clear in the MoLaurin Case. It was our purpose to say that a wrongdoer could not ground his case upon his own wrong, and we never intended to hold that a violator of the law could not recover when it was shown that his violation of the law was not a contributing cause to his injury. We believed then and now that the present case and the McLaurin Case represent widely divergent principles. The supreme court of the United States has set us right upon the Federal statute and its application to the facts of this cause, and now, realizing our former error, we nevertheless are unable to discover any reason for changing the judgment heretofore entered in this cause. We see now that the act of Congress was violated, but we affirm the judgment of the circuit court, and, doing so, we believe that we are not out of harmony with the decision of the supreme court of the United States. Affirmed. Potter, J., .being of counsel took no part in the decision of this case.