April 21, 1923. The opinion of the Court was delivered by
The plaintiff was notified by a telegram that his child was sick at home. The plaintiff was in Columbia in attendance upon the Legislature, and his child was sick at his home in Conway. In order to go from Columbia to Conway by rail, it is necessary to go to Chadbourn in North Carolina and change cars for Conway. When the train got to Florence, it was two hours late, and the plaintiff was uneasy about making connection at Chadbourn, and made inquiry at Florence. He could learn nothing in Florence about the matter. After leaving Florence, the plaintiff appealed to the conductor to find out for him if the train would be held at Chadbourn. The plaintiff says that at Marion he was informed that the train to Conway had left Chadbourn, and he would have to wait at Chadbourn for a later train, and be delayed several hours; that the conductor told him that, if he was obliged to be at home within a reasonable time, it would be well to get off of the train and go across from Marion to Conway by automobile. The plaintiff got off of the train at Marion and engaged an automobile to take him
across to Conway. The automobile broke down on the way. The day was exceedingly cold, and the roads were in a bad condition. The driver of the automobile refused to go any further. The plaintiff succeeded in getting another automobile. Automobile No. 2 broke down, and the plaintiff procured a third automobile to finish the journey. The plaintiff spent hours on the road, and suffered with the cold and was made sick by the exposure. He did not arrive at home until 8 o'clock at night. It seems that, while the train between Chadbourn and Conway did leave the station at Chadbourn, as reported, the engine was delayed in the yard just after it started, and it took so long to fix it that, after it was fixed, it waited for the train which the plaintiff had left at Marion, and enabled the other passengers for Conway to reach Conway at 3 o'clock, or five hours ahead of the plaintiff. This action is brought for the sickness of the plaintiff, produced by his exposure between Marion and Conway. The jury found for the plaintiff, and the defendant appealed.
I. The first assignment of error that needs consideration is the charge of his honor, the presiding Judge. The charge reads in part: "Mr. Foreman, and Gentlemen of the Jury: In the trial of this case, in which Walter L. Mishoe seeks damages from the Atlantic Coast Line Railroad Company, the Court finds itself surrounded by a mass of technical law which it has to pass upon, because in a case like this, where the journey is through another state, we are called upon and required to apply certain principles of the law of the United States, passed by Congress and construed by Federal Judges, and therefore the burden is thrown upon a State Judge of not only being familiar with and being able to explain to the jury the law of one state, but the laws of the United States, as construed and intrepreted by the United States Courts to the different departments of the State Governments. Nevertheless the Courts have to pass upon these matters,
and to do the best they can and try to lay the law before the jury."
"The first idea to get into your mind, gentlemen, is that Mr. Mishoe is coming in here and claiming damages, both actual and punitive, against the Atlantic Coast Line Railroad Company, based upon certain charges, which he alleges to have been negligent conduct on the part of the railroad company, and that, as a proximate result of these alleged negligent acts, or any one of them, he was injured. And furthermore, on the basis that the charges made against the railroad company were not only negligent, but willful, wanton, and reckless, therefore he claims punitive as well as actual damage."
"Now, we will dispose of the matter of punitive damage first under the Federal Law, in order that we may get clearly that point."
"Under the state law, which was in force until recently, the idea was that, where an act was committed that was willful, wanton, and reckless, and as a proximate result of it there was an injury sustained, in that case a jury, under the state law, could find not only actual damages, but punitive damages, to punish the railroad for committing such willful, wanton, and reckless acts, and to prevent them from committing such like acts in the future."
