
    Louisville & Nashville Railroad Company v. Tilleson.
    February 15, 1912.
   Atkinson, J.

1. In an action for damages against a railroad company for the wrongful ejection of a passenger, the petition contained three separate counts. The first and third were similar, except that the latter contained additional allegations as to why the ejection was wrongful. The second was similar to the first, except that it contained additional allegations as to aggravating circumstances, thus laying the foundation for the recovery of exemplary damages. On the trial it was error to instruct the jury in such manner as to authorize them to consider the case as one for three separate causes of action for an amount equal to the sum of the damages laid in the three counts, and otherwise confuse and lead the jury to conclude that they would be authorized to find damages of the same character under each of the separate counts, thereby rendering it possible that a verdict might be rendered for double damages for one and the same tort.

(a) It does not appear that such error was harmless because the jury, in rendering the verdict for a lump sum, recited that it was based only on counts one and two.

2. Other portions of the charge excepted to were not entirely accurate; but in the light of the charge as a whole, and of the evidence^ the criticisms upon them were not sufficient to require a new trial.

Judgment reversed.

All the Justices concur, except Hill, J., not presiding.

Action for damages. Before Judge Morris. Cherokee superior court. October 3, 1910.

D. W. Blair, Tye, Peeples & Jordan, and B. W. Coleman, for plaintiff in error.

Dorsey, Brewster, Howell & Heyman and Leon C. Greer, contra.  