Opinion
No. 34152.
May 20, 1940.
1. APPEAL AND ERROR.
On defendant's appeal from judgment for plaintiff, version of facts as given in evidence by plaintiff and his witnesses must be accepted although denied by evidence adduced by defendant.
2. CARRIERS.
A common carrier is under obligation to exercise highest degree of care to transport its passengers safely.
3. CARRIERS.
A common carrier is liable to passenger for an assault made upon him while a passenger, by an employee of carrier whose ordinary duties are such as to bring him into contact with passenger, and such rule applies to an assault made by a train porter.
4. CARRIERS.
In passenger's personal injury action against carrier, all that passenger had to prove was that he was a passenger, and that without provocation he was assaulted by train porter at a place and time where ordinary duties of porter would bring him in contact with passenger.
5. CARRIERS.
Where passenger's evidence disclosed that on missing four year old child, passenger hastened to front of coach and down to last step to look upon depot grounds to see if child had gotten off train, that train was then in motion, and train porter shouted twice to passenger to get off and when passenger failed to obey, porter kicked passenger from steps, carrier was liable for passenger's injuries as against contention that there was failure of proof of theory that assault was made by porter while acting within scope of his employment.
6. CARRIERS.
In passenger's action for injuries sustained when on missing child he hastened to front of coach and down to last step to look upon depot grounds, train porter shouted twice to passenger to get off train which was in motion and when passenger failed to obey, porter kicked passenger from steps, evidence sustained verdict for passenger.
7. APPEAL AND ERROR.
The Supreme Court may not interfere with a verdict on the facts unless it can say with entire confidence that the verdict is contrary to the great weight of evidence.
8. CARRIERS.
In passenger's action for injuries sustained when kicked from steps of moving train by train porter, even if verdict for $1,500 was largely punitive, the fact that carrier operated several hundred miles of railroad was sufficient for such verdict without necessity of proving actual financial worth of carrier.
APPEAL from the circuit court of Bolivar county; HON. WM. A. ALCORN, JR., Judge.
Clinton H. McKay and Lucius E. Burch, Jr., both of Memphis, Tenn., and Hugh F. Causey and Dugas Shands, both of Cleveland, for appellant.
Appellant was entitled to peremptory instruction.
There is no conflict in the testimony as to the authority of the train porter and proof is that train porter was not acting within scope of his authority in kicking appellee and forcing him from train, if he committed such acts.
6 LaBatts' Master Servant 2d, p. 6704; Miller v. Teche Lines, Inc., 175 Miss. 351, 167 So. 52; Hand v. Industrial Life Health Ins. Co., 174 Miss. 882, 165 So. 616; Loper v. Y. M.V.R.R. Co., 166 Miss. 79, 145 So. 743; A.L.I. Restatement, Agency, Sec. 229.
Distinction between agent with general authority and servant with only menial duties to perform is uniformly recognized by this court.
Hand v. Industrial Life Ins. Co., 174 Miss. 822, 165 So. 616; Hines v. Shumaker, 97 Miss. 669, 52 So. 705; White's Lbr. Supply Co. v. Collins (Miss.), 191 So. 105.
The authority given by landlord to agent to ascertain condition of rented property and the care taken thereof by tenant and authority to request the removal of the tenant in the event the agent deems such course advisable does not authorize agent to commit an assault on the tenant.
Hahn v. Owens, 176 Miss. 296, 168 So. 622; A.L.I. Restatement, Agency, Secs 231, 454; Loper v. Y. M.V.R.R. Co., 166 Miss. 79, 145 So. 743; Miller v. Teche Lines, Inc., 175 Miss. 351, 167 So. 52; Natchez, C. M.R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Hand v. Industrial Life Ins. Co., 174 Miss. 882, 165 So. 616.
In the case at bar the porter was not even given authority "to request in his discretion the appellee to remove from the premises of the master."
I.C.R.R. Co. v. Green, 130 Miss. 622, 94 So. 793; Loper v. Y. M.V.R.R. Co., 166 Miss. 79, 145 So. 743; Western Union Tel. Co. v. Stacey, 162 Miss. 286, 139 So. 604; Wells v. Robinson Bros., etc., 153 Miss. 451, 121 So. 141; Houston v. Oppenheim et al., 166 Miss. 619, 145 So. 339; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Natchez, C. M.R. Co. v. Boyd et al., 141 Miss. 593, 107 So. 1; Davis v. Price, 133 Miss. 236, 97 So. 557.
Where conductor was vested with sole power to determine who should be allowed to ride on train and who should be removed therefrom it was beyond the scope of the authority of a railroad brakeman to remove person from train and employer was held not liable.
