Opinion
No. 34271.
October 28, 1940. Suggestion of Error Overruled November 25, 1940.
CARRIERS.
A carrier was not liable to prospective passenger for damages for mental pain and suffering and punitive damages, for refusal to permit her on overcrowded bus when she was traveling to obtain medical treatment for an infant that she was carrying, where driver believed that second bus was immediately behind and was not shown to have been guilty of insulting, malicious or oppressive conduct, though second bus was more than one and one-half hours late, especially in absence of physical injury or inconvenience to prospective passenger herself.
APPEAL from the circuit court of Copiah county; HON. J.F. GUYNES, J.
Hugh V. Wall, of Brookhaven, for appellant.
The defendant was not required to accept the plaintiff as a passenger where there was not safe room.
4 R.C.L. 1064, sec. 511; Atwater v. Delaware L. W.R.R. Co., 44 N.J.L. 55, 2 A. 803, 57 A.S.R. 543; Evansville C.R.R. Co. v. Duncan, 28 Ind. 441, 92 Am. Dec. 322.
Counsel for plaintiff evidently appreciate that it is the settled law that the bus company would not be liable where it refused or declined to accept a passenger when all of the seating capacity of the bus had already been taken, and they undertake to take this case out of that line of decisions holding that the bus company was not required to accept the plaintiff as a passenger if all of its seating capacity was taken, which in this case is undisputed, by saying that a passenger on the bus offered to give the plaintiff his seat, and by saying that plaintiff offered to stand in the aisle. If the man had given to the plaintiff, under the undisputed testimony in this case, his seat, he would then have been forced to stand in the aisle. This would have subjected the defendant to an extra hazard, because it is shown that standing in the aisle is dangerous in the event that the bus was forced to make an emergency stop. It is true that there were at that time other people standing in the aisle, but it is also true that the adding of one other passenger standing in the aisle would have increased the danger and the law did not require the defendant in order to accommodate the plaintiff, to consent to this man standing in the aisle, and even if it was true that the bus driver declined to permit the man to stand in the aisle so as to accommodate plaintiff, he was clearly within his legal right and the bus company would not be liable for damages. Especially is this true when it is undisputed that the bus driver thought that there was another bus immediately following his bus that would accommodate the plaintiff. Therefore, there should have been a peremptory instruction for the defendant.
13 C.J.S. 1041, sec. 538; Brumfield v. Cons. Coach Corp., 240 Ky. 1, 40 S.W.2d 356; State v. Delaware L. N.R.R. Co., 48 N.J.L. 55, 57 Am. Rep. 543; Anderson v. G. S.I.R.R. Co., 147 Miss. 164; L.N.O. T.R.R. Co. v. Patterson, 69 Miss. 697, 22 L.R.A. 259; Delaware R.R. Co. v. Duncan, 92 Am. Dec. 322.
There is no legal evidence in this case upon which a verdict of a jury could be based.
13 C.J.S. 670; Western A.R.R. Co. v. Jackson, 93 S.E. 547, 21 Ga. App. 50; Wilcox v. Richmond R.R. Co., 17 L.R.A. 804; Hot Springs R.R. Co. v. Deloney, 45 S.W. 351, 65 Ark. 177, 67 A.S.R. 913; Miller v. So. Ry. Co., 48 S.E. 99, 69 S.C. 116; Davenport v. Chicago M. N.R.R. Co., 103 Wn. 645.
There can be no recovery for actual, punitive or exemplary damages.
5 Miss. Digest, Damages, and pocket edition; Doherty v. Miss. Power Co., 178 Miss. 204; Morse v. Duncan, 14 Fed. 396; McCann v. Cockern, 153 Miss. 237; Hood v. Moffett, 109 Miss. 757, L.R.A., 1916B, 622; Am. R.R. Co. v. Bailey, 142 Miss. 622; I.C.R.R. Co. v. Dodds, 97 Miss. 865; I.C.R.R. Co. v. Ramsey, 157 Miss. 83; Y. M.V.R.R. Co. v. Mullen, 158 Miss. 774.
There can be no recovery for special damages.
13 C.J.S., sec. 672.
There can be no recovery for nominal damages.
13 C.J.S. 1250, sec. 673; Louisville R.R. Co. v. Spurling, Ann. Cas., 1916A, 487.
There can be no recovery for mental pain and suffering.
Buenzle v. Newport Amusement Assn., 14 L.R.A. (N.S.) 1242; Smith v. Sandborn State Bank, 30 L.R.A. (N.S.) 517; Birmingham Water Co. v. Vinter, 51 So. 356; M. O.R.R. Co. v. Freeman, 141 Miss. 7; Miss. Power Co. v. Byrd, 160 Miss. 71; G. S.I.R.R. Co. v. Beard, 129 Miss. 827; Doherty v. Miss. Power Co., 178 Miss. 204.
M.S. McNeil and R.O. Arrington, both of Hazlehurst, for appellee.