"Under the Act of Congress, the railroads having such a grasp upon Congress and being able to get through almost any legislation, under the law and decisions thereunder by Federal Judges, if the transit of a passenger is through another state, it does not matter how slightly it may be, the journey is denominated an interstate journey, involving more than one state, and the Federal Law says, and we are bound by that law, that in such a case as that the party injured, even though the cause of his injury was willful, wanton, and reckless conduct on the part of the railroad, bringing about as a proximate cause his injury, that he cannot recover more than his actual damages, unless it is shown
on his behalf that the conduct of the railroad company in committing the willful, wanton, and reckless act resulting in the direct injury to the person was conduct authorized by the officers directing the railroad — authorized directly by them. As if one of the high officials were to come up to a conductor and say to him: `I authorize you to throw this passenger off the train.' There you have the direct authorization and direction to an official to perform the act by one authorized to do so. In such an event as that, the party could get punitive damages by reason of the fact that the act on the part of the official which brought about the injury by throwing the man off the train was done by the direct direction of one in control. Or it may be shown that, though such a person was not present, and did not directly authorize the act or wrong whereby the injury was incurred, yet if the higher authorities or parties in charge of the railroad, acquiesced in the conduct of that official subsequently, and of such acquiescence you are to judge from the testimony, whether, though the wrong conduct was not done by the official in control of the system, yet that there was ratification after it had been done."
The jury might infer from this statement that the railroads and Congress are in colusion to protect the railroad from the consequences of their unlawful invasions of the rights of the traveling public. The statement is not only unlawful, but highly prejudicial to the appellant. Generally, a Judge charges a jury offhand, as it is called, and he does not say just what he means, and it is doubtless true that his Honor did not intend to reflect upon Congress, or the class to which the defendant belonged; but none the less it is true that it was calculated to prejudice the defendant, at least in the estimation of the jury, and was reversible error.
II. I think a verdict should have been directed for the defendant. The defendant undertook to carry the plaintiff by rail safely from Columbia to Conway, so far as human
care and prudence could provide. The plaintiff, knowing the climatic conditions as well as the defendant's agents and servants did, voluntarily left the train at Marion and undertook to go across country to Conway. The defendant did not produce the extreme cold from which the plaintiff suffered. It did not own the highway on which the plaintiff undertook to travel. The defendant could not repair any defects therein. No agent of the defendant selected the automobiles or their drivers.
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April 21, 1923. The opinion of the Court was delivered by
The plaintiff was notified by a telegram that his child was sick at home. The plaintiff was in Columbia in attendance upon the Legislature, and his child was sick at his home in Conway. In order to go from Columbia to Conway by rail, it is necessary to go to Chadbourn in North Carolina and change cars for Conway. When the train got to Florence, it was two hours late, and the plaintiff was uneasy about making connection at Chadbourn, and made inquiry at Florence. He could learn nothing in Florence about the matter. After leaving Florence, the plaintiff appealed to the conductor to find out for him if the train would be held at Chadbourn. The plaintiff says that at Marion he was informed that the train to Conway had left Chadbourn, and he would have to wait at Chadbourn for a later train, and be delayed several hours; that the conductor told him that, if he was obliged to be at home within a reasonable time, it would be well to get off of the train and go across from Marion to Conway by automobile. The plaintiff got off of the train at Marion and engaged an automobile to take him
across to Conway. The automobile broke down on the way. The day was exceedingly cold, and the roads were in a bad condition. The driver of the automobile refused to go any further. The plaintiff succeeded in getting another automobile. Automobile No. 2 broke down, and the plaintiff procured a third automobile to finish the journey. The plaintiff spent hours on the road, and suffered with the cold and was made sick by the exposure. He did not arrive at home until 8 o'clock at night. It seems that, while the train between Chadbourn and Conway did leave the station at Chadbourn, as reported, the engine was delayed in the yard just after it started, and it took so long to fix it that, after it was fixed, it waited for the train which the plaintiff had left at Marion, and enabled the other passengers for Conway to reach Conway at 3 o'clock, or five hours ahead of the plaintiff. This action is brought for the sickness of the plaintiff, produced by his exposure between Marion and Conway. The jury found for the plaintiff, and the defendant appealed.