Marion v. Chicago, R.I. P.R. Co., 59 Iowa 428, 13 N.W. 415.
Where proof showed brakeman gave person permission to ride train and then injured such person employer held not liable because act of brakeman was beyond the scope of his authority.
Galaviz v. International, etc., R. Co., 15 Tex. Civ. App. 61, 38 S.W. 234.
Where street car was in charge of conductor but motorman ejected the deceased causing his death it was held employer not liable because motorman acted beyond scope of his employment.
Dorhshagen v. Union Depot, etc., 186 Mo. 258, 85 S.W. 344.
Burden of proof was on appellee to prove facts which would entitle him to recover and he must show that the train porter acted within the scope of his employment.
Dorhshagen v. Union Depot, etc., 186 Mo. 258, 85 S.W. 344; International, etc., R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 27 Am. St. Rep. 902.
The fact the train porter or conductor commanded appellee to get off train and he did so and was injured does not give him right to recover damages.
I.C.R.R. Co. v. Trail, 25 So. 863; Dowell v. Ry. Co., 61 Miss. 519; Dantzler, etc., v. Dry Docks Co., 119 Miss. 473, 81 So. 163; Bardwell v. M. O.R.R. Co., 63 Miss. 574; N.O. N.E. Ry. Co. v. Martin, 140 Miss. 410, 105 So. 864; Wells v. A.G.S. Ry. Co., 67 Miss. 29, 6 So. 737; N.O.J. G.N. Ry. Co. v. Stolham, 42 Miss. 607; Y. M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274.
Appellee's Instruction No. 4 authorizing jury to award punitive damages based on financial worth of appellant was reversible error.
Ga. Ry. Co. v. Baker, 125 Ga. 562, 54 S.E. 639, 7 L.R.A. (N.S.) 103, 114 Am. St. Rep. 246, 5 Ann. Cas. 484; Kneale v. Lopez, etc., 93 Miss. 201, 46 So. 705; Interstate Life, etc., v. Cooley, 105 Miss. 502, 117 So. 267; Robinson v. Spears, 21 So. 554; Lombard v. Martin, 39 Miss. 147; Y. M.V.R. Co. v. Aultman, 179 Miss. 109, 173 So. 280.
Punitive damages were awarded in this case. Appellee sued for $1000 as compensatory damages and $1500 as punitive damages. Verdict was for $1500. Therefore, there was at least $500 punitive damages awarded which was based upon appellee's erroneous Instruction No. 4.
The proof submitted by appellee is unreasonable; the verdict of the jury is manifestly wrong and was based on bias, prejudice, or passion, or both.
W.B. Alexander, Jr., and A.B. Sparkman, both of Cleveland, for appellee.
The position taken by the appellee is twofold. First, we believe that the testimony in this case shows that the train porter at the time that the injury occurred was engaged in the scope of his employment and duties or in some duty incidental thereto; and second, that it is immaterial whether the train porter was so engaged at the time of the injury in some duty incidental to the scope of his authority or was employed in some duty within the scope of his employment, for the reason that a carrier of passengers will be liable for an assault upon a passenger by his servant, in any event, whether in committing such wrong the servant was acting within the scope of his employment or not, since such a wrong is a breach of the carriers contract to carry his passengers in safety and with good treatment.
39 C.J. 1282; A.L.I. Restatement Agency, Tent. Draft No. 5, p. 53; A.L.I. Rest. Agency, Sec. 454; So. Ry. Co. v. Hunter, 74 Miss. 444, 21 So. 304; Barmore v. Vicksburg S. P. Ry. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713.
A carrier of passengers is not, like a carrier of freight, an insurer of the safety of the passenger, but is bound to the highest degree of care and diligence for the safety and good treatment of the passengers upon the train. This has long been held to be the law in this state.
L. N.R. Co. v. Compiretti, 137 Miss. 706, 102 So. 837; Y. M.V.R. Co. v. Hawkins, 163 Miss. 505, 140 So. 873; St. Louis S.F.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.), 352; 13 C.J.S. 1280, Sec. 691; N.O. N.E.R. Co. v. Jopes, 142 U.S. 18, 35 L.Ed. 919, 12 Sup. Ct. 109; Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462; St. L. etc. R. Co. v. Jackson, 118 Ark. 391, 177 S.W. 33, L.R.A. 1915E, 668; I.C.R. Co. v. Gunterman, 135 Ky. 438, 122 S.W. 514; L. N.R. Co. v. Bennett, 183 Ky. 445, 209 S.W. 558; White v. Norfolk W.R. Co., 115 N.C. 631, 20 S.E. 691, 44 Am. St. R. 489; Vinot v. L. N.R. Co., 17 La. App. 197, 134 So. 761.
