
    Yazoo & Mississippi Valley Railroad Company v. Frances Fitzgerald.
    [50 South. 631.]
    1. RailROAD. Passengers-. Irregularity in tickets. Insults. Punitive damages.
    
    Where a woman, about to take passage on a railroad train, to a point in another state, was induced by the carrier to purchase a mileage book, good for transportation only within this state, and board the train on the idea that it was .good to her destination, and, after her mileage had been honored by two conductors in this state and the train was near the state line, was aroused at night from sleep in her berth on a sleeping car, rudely treated and insulted by a third conductor because of. the irregularity in the evidence of her right to be carried, and, after reaching her destination, made to pay fare from the state line, she may in the discretion of the jury recover punitive damages of the railroad company.
    2. Same. Excessive verdict. Facts.
    
    
      ■ Facts of the case considered and two thousand five hundred dollars damages adjudged excessive.
    FROM tiie circuit court of Issaquena county.
    IioN. JohN N. Bush, Judge.
    Mrs. Fitzgerald, appellee, was plaintiff in tire court below; tbe railroad company, appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court.
    The appellee, Mrs