Opinion
No. 32635.
March 1, 1937.
CARRIERS.
In action against carrier, instruction which authorized jury to adjudge punitive damages if carrier's failure to perform its public duties was "reckless" or wanton, or grossly negligent, or willful, held not erroneous on ground that "reckless" means no more than simple negligence, since word imports heedless indifference to consequences; "recklessness" being synonymous with "gross negligence."
APPEAL from circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
Stevens Stevens and Geo. R. Nobles, all of Jackson, for appellant.
The court erred in granting instructions authorizing and defining punitive damages and refusing defendant's instruction that punitive damages could not be recovered.
Plaintiff's instruction defining punitive damages reads as follows: "The court instructs the jury for the plaintiff that if you believe that the defendant failed to perform its duty to go by the Mendenhall, Mississippi, bus station, and carry the plaintiff, or give him an opportunity to get on its bus, and that such belief is founded upon a preponderance of the evidence in this case, and that if you further believe that said failure to perform its public duty was reckless, or wanton, or grossly negligent, or wilful, then the jury may award punitive damages in such sum as the jury may deem proper to protect the public and deter the wrongdoer."
It will be observed that the above instruction authorized the jury to fix punitive damages, should they believe that defendant's driver was reckless or wanton or grossly negligent or wilful, each descriptive phrase being in the disjunctive; that is to say, as the instruction was granted, the jury was authorized to award punitive damages if they believed that the driver's conduct was reckless, or that the driver's conduct was wanton, or that the driver's conduct was grossly negligent, or that the driver's conduct was wilful. There are two major errors in the above instruction, the first being that there is no evidence whatsoever on which the jury might base any finding that the conduct of the driver was either wanton or wilful. Secondly, the use of the term "reckless," without further qualification, is clearly erroneous, because the term is synonymous with neglect or negligence, and it has never been the law that a carrier is liable for punitive damages for simple negligence in the discharge of its public duty.
Railroad Co. v. Scanlon, 63 Miss. 413; 53 C.J. 549, 551; 7 Words Phrases (1st Series) 6000 and 6001.
It was error for the court to submit the question of punitive damages to the jury in any form, and it was error for the court to refuse the defendant's instruction to the effect that the plaintiff could recover nothing by way of punitive damages.
Chicago Railroad Co. v. Scurr, 59 Miss. 456; Southern Ry. Co. v. Kendrick, 40 Miss. 374, 90 Am. Dec. 332; Dorrah v. I.C.R. Co., 3 So. 36, 65 Miss. 14, 7 Am. St. Rep. 629; St. Louis S.F.R. Co. v. Garner, 51 So. 273, 96 Miss. 577; Y. M.V.R. Co. v. Hardie, 100 Miss. 132, 55 So. 42, 967; Miss. Tenn. R.R. Co. v. Gill, 66 Miss. 39, 5 So. 393.
Frank T. Williams, of Mendenhall, for appellee.
Appellee was properly granted the instructions given by the trial court and, in view of the facts, would have been even warranted in instructing the jury that this failure of appellant to do its duty was wilful and grossly negligent. The evidence compels the conclusion that the act of omission was wilful.
I.C.R.R. Co. v. Hawkins, 114 Miss. 110, 74 So. 775.
The term "reckless" was used in the instructions in accordance with the law and various precedents in the decisions of this court.
Chicago Railroad Co. v. Scurr, 59 Miss. 456.
Appellee cites the following cases as authority for affirming the verdict and judgment of the lower court:
Heirn v. McCaughan, 32 Miss. 17; Higgins v. Louisville, etc., R. Co., 64 Miss. 80, 8 So. 176; Y. M.V.R. Co. v. Mitchell, 83 Miss. 179, 35 So. 339; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; I.C.R. Co. v. Hawkins, 114 Miss. 110, 74 So. 775; I.C.R. Co. v. Ramsay, 127 So. 725; Teche Lines, Inc., v. Pope, 166 So. 539.
Argued orally by J.M. Stevens, Jr., for appellant, and by Frank T. Williams, for appellee.
Although this case is close upon its facts as regards the allowance of punitive damages, we have concluded that the evidence is sufficient under several of our decisions dealing with common carriers to support a verdict of gross neglect of duty. And we write only to respond in particular to the argument made by appellant in criticism of the instruction obtained by appellee, which authorized the jury to adjudge punitive damages if "the said failure to perform its public duty was reckless or wanton or grossly negligent or willful."
It is argued that the word "reckless" used in this instruction means no more than simple negligence, and many of the courts of the country have so held as may be seen by reference to 53 C.J., pp. 549-551. Other courts have held that the word imports a heedless indifference to consequences, and our own court in Chicago, St. L. N.O. Railroad Co. v. Scurr, 59 Miss. 456, 464, 42 Am. Rep. 373, said that "gross negligence is synonymous with recklessness," which means, of course, that recklessness is synonymous with gross negligence, and in the concluding portion of the opinion in that case it was said that punitive damages may be inflicted "for recklessness, wilfulness or insult." All our later decisions have followed that case in respect to the meaning in instructions of the words "recklessly" or "reckless;" and it is beyond debate that exemplary damages may, in the discretion of the jury, be imposed for gross negligence.
Affirmed.