Opinion
No. 33677.
May 8, 1939.
1. CARRIERS.
Whether conductor observed condition of drunken passenger when conductor took up his ticket, and whether conductor was present and heard prior vulgar remarks allegedly made by drunken passenger in plaintiff passenger's presence and failed to discharge his duty of protecting plaintiff from insult, were for jury (Code 1930, sections 6136-6138).
2. CARRIERS.
A passenger who sustained no physical injury could not recover compensatory damages for humiliation and mental pain caused by insulting language used by drunken passenger, in absence of showing that conductor was guilty of a wanton or willful wrong in not taking steps to compel him to desist from a further use of vulgar language in passenger's presence after conductor acquired knowledge of offending passenger's conduct under circumstances as would cause a reasonable apprehension that his misbehavior would continue unless some action was taken to prevent it (Code 1930, sections 6136-6138).
3. CARRIERS.
Submitting to jury question of awarding compensatory damages for humiliation and mental pain allegedly sustained by passenger because of insulting language used by drunken passenger without regard to failure of passenger to show that she had sustained any physical injury, which could have been anticipated by the conductor as probable consequence of act of drunken passenger, and without reference to whether conductor was guilty of any wanton or willful wrong, was error (Code 1930, sections 6136-6138).
APPEAL from the circuit court of Pontotoc county; HON. THOS. H. JOHNSTON, Judge.
Fred B. Smith, of Ripley, for appellant.
The lower court should have granted the peremptory instruction requested by the appellant. It is our position that the verdict was contrary to the law and the evidence, that it was not sustained by the evidence, that there was no proof indicating gross negligence or wilful neglect of duty on the part of the employees of the appellant, and that no recovery could be had for alleged mental suffering, humiliation, or embarrassment without contemporaneous physical injury, even though the conductor had been negligent in the performance of his duty.
N.O., St. L. C.R.R. Co. v. Burke, 53 Miss. 200; Royston v. I.C.R.R. Co., 67 Miss. 377; I.C.R.R. Co. v. Minor, 69 Miss. 710; Spinks v. N.O.M. C.R.R. Co., 106 Miss. 53.
In every case in Mississippi, dealing with a situation where one passenger receives an injury at the hands of another passenger, there has been some physical violence. And although our court recognizes the fact that there can be circumstances under which there would be liability, they have repeatedly emphasized the fact that such a rule should be circumscribed with strict limitations and that the doctrine should not be extended beyond those limitations. We can hardly conceive of the opening of a greater field of feigned and simulated damage cases, than would be permitted under a holding to the effect that a railroad company would be liable because of mere language used by one passenger to another passenger.
Glennen v. Boston Elevated Ry. Co., 270 Mass. 497, 93 N.E. 700.
A person cannot elect to place themselves in a position of danger, and there remain, without any effort to avoid the danger, and without any complaint to those in authority, and then claim damages for alleged injuries resulting from the danger.
I.C.R.R. Co. v. Minor, 69 Miss. 719.
Damages for humiliation, embarrassment, excitement, or other mental disturbances cannot be recovered on simple negligence where there is no accompanying physical injury. Had the appellee been insulted, humiliated, or excited by some uncalled-for action, language, or conduct on the part of an employee of the railroad company, then we would have had an entirely different situation. But here we have the appellee seeking to recover solely because of the alleged negligence of the conductor, an employee of the appellant, in failing to afford to her the degree of protection from the conduct of a fellow passenger, to which she alleges she was entitled, in other words, an act based on an allegation of simple negligence alone. Yet the damage is sought to be recovered for alleged humiliation, embarrassment, and excitement wholly unaccompanied by any sort of physical injury. The courts have almost uniformly held that no liability exists for actions of negligence causing mental disturbances unaccompanied by contemporaneous physical injuries.
Koontz v. Keller, 3 N.E.2d 694; Freedman v. Eastern Mass. St. Ry. Co. v. Fall River Gas Works Co., 12 N.E.2d 739; Jones v. Western Union Tel. Co., 233 Fed. 301; B. O.R.R. Co. case, 47 Oh. St. 309, 85 N.E. 499, 18 L.R.A. (N.S.) 590; Spade v. Lynn B.R.R. Co., 168 Mass. 285, 47 N.E. 88; Huston v. Freemansburg, 212 Pa. 548, 61 A. 1022; Southern Express Co. v. Byers, 240 U.S. 612, 60 L.Ed. 827; Herrick v. Evening Express Publishing Co., 120 Me. 138, 113 A. 16.