The only point in this case worthy of consideration is whether or not the court erred in giving the plaintiff an instruction on the subject of punitive damages. If the court was in error on this subject then the case should be reversed. On the other hand, if it was a proper case for a punitive damage instruction, then the case should be affirmed.
It has been held that an action for being refused transportation, in accordance with contract, or for refusal to put the passenger off at his destination, is for breach of contract, and the damages recoverable are those recoverable in such an action. Nevertheless, the breach of the contract may also involve a tort, that is, a breach of the carrier's common-law duty, and in such case other damages than those incident to breach of contract may be recovered. The technical form of the action is, in general, immaterial, recovery being allowed in accordance with the wrong indicated by the facts as alleged.
13 C.J.S. 1244, sec. 669; N.O.J. G.N.R.R. Co. v. Hurst, 36 Miss. 665.
It was the duty of the defendant to receive and transport the appellee as a passenger on this bus.
13 C.J.S. 1041, par. 538.
The refusal of the appellant was wrongful and gave rise to a cause of action.
13 C.J.S. 1045, par. 539.
Punitive damages or exemplary damages may be recovered in addition to actual damages where the carrier's refusal is wilful or accompanied by violence or bad faith.
13 C.J.S. 1046, par. 540.
The case of I.C.R.R. Co. v. Hawkins, 114 Miss. 110, 74 So. 775, settles the question raised by counsel that damages for mental pain and suffering are not recoverable in the instant case. Where a case justifies the infliction of exemplary damages a recovery for mental suffering was proper.
This is not an action for the breach of a contract, but for a wilful tort, and there is no decision we are able to find in our reports in which the recovery of damages for mental suffering has been denied where there was gross negligence tantamount to wilfulness.
Western Union Tel. Co. v. Teague et al., 117 Miss. 401, 78 So. 610; G.M. N.R.R. Co. v. Thornberry, 185 Miss. 576, 188 So. 1.
There was a verdict and judgment for $1,500 recovered by the appellee against the appellant bus company as damages for the mental pain and suffering experienced by her on account of the refusal of the bus driver to permit her to take passage on an overcrowded bus from Hazlehurst to Jackson, Mississippi, on the afternoon of Saturday, July 29, 1939, for the purpose of keeping a 1 o'clock appointment with a physician in Jackson who was administering daily treatment to her sick baby which she had in her arms at the time she attempted to take passage on the bus in question. The amount of the judgment would also indicate that punitive damages were included in the verdict, as that issue was submitted to the jury on the ground that the bus driver, who had stopped his crowded bus upon being signaled to do so and to explain that he had no more vacant seats thereon, had rejected the offer of a gentleman passenger to vacate his seat for the appellee and said to him, "That is all right, she can catch the extra bus right behind me," and then slammed the bus door in a rude manner.
The proof disclosed, without conflict in the testimony, that the bus in question left New Orleans en route to Jackson early that day with nearly all of its seating capacity taken; that another bus left New Orleans five minutes later, running on the same schedule, to take care of the overflow traffic; and that the bus driver, whose conduct is complained of, had a right to assume in good faith that this second bus would arrive at Hazlehurst almost immediately behind his bus at the time he refused the appellee passage. It was further shown that the first bus, upon arriving at the store where the appellee sought to take passage in the southern part of the City of Hazlehurst, was not only filled to its entire seating capacity but was conveying five or six additional passengers who were standing in the aisle; that, while the bus driver thereafter permitted others to take passage at the station in Hazlehurst and Crystal Springs, he did so after first explaining to them that he had no vacant seats left; and that the seat which the appellee claims was offered to her at the time she was refused passage was some kind of small seat near the front beside the driver.
Under the rules and regulations of the bus company, which is operated under the supervision of the Public Service Commission, this common carrier reserves unto itself full control and discretion as to the seating of the passengers, and it was provided that in case of insufficient seating capacity on any schedule, the additional passengers could be placed on a motor coach on the first following available schedule. But, without regard to any rule or regulation in that behalf, we are of the opinion that it was a reasonable requirement under the circumstances disclosed in this record that the appellee should be asked to await the extra bus which was then thought to be following immediately behind the first one and on the same schedule. The proper solicitude for the comfort and welfare of passengers already on board would, under ordinary circumstances, justify the failure of a bus driver to acquiesce in the offer of any of such passengers to vacate a seat in favor of others desiring to take passage where he has good reason to believe that another bus is following immediately behind him with available seating room thereon. But, even under the facts of this case, we do not think that the appellant violated any legal duty which it owed to the appellee in refusing to carry her on this particular bus; neither do we think that his action in so doing was characterized by such insulting, malicious or oppressive conduct as would justify the infliction of punitive damages, as for a willful wrong. Contrary to the bus driver's reasonable expectation, it later developed that the second bus was more than one and one-half hours late, but no physical injury or inconvenience is shown to have been suffered by the appellee herself, and the suit is brought in her own right alone.
We are of the opinion that the peremptory instruction for a directed verdict, which was requested by the appellant, should have been sustained.
Reversed and judgment here for the appellant.