Opinion
10172
March 22, 1919.
Before WHALEY, County Judge, Richland, July term 1918. Affirmed.
Action by Maggie B. Penn against the Atlantic Coast Line Railroad Company. Directed verdict for the plaintiff for actual damages and for defendant on the question of punitive damages, and plaintiff appeals.
Exception: It is respectfully submitted that his Honor, Judge M.S. Whaley, erred in directing a verdict as to punitive damages and directing, on motion of defendant's attorney, a verdict for actual damage in the sum of $2.20, in that: (a) There was but one cause of action and not separable; (b) it should have been submitted to the jury under proper instruction to say whether the action of the ticket agent was wilful and not mere inadvertence; and (c) whether the refusal of the conductor to carry plaintiff after her explanation and the circumstances surrounding was wilful and wanton.
Mr. N.J. Frederick, for appellant.
Messrs. Barron, McKay, Frierson Moffatt, for respondent.
March 22, 1919. The opinion of the Court was delivered by
Action by passenger against a carrier for actual and for punitive damages.
Direction of a verdict for the plaintiff on so much of the action as was for actual damages, and for the defendant on so much of the action as was for punitive damages.
Appeal by the plaintiff.
Let the one exception be reported.
The circumstances of the case are these: The plaintiff bought at the Union Station in Columbia a ticket from Columbia to Florence. Betwixt these termini there are two routes by the carrier; the one in common from Columbia to Sumter, and from that point the one diverging directly to Florence, and the other diverging Southward via Manning and Lanes' junction, thence northward to Florence. For expedition the plaintiff intended to take the latter route, and she testified thus about the transaction:
"Plaintiff testified that she asked the ticket agent of defendant for a ticket to Florence, S.C. her destination, inquiring at the same time the price of the said ticket by way of Lanes, and being told the price by that route, purchased same, paying full fare as demanded by defendant's ticket agent; that being the only route by which plaintiff could go to Florence that hour of the morning. Plaintiff testified substantially as follows: That she did not read the ticket given her by the agent and was not aware that said ticket was not what she had asked for and paid for until her attention was called to it by the conductor on train between Columbia and Sumter, who told her she would have to wait at Sumter for the evening train. That knowing she had paid the proper fare to be carried to her destination that morning by way of Lanes, she boarded defendant's train at Sumter to go on to Florence. That after having put her baggage down, she went out of the car into the ground and exhibited her ticket to the conductor of said train. who was standing there. Q. When you told the conductor that you had your ticket and had paid your fare, what did the conductor say to you? A. He said that he did not have anything to do with that; he could not carry me on it, because it was not routed. Q. And did you show the conductor your ticket? A. I did. Q. And he said it was not routed and he could not take you on it? A. Yes, sir."
The carrier was represented by two agents, the conductor and the ticket seller. The testimony does not at all suggest wilful conduct by the conductor; and the most it suggests by the ticket seller is negligence, and for that the plaintiff was compensated by the verdict.
But the appellant contends that the complaint stated but one cause of action and that the Court had no right to split it; and she cites Griffin v. R.R., 65 S.C. 125, 43 S.E. 445.
It is true that if the complaint alleges both negligence and wilfulness, and there be testimony tending to prove the former, then nonsuit is not proper on the whole case. Machen v. W.U.T. Co., 72 S.C. 260, 51 S.E. 697; Carter v. Western Union Telegraph Co., 73 S.C. 434, 53 S.E. 539. But when there is some evidence of negligence and no evidence of wilfulness, it is the duty of the Court to direct the jury that there is no evidence of wilfulness. Plainly, a party is not entitled to relief for a wrong unless there be testimony tending to support the allegation of a wrong.
The further contention of the appellant, that the conductor was bound to heed the reasonable explanation of the passenger ( Smith v. R.R., 88 S.C. 421, 70 S.E. 1057, 34 L.R.A. (N.S.) 708), had no application to the facts of this case.
Judgment affirmed.
MESSRS. JUSTICES HYDRICK and FRAMER concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS did not sit.