The action in this case is based on negligence, not on breach of contract. But should the appellee undertake to say, that the appellant contracted to carry her on its train, and breached that contract in failing to afford her proper protection, still the same rule would apply, as the courts have uniformly held that in an action for breach of contract, recovery cannot be had for mental suffering unaccompanied by physical injury.
Smith v. Wilmington W.R.R. Co., 130 N.C. 304, 41 S.E. 481; Sapington v. A. W.P.R.R. Co., 127 Ga. 179, 56 S.E. 311; Zabron v. Cunard S.S. Co., 151 Iowa 345, 131 N.W. 18; Hall v. Jackson, 24 Col. App. 225, 134 P. 151; Beaulieu v. Great Northern Ry. Co., 303 Minn. 47, 114 N.W. 353; Marrone v. Washington Jockey Club, 227 U.S. 633, 57 L.Ed. 679; Buenzle v. Newport Amusement Assn., 29 R.I. 23, 68 A. 721; Darrow v. I.C.R.R. Co., 65 Miss. 17; Western Union Tel. Co. v. Rogers, 68 Miss. 749; Relle v. Western Union Tel. Co., 55 Tex. 308; Pullman Co. v. Kelly, 86 Miss. 87; G. S.I.R. Co. v. Beard, 129 Miss. 827, 93 So. 357; M. O.R.R. Co. v. Flannigan, 141 Miss. 7, 105 So. 749; Grenada Bank v. Lester, 126 Miss. 442, 89 So. 3; Western Union Tel. Co. v. Koonce, 112 Miss. 173, 72 So. 893.
The first instruction granted the appellee announced the law as being that a railroad company it liable to a passenger for any insult or abuse received at the hands of a fellow passenger, provided the conductor failed to make such effort as was reasonably "possible" to prevent the injury. This instruction is entirely too broad and is not warranted by the decisions of our court dealing with this class of case.
N.O., St. L. C.R.R. Co. v. Burke, 53 Miss. 200; Spinks v. N.O.M. C.R.R. Co., 106 Miss. 53; I.C.R.R. Co. v. Minor, 69 Miss. 710.
The second instruction granted the appellee was entirely too broad in its language and terms, in its opening statement, there unqualified to the effect "that it is the duty of the conductor of a passenger train to preserve order on his train, to protect passengers from insult and injury from their fellow passengers."
The court erred in granting the third instruction for the appellee, by which the jury was told that if it found for the plaintiff, "that in assessing the damages of the plaintiff, if you see fit, you may assess such damages as will compensate the plaintiff for injured feelings, mental anguish, and humiliation as would naturally follow from such insulting remarks and conduct." This instruction tells the jury that if any insulting remarks were made in the presence of the plaintiff that damages "would naturally follow." Instead of the instruction saying that the jury might award damages, if they believed from a preponderance of the evidence that any damages were actually sustained, we have the court telling the jury by a judicial pronouncement that damages "would naturally follow," if any insulting remarks were made.
Our court has frequently held that an instruction, otherwise correct, might be erroneous where it authorized the awarding of excessive damages.
Gulfport Miss. Coast Traction Co. v. Keebler, 94 So. 795; A. V.R.R. Co. v. Dennis, 91 So. 4.
The instruction is likewise erroneous because it authorized the award of unlimited damages for injured feelings, mental anguish, and humiliation, without any qualification whatever relative to the necessity of physical injury before damages for mental anguish could be recovered.
The appellant requested refused Instruction No. 1, which reads as follows: "The court instructs the jury for the defendant that the plaintiff cannot recover damages for mere negligence on the part of the defendant, its agents, or employees, causing the plaintiff to suffer humiliation, embarrassment, fright, or mental anguish, even though same might have resulted in later illness, unless the jury believe from a preponderance of all the evidence that the conduct and negligence of the defendant, its agents, and employees amounted to wilfulness or wantonness."
Then, in refused Instruction No. 2, the appellant asked the court to instruct the jury that no damages could be awarded for humiliation, embarrassment, excitement, nervousness, and mental anguish, unaccompanied by physical suffering, unless the proof revealed that the action of the conductor, caused such mental disturbance was wilful, wanton or malicious. Then, in the third refused instruction asked by the appellant, the same principle of law was requested, and the court was asked to instruct the jury that the appellee could not recover for mental suffering, humiliation, and embarrassment, causing nervousness and excitement, unless the jury believed from the evidence that the agents and employees of the appellant were so negligent in failing to afford protection to the plaintiff, after knowing or having reason to know that the drunk passenger was guilty of offensive and insulting conduct towards her, that their negligence amounted to wilful negligence.
