Ala. Great Southern Railroad v. Sellers

McOLELLAN, J.

— The inquiry of chief importance in this case is, whether there was any testimony adduced, which, if believed, would have authorized the imposition of exemplary damages. We think there was such testimony. The plaintiff (appellee here) testified in her own behalf, that she purchased a ticket entitling her to transportation on a freight train of the defendant from Jonesboro to Wheeling, stations on defendant’s road about two miles apart, and took passage on such train at Jonesboro; that at Wheeling there was a house used as a station-house by all passengers to and from that point over defendant’s line, and at which defendant’s trains carrying passengers were wont to stop for the purpose of receiving and discharging passengers ; that on the occasion in question the train was not stopped at said station, but proceeded from two hundred to four hundred yards beyond it; that it was raining at the time; that plaintiff requested the conductor to move the train back to the house, but he pretended not to hear, and told plaintiff she must get off; that the rain increased and was falling heavily, and a high wind was prevailing when she did get off; that she had a young baby in her arms, and was otherwise incumbered with a valise; that because of these impediments she could not efficiently use an umbrella which she had; that she alighted in obedience to the direction of the conductor in this driving rain, and walked back to the station-house, getting thoroughly wet, and in consequence became quite sick, and was so for three months. The testimony of the conductor goes to show that the house in question was used as a station-house by his company, and, even on the evidence of the plaintiff, there can be no doubt that it was the duty of the defendant to stop this train at the house, and allow passengers to alight there, notwithstanding the house belonged to another company. — L. & N. R. R. H. Co. v. Johnston, 79 Ala. 436 . If the jury believed the testimony we have detailed, they would have been justi *14 fied ill the conclusion that defendant’s conductor, within the range of his employment, willfully refused to move the train back to the station, and willfully compelled the plaintiff to alight in a driving rain several hundred yards from any shelter, so incumbered with her child and baggage as to be unable to protect herself, and necessitating exposure to the elements while walking this distance. We can not hesitate to affirm that this misconduct on the part of defendant’s employé, with knowledge of the situation, was such a willful wrong, committed in such reckless disregard of the necessarily injurious consequences to the plaintiff, as authorized the jury to punish the defendant therefor by the imposition of exemplary dam ages. — N. O. J. & G. R. R. Co. v. Hurst, 36 Miss. 660, 668-9; Wilkinson v. Searcy, 76 Ala. 176 ; A. G. S. R. R. Co. v. Frazier, at present term.

2. The most casual reading of the complaint suffices to demonstrate that, while each of its counts avers defendant’s wrong and negligence in failing in the first instance to stop its train at Wheeling, neither of them bases plaintiff’s claim for damages on that omission of duly, but, on the contrary, they each seek to recover for damages resulting from the refusal of the conductor to return to the stopping-place, and the consequent necessity, accentuated by the expressed directions of the conductor, for plaintiff to alight beyond the station, “in a hard and drenching rain,” and to walk back through' the fain to the point at which she should have been set down. One or more of the requests for instructions involved a construction of the complaint confining the recovery to damages sustained in consequence of a failure to stop in the first instance, and for this reason were properly refused.

3. Evidence that plaintiff had her infant in her arms when she alighted from the train was objected to, and is made the basis of an assignment of error here. The position of appellant in that regard is untenable. Manifestly this testimony legitimately tended to aggravate the willful wrong of the conductor in requiring the plaintiff to get off in the rain at the considerable distance from any shelter shown in the case; and this whether regard is to be had to the infant per se, or the mother’s natural solicitude for it, or whether it be regarded only as one of the impediments which disabled the plaintiff from protecting herself in some measure from the rain. '

4. The position taken in some of the charges requested for the defendant and refused, that there could be no recovery under the first or second counts, unless force was used by the conductor in getting plaintiff off the car — those counts averring that she was “put off,” and “compelled to get off,” respect *15 ively — is untenable. If she alighted in consequence of the implied refusal of the conductor to return to the station, to avoid being carried on, and in obedience to the direction of the conductor to do so, she acted under compulsion which was the equivalent of being put off, or compelled to get off; and the court properly charged the jury that the allegations in this regard did “not necessarily equal or mean the application of force to remove the plaintiff from said train.”