The appellant complains that the giving of Instruction No. 4 for the plaintiff was error because the jury was instructed that they might take into consideration the financial worth of the defendant, if any, as shown by the evidence, in assessing punitive damages, if any punitive damages were assessed by the jury.
The appellant makes no point that this instruction is not proper in the event there is any evidence of financial worth in testimony. It is undoubtedly true in this state that financial worth may be considered by a jury in assessing punitive damages. But appellants say that it was error to grant this instruction for the reason that there was no such evidence before the court. The evidence of financial worth of the defendant before the court is found in the testimony of the conductor, A.C. Henry, who had worked for the company for 42 years as a conductor.
This testimony shows that the defendant has and operates 863 miles of lines of railroad, and while it is true that no valuation was placed upon it, it certainly shows that the defendant has and operates considerable property. It is also true that there was no testimony as to the liabilities of the defendant, which would reduce the worth of these 863 miles of lines of railroad. But this information is, of course, in the possession of the defendant and not in the possession of the plaintiff, and the defendant cannot complain if it did not see fit to introduce testimony showing the amount of the liabilities of the railroad company, or they might have introduced any evidence that they had which would show that the appearance of good financial condition created by the showing of the 863 miles of lines would not truly show the financial condition of the defendant for any reason. It certainly is evidence to show that the defendant possesses considerable property.
Bell v. Morrison, 27 Miss. 68.
The exact amount of property owned or possessed, or the exact amount of the worth of a defendant, is not an issue, or necessary in order to grant an instruction such as the one given in this case.
Appellee respectfully submits that there is no prejudice to any of the rights of the appellant committed by the trial court, and that all the error committed was to give to the appellant more favorable instructions than it was entitled to receive under the law.
Argued orally by Hugh F. Causey, for appellant.
Appellee, a colored man, resided near a station on appellant's railroad, called O'Reilly. His wife and two young children had been on a visit to Greenville, and were returning on the afternoon northbound train on the day in question. Appellee decided to meet them at Shaw, a station about five miles south of O'Reilly, and to accompany them from Shaw to O'Reilly. He purchased a ticket at Shaw, and when the train arrived there he boarded it and went into the coach reserved for colored passengers. On reaching the seat occupied by his wife, it was discovered that one of the children, a boy about four years old, was missing, and appellee thereupon hastened to the front of the coach and down to the last step to look back upon the depot grounds to see if the child had got off there. By this time the train was in motion, and the train porter shouted twice to appellee to get off; and when the appellee failed to obey, the porter kicked appellee from the steps, causing him some injury, the extent of which, in view of the amount of the verdict, it is not necessary to review.
The above statement is taken from the version of the facts as given in evidence by appellee and his witnesses which by force of the verdict must be accepted here, although denied by evidence adduced by appellant.
Under the general obligation of a common carrier to exercise the highest degree of care to transport its passengers safely, the carrier is liable to a passenger for an assault made upon him, while a passenger, by any employee of the carrier whose ordinary duties are such as to bring him into contact with the passenger, 13 C.J.S., Carriers, Sec. 691, and, consequently, this applies to an assault made by a train porter. St. Louis, I.M. S. Ry. Co. v. Jackson, 118 Ark. 391, 177 S.W. 33, L.R.A. 1915E, 668. There are exceptions, as, for instance, where the passenger, without sufficient provocation, began the assault, but none of the exceptions are presented here.
Appellant says, however, that the theory upon which appellee tried the case below was that the assault was made by the porter while acting within the scope of his employment, and that having failed to prove, as appellant contends, that the act was one within the scope of the porter's employment, the theory for recovery cannot be switched to another on appeal. All that appellee had to prove was that he was a passenger, and that, without provocation, he was assaulted by the train porter at a time and place where the ordinary duties of the porter would bring him in contact with appellee as a passenger. This the appellee did, and it was not necessary for him to go further. A case parallel in principle is Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515.
Appellant complains that the verdict is contrary to the great weight of the evidence. We cannot say with entire confidence that this point is well taken, which we must be able to do before we may interfere with a verdict on the facts. The verdict was for $1500, and assuming that this was largely of punitive damages, the fact that appellant operates, and therefore was able to operate, several hundred miles of railroad was sufficient for a verdict no larger than that without the necessity of proving, in further particularity, the actual financial worth of appellant.
Affirmed.