I. The first assignment of error that needs consideration is the charge of his honor, the presiding Judge. The charge reads in part: "Mr. Foreman, and Gentlemen of the Jury: In the trial of this case, in which Walter L. Mishoe seeks damages from the Atlantic Coast Line Railroad Company, the Court finds itself surrounded by a mass of technical law which it has to pass upon, because in a case like this, where the journey is through another state, we are called upon and required to apply certain principles of the law of the United States, passed by Congress and construed by Federal Judges, and therefore the burden is thrown upon a State Judge of not only being familiar with and being able to explain to the jury the law of one state, but the laws of the United States, as construed and intrepreted by the United States Courts to the different departments of the State Governments. Nevertheless the Courts have to pass upon these matters,
and to do the best they can and try to lay the law before the jury."
"The first idea to get into your mind, gentlemen, is that Mr. Mishoe is coming in here and claiming damages, both actual and punitive, against the Atlantic Coast Line Railroad Company, based upon certain charges, which he alleges to have been negligent conduct on the part of the railroad company, and that, as a proximate result of these alleged negligent acts, or any one of them, he was injured. And furthermore, on the basis that the charges made against the railroad company were not only negligent, but willful, wanton, and reckless, therefore he claims punitive as well as actual damage."
"Now, we will dispose of the matter of punitive damage first under the Federal Law, in order that we may get clearly that point."
"Under the state law, which was in force until recently, the idea was that, where an act was committed that was willful, wanton, and reckless, and as a proximate result of it there was an injury sustained, in that case a jury, under the state law, could find not only actual damages, but punitive damages, to punish the railroad for committing such willful, wanton, and reckless acts, and to prevent them from committing such like acts in the future."
"Under the Act of Congress, the railroads having such a grasp upon Congress and being able to get through almost any legislation, under the law and decisions thereunder by Federal Judges, if the transit of a passenger is through another state, it does not matter how slightly it may be, the journey is denominated an interstate journey, involving more than one state, and the Federal Law says, and we are bound by that law, that in such a case as that the party injured, even though the cause of his injury was willful, wanton, and reckless conduct on the part of the railroad, bringing about as a proximate cause his injury, that he cannot recover more than his actual damages, unless it is shown
on his behalf that the conduct of the railroad company in committing the willful, wanton, and reckless act resulting in the direct injury to the person was conduct authorized by the officers directing the railroad — authorized directly by them. As if one of the high officials were to come up to a conductor and say to him: `I authorize you to throw this passenger off the train.' There you have the direct authorization and direction to an official to perform the act by one authorized to do so. In such an event as that, the party could get punitive damages by reason of the fact that the act on the part of the official which brought about the injury by throwing the man off the train was done by the direct direction of one in control. Or it may be shown that, though such a person was not present, and did not directly authorize the act or wrong whereby the injury was incurred, yet if the higher authorities or parties in charge of the railroad, acquiesced in the conduct of that official subsequently, and of such acquiescence you are to judge from the testimony, whether, though the wrong conduct was not done by the official in control of the system, yet that there was ratification after it had been done."
The jury might infer from this statement that the railroads and Congress are in colusion to protect the railroad from the consequences of their unlawful invasions of the rights of the traveling public. The statement is not only unlawful, but highly prejudicial to the appellant. Generally, a Judge charges a jury offhand, as it is called, and he does not say just what he means, and it is doubtless true that his Honor did not intend to reflect upon Congress, or the class to which the defendant belonged; but none the less it is true that it was calculated to prejudice the defendant, at least in the estimation of the jury, and was reversible error.