5. It is no doubt true, as asserted in some of the charges requested for defendant, that persons who “apply for and receive transportation on freight trains are not entitled to the comforts and conveniences usually furnished passengers on passenger trains;” but that proposition has no bearing on any issue of fact in this case. jNto injury is claimed, or was sustained, by reason of any difference there may be in the “comforts and conveniences usually furnished passengers” on these different classes of trains. The wrong and injury counted on resulted from a failure to transport the plaintiff from Jonesboro to the depot at Wheeling, with or without certain comforts and conveniences, and in compelling her to alight at a distance from the point at which she had contracted to be set down; and there can be no sort of doubt that whether the vehicle used by the carrier to perform the contract of carriage be of one or the other character hypothesized, its duty to set. the passenger down at the end of the journey is precisely the same. These charges were abstract, and well refused on that ground.

6. There are respectable authorities which appear to hold, that exemplary damages can not be awarded when the actual injury is purely nominal; the theory being that, as exemplary damages are laid in conservation of the interests of society, which for this purpose are considered “as blended with the interests of the individual,” where the individual is injured only nominally, or not at all in fact, though his rights are violated, “the interests of society have virtually nothing to blend with,” and hence, “the individual having but a nominal interest, society can have none,” &c. — Stacey v. Portland Pub. Co., 68 Me. 287 . This view is specious, but, we apprehend, not sound. The true theory of examplary damages is that of punishment, involving the ideas of retribution for willful misconduct, and an example to deter from its repetition. The position of the Supreme Court of Maine can be sustained in prin-' ciple, it seems to us, only by assuming that which is manifestly untrue, namely, that no act is criminal which does not inflict individual injury capable of being measured and compensated for in money. Many acts denounced as crimes by our statutes, or by the common law, involve no pecuniary injury to *16 the individual against whom they are directed, and which, while the party aggrieved could not recover damages, as compensation beyond a merely nominal sum, are yet punished in the criminal courts, and may also be punished in civil actions by the imposition of “smart money;” and on the same principle, acts readily conceivable which involve malice, willfulness, or wanton and reckless disregard of the rights of others, though not within the calendar of crimes, and inflicting no pecuniary loss or detriment measurable by a money standard on the individual, yet merit such punishment as the civil courts may inflict by the imposition of exemplary damages. And upon these considerations the law is, and has long been, settled in this State, that the infliction of actual damage is not an essential predicate to the imposition of exemplary damages. — Par ker v. Mise. 27 Ala. 480 ; W. U. T. Co. v. Henderson, 79 Ala. 510 ; A. G. S. R. R. Co. v. Huddleston, 32 Ala. 218 . See, also, 1 Suth. on Dam. 748. The charges requested by the defendant, to the effeci. that actual damage must be shown before punitive damages could be recovered, were therefore properly refused.

Charge No. 8, refused to defendant, was misleading when referred to plaintiff’s testimony. It tended to induce the jury to the conclusion that, if no actual force was employed by the conductor to put the plaintiff off the train, she left it voluntarily, and this notwithstanding she may have acted under the compulsion resulting from the conductor’s failure and implied refusal to move the train back to the station, and from his direction to passengers to alight where the car stood. There was no error in its refusal.

7. Charges 9 and 10, requested by defendant, were argumentative, in that they direct the jury to look to certain fact;s as tending toward certain conclusions. That numbered 9, moreover, is subject to the same objection taken to No. 8 supra — its tendency is to mislead the jury; and' that numbered 10 is bad for the further reason, that it confines the right of recovery to injury resulting from defendant’s negligence in passing the station, when, as we have seen, the wrong and injury really complained of consisted in a failure to move the train back to the stopping-place, and the consequent necessity plaintiff was under to alight and walk back in the rain.

Charge 11, requested for defendant, was properly refused, because 'not supported by any tendency of the testimony. There is no evidence in this record to the effect that “plaintiff could have been cured of the sickness in ten days,” &c., as hypothesized in this request.

*17 The rulings of the court on charges not above referred to by number are all considered in the general propositions of law we have announced. The record is free from error, and the judgment is affirmed.