The court refused each of these three instructions, which action constituted very prejudicial error, as we find the court telling the jury, in the appellee's instructions, that it might award the appellee such damages as it saw fit, for the injuries which she would naturally sustain by reason of the insult and her humiliation, and yet, wholly failing to qualify this by any statement of law, to the effect that if there was no personal injury, damages could not be awarded unless the conduct of the conductor in failing to afford her protection amounted to wilful or gross negligence. And we further find the court refusing to instruct the jury as to this most important principle of law on the repeated request of the appellant.
The verdict of the jury was so excessive as to evince passion and prejudice on the part of the jury and the court should have sustained appellant's motion for a new trial on this ground. J.H. Brown, of Fulton, and Adams Long, of Tupelo, for appellee.
We wish to call the court's attention that the case of Railroad Company v. Burke, 53 Miss. 200, was an early and original pronouncement of the law on this subject.
That Judge J.A.P. Campbell was attorney for the Railroad Company in that case, and filed a very able brief for the appellant and said all that could be said for the contrary view, but that in spite of this brief, the court laid down the general principles to be followed in Mississippi, that is that as a general rule a railroad company is not an insurer of a passenger the same as it is of freight, but that it is the duty of the officers in charge of a railroad train, to preserve order thereon, and, if necessary, to eject therefrom all drunken, riotous and disorderly persons, as well as all persons violating the reasonable rules and regulations of the company, and it held with the Supreme Court of Massachusetts that a conductor may expel from the train a person, who by reason of intoxication or otherwise, is in such a condition as to render it reasonably certain that by act or speech, he will become offensive or annoying to other passengers, although he has not actually committed an act of offense or annoyance.
In the case of Vinton v. Middlesex, 11 Allen 304, quoted in the Burke opinion, it held that the conductor might stop the train, call to his assistance his fellow employees and willing passengers, and eject the drunk, or his antagonist. Under this rule power was given the conductor in that he might not only right his own wrongs and protect the railroad alone, but to protect the passengers as well.
Royston v. I.C.R.R. Co., 67 Miss. 377.
The restrictions thrown around the railroads to protect them in the Burke case do not bother us in the least in this case for the rule laid down that it is the duty of a railroad company to protect the passengers from insults, assaults and injuries of fellow passengers where the conductor or agents of the railroad have notice of the impending injury, or should have had from the circumstances, or are present when the injury occurs and failed to act to avert the injury, that then the railroad is liable because of their negligence, that we have certainly made out such a case in this particular case.
We argued to the lower court, and we still say that the conduct of the conductor, in sorting his tickets, a thing that could have waited, in view of all of the former knowledge which he had of the plight of this lady, after she had sent for him, amounted to wilful and malicious failure to act, and demonstrated a total disregard of plaintiff's plight, and entitled us to an instruction on punitive damages, which, if true, does away with all of the rest of plaintiff's brief on the point with reference to the damages which might have been awarded for mental anguish, for if our view of this is correct, and we confidently say that it is correct, then mental anguish and punitive damages both could have been awarded, and we should have had both of the instructions instead of the one.
But in case this court should hold that this conduct on the part of the conductor was not wilful and did not evidence a disregard of plaintiff's situation, or was not gross negligence, then we want to join issue with counsel for the appellant on the question of whether or not, without physical injury of some kind, damages for injured feelings and mental suffering can be awarded in a case similar to the case at bar. We want, first, to call the court's attention to our statutes on the subject, sections 6136, 6137, 6138, etc., of the Mississippi Code of 1930, and we also wish to call the court's attention to the case of Gallegly v. Railroad Company, 83 Miss. 171, in which the court said, speaking of the conductor of the train: "It is his duty to protect his passengers not only from assault but from insult and from blasphemy, obscenity and unseemly conduct."
A carrier must protect its passengers from the assault, insults and ill treatment of their fellow passengers and strangers where they have knowledge of the impending danger or have knowledge of sufficient facts to put them on knowledge.
Nashville Ry. Co. v. Flake, 114 Tenn. 671, 108 A.S.R. 925; Brunswick Western R.R. Co. v. Ponder, 117 Ga. 63, 97 A.S.R. 152; Coolen v. Boston Northern State Ry., 193 Mass. 341, 118 A.S.R. 516; Farrier v. Colorado Springs Rapid Transit Ry. Co., 126 A.S.R. 158; United Railways, etc., Co. v. Deane, 93 Md. 619, 86 A.S.R. 453, 49 A. 923; Haver v. Central R.R. Co., 62 N.J.L. 282, 72 A.S.R. 647, 41 A. 916; Spade v. Lynn, etc., R.R. Co., 172 Mass. 488, 70 A.S.R. 298; Birmingham Ry., etc., Co. v. Baird, 130 Ala. 334, 89 A.S.R. 43, 30 So. 456; Savannah, etc., Ry. Co. v. Quo, 103 Ga. 125, 68 A.S.R. 85, 29 S.E. 607; White v. Norfolk, etc., R.R. Co., 115 N.C. 631, 44 A.S.R. 489, 20 S.E. 191; Rommel v. Schambacher, 6 A.S.R. 734; Richmond, etc., R.R. Co. v. Jefferson, 32 A.S.R. 90; Goodloe v. Memphis, etc., R.R. Co., 54 A.S.R. 89; Owens v. Wilmington, etc., R.R. Co., 126 N.C. 139, 78 A.S.R. 642, 35 S.E. 259; Tryon v. Pingree, 67 A.S.R. 426; Gillingham v. Ohio River R.R. Co., 35 W. Va. 588, 29 A.S.R. 827; Mulligan v. New York, etc., Ry. Co., 26 A.S.R. 543; Spangler v. Railroad Co., 68 Kans. 607, 104 A.S.R. 391; 13 C.J.S., pages 1294 and 1301.
We do not say that the doctrine laid down in all of these cases, and in many other cases, apply in Mississippi in toto for we are limited in Mississippi to such things as have transpired in front of the conductor so as to give him knowledge of facts, which should have given him notice where he could have anticipated insult or injury to the passengers, but with that exception this rule decided by all of these courts apply in Mississippi, forcibly by reason of opinion in Gallegly v. Railroad Company. The logical inference then is that if it is the duty of the conductor to protect passengers from insult or obscenity and unseemly conduct, that it must of necessity follow, that when he fails to protect them from such conduct and such language when he has reasonable notice that it might occur that the railroad then must be liable for such damages as would always ensue from insult and humiliation, and this of course is limited to mental anguish, humiliation and annoyance. To impose a duty on the railroad company, without a penalty, would be a foolish and vain thing.
The courts have held that in cases like the case at bar, where the railroad company has failed to protect women passengers from insult that damages are collectible for mental anguish, humiliation and such like.
Batton v. South and North Alabama R.R. Co., 77 Ala. 591, 54 Am. Rep. 80; Savannah-Florida Western R.R. Co. v. Quo, 103 Ga. 125, 68 A.S.R. 85; Chamberlain v. Chandler, 3 Mason 242; Lucy v. Chicago Great Western Ry. Co., 31 L.R.A. 551; Seaboard Air Line v. Mobley, 69 So. 614; 13 C.J.S., page 1300, par. 695.
In all the cases cited by appellant in support of his contention that mental anguish, injured feelings and embarrassment could not be compensated in this case each and every one of them is predicated on simple negligence and none of them have to do with gross negligence and none of them have to do with insult, obscenity or profanity.
We call the court's attention to the language of Judge ANDERSON, in the case of Mississippi Power Co. v. Byrd, 133 So. 193, where the court held damages from mental suffering cannot be recovered where caused by simple negligence, where there is no bodily injury, malice or fraud, and this language of the court clearly implies that where a case of simple negligence results in insult and indecent exposure and especially in the case of a female that injured feelings, etc., would be an element of the damages, in the absence of physical injury.
The conduct of the conductor in the case at bar amounted to gross negligence. We will not burden the court again with a summary of this conduct, but we want to say to the court that if the testimony of the plaintiff below is true that the conduct of the conductor clearly amounted to gross negligence and evidenced an indifference to her peril, which was wanton, reckless and was enough to predicate malice upon, and that therefore both punitive damages and damages for mental suffering, insult and inconvenience should have been allowed and an instruction for either or both of them was good.
We also call the court's attention to the fact that malice, wantonness and other things are not necessary for exemplary damages in Mississippi, but that punitive or exemplary damages in Mississippi can be predicated on gross negligence alone, and we need no further authority for this than the case of Railroad Company v. Burke, 53 Miss. 200, but we do want to call the court's attention to the leading case in Mississippi on the subject, Whitfield v. Railroad Company, 44 Miss. 466, which holds that gross negligence will authorize an instruction on punitive damages.
2 Miss. Digest, par. 1068, sections 3 and 4.
We are not urging on this court that anything can or should be done because of the failure to give us an instruction on punitive damages, but we say that the instruction given on mental suffering, etc., is good because we were entitled to both of them.
Answering the criticism of our second instruction, we only have to call the court's attention to the language of the Mississippi court in the case of Gallegly v. Railroad Company, 83 Miss. 671.
The instruction is exactly what the law is as announced in the Burke case, and if there is any error whatever in the words "reasonably possible" in the first instruction, the second instruction explains the duty of the conductor so well and explains all that is required of him so well that the two instructions could be understood by a way-faring man, though a fool, when he runs and reads.
In our first instruction, we used the words preponderance of evidence, and the jury was thoroughly instructed that it was our duty to make the evidence preponderate. The second instruction was for the purpose of further explaining and cautioning the jury on what was required of the conductor, and the two instructions should be read together.
Argued orally by Fred B. Smith, for appellant, and by Sam H. Long, for appellee.
The appellee recovered a judgment in the sum of $1000 against the appellant railroad company in the circuit court of Pontotoc county for damages on account of humiliation, embarrassment, and mental pain and anguish alleged to have been sustained by her by reason of certain insulting, vulgar and indecent language used by a drunken passenger in her presence on one of the appellant's trains.
The testimony made an issue for the jury as to whether the conductor observed the condition of the drunken passenger when he took up his ticket on leaving Louisville, and also as to whether he was present and heard certain vulgar and indecent remarks alleged to have been made by such passenger in the presence of appellee in regard to some ladies standing on the station platform at Ackerman as the train was leaving there, and failed to discharge his duty of protecting the appellee passenger from insult, vulgarity and indecency, under such circumstances as would render such conductor guilty of a willful or wanton disregard of her rights in the premises.
It appears that the subsequent conduct complained of occurred out of the presence and hearing of the conductor, and that upon complaint being made to him by appellee, through the news butch, the conductor immediately sent the news butch into the coach to bring the "drunk" out while the conductor finished assorting some tickets and removed them from a table where they were spread out before him at the moment the request was received. The news butch forthwith and efficiently carried out the conductor's request; and consequently, no liability can be predicated upon the failure of the conductor himself to go instantly to appellee's relief on that occasion. The appellant's liability for all of the offensive conduct of the fellow passenger must therefore depend upon whether the conductor observed his drunken condition when taking up his ticket upon leaving Louisville and whether he later heard the vulgar and indecent language alleged to have been used in his presence upon the departure of the train from Ackerman, so as to impose upon him the duty of taking action to prevent its recurrence, as contemplated by sections 6136, 6137 and 6138 of the Code of 1930, and Gallegly v. Railroad Co., 83 Miss. 171, 35 So. 420.
No physical injury is alleged to have been sustained by the appellee at the hands of this fellow-passenger, and she would not therefore be entitled to recover compensatory damages for the injuries complained of in the absence of a showing that the conductor on the train of the appellant was guilty of a wanton or willful wrong in not ejecting the drunken passenger, or in not otherwise taking steps to compel him to desist from a further use of vulgar and indecent language in her presence, after such conductor may have acquired knowledge of the offending passenger's conduct under such circumstances as would cause a reasonable apprehension that his misbehavior would continue unless some action was taken to prevent its continuance. New Orleans St. L. C.R. Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689; Dorrah v. Illinois C.R. Co., 65 Miss. 14, 3 So. 36, 7 Am. St. Rep. 629; Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823, 13 L.R.A. 859, 24 Am. St. Rep. 300; Duncan v. Telegraph Co., 93 Miss. 500, 47 So. 552; Western Union Tel. Co. v. Ragsdale, 111 Miss. 550, 71 So. 818; and Mississippi Power Co. v. Byrd, 160 Miss. 71, 133 So. 193.
The trial court refused an instruction requested by the plaintiff on the question of punitive damages, and submitted to the jury the question of awarding compensatory damages for humiliation, embarrassment, excitement, mental pain and anguish, etc., without regard to the failure of the plaintiff to show that she had sustained any physical injury, which could have been anticipated by the conductor as a natural and probable consequence of the act of the drunken passenger, and also without reference to whether or not the conductor was guilty of any wanton or willful wrong in permitting the conduct of the drunken passenger complained of. This was error. Doherty v. Mississippi Power Company, 178 Miss. 204, 173 So. 287. Compare Biedenharn Candy Company v. Mrs. V.A. Moore, Miss., 186 So. 628.
Reversed and remanded.