II. I think a verdict should have been directed for the defendant. The defendant undertook to carry the plaintiff by rail safely from Columbia to Conway, so far as human
care and prudence could provide. The plaintiff, knowing the climatic conditions as well as the defendant's agents and servants did, voluntarily left the train at Marion and undertook to go across country to Conway. The defendant did not produce the extreme cold from which the plaintiff suffered. It did not own the highway on which the plaintiff undertook to travel. The defendant could not repair any defects therein. No agent of the defendant selected the automobiles or their drivers. The whole injury complained of was incurred on the trip from Marion to Conway, after the plaintiff had severed his connection with the defendant, and due to causes over which the defendant had no control. A suitable automobile and competent driver did enable the plaintiff to complete his journey, which the other automobiles and their drivers could not, or would not, complete. No injury to the sick child was alleged or proven, but the injuries were due solely to the act of God, and the inefficiency of the means selected by the plaintiff. I see no ground upon which a liability of the defendant can be based. The plaintiff may have received injury, and yet the defendant not be liable. The wrong must be the proximate cause of the injury. The proximate cause here was the cold, the condition of the highway, the automobiles, and their drivers.
The Judgment is reversed.
MESSRS. JUSTICES COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS dissent.
MR. JUSTICE MARION: I concur in the view that there was reversible error in the charge as imputed by appellant's first assignment of error. I am not prepared to agree that the verdict should have been directed for defendant.
MR. CHIEF JUSTICE GARY: This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant. The jury rendered a verdict in favor of the plaintiff for $500, and the defendant
appealed upon exceptions, which will be reported together with the complaint and answer.
First, Second and Third Exceptions. The testimony as to the questions of fact mentioned in these exceptions was susceptible of more than one inference; therefore they were properly submitted to the jury.
Fourth Exception. The grounds of the motion for a directed verdict were as follows:
(1) "Because there is no testimony to show that the delay of the train on which the plaintiff was a passenger was due to negligence of defendant."
(2) "Because all the testimony shows that the delay of the train on which plaintiff was a passenger was due to waiting on connections and not to negligence."
(3) "Because it appears from all the testimony that the information furnished the plaintiff by the conductor as to the probability of missing the Conway connection was furnished in good faith, in the exercise of his best judgment based upon the conditions existing at the time, and because defendant should not be held liable because, due to subsequent occurrences, conditions were changed to such an extent that the connection was made."
(4) "Because it appears that the injury suffered by plaintiff, if any, was due, not to negligence of the defendant, but to an intervening cause, to wit: plaintiff's own act in attempting to drive through the country on a bitterly cold day, instead of going to his destination by rail."
If the plaintiff had relied, alone, on the alleged negligence of the defendant in causing him to drive through the country on a bitterly cold day, as alleged in paragraph 7 of the complaint, and had failed to prove such allegations, a motion for the direction of a verdict would have been proper. But there are other acts of negligence, alleged in the complaint, which, if sustained by the testimony, entitled the plaintiff to damages.
Fifth, Sixth, Seventh, Twelth, and Thirteenth Exceptions.
On hearing the motion to settle the case, his Honor, the Circuit Judge thus explained the spirit in which he used the language assigned as error:
"Practically all of defendant's exceptions seem predicated on assumed prejudice on the part of the Court to the defendant. This the Court positively and emphatically denies. * * * Certainly, the weariness of these trials may be sometimes lighted by a little `badinage' and `persiflage,' and excuses put forth for a necessarily prosy charge, and some explanation given the jury for why the charge must be halting."
It is incumbent on the appellant, not only to satisfy this Court that there was error, but also that it was prejudicial to the lights of the appellant. The defendant's attorneys have failed to satisfy us of such fact.
Eighth, Ninth, Tenth, and Eleventh Exceptions. Rule 5, Section 6, of the Supreme Court, contains the following provision:
"Each exception must contain within itself a complete assignment of error, and a mere reference therein to any other exception then or previously taken, or request to charge, will not be considered."
There was a failure to comply with the requirements of said rule, and these exceptions will not be considered.
(There is an appendix to the record herein, which contains a copy of the order of his Honor, the presiding Judge, settling the case, together with the defendant's notice of appeal therefrom and exceptions. They, however, will not be considered, as they were not argued.)
MR. JUSTICE WATTS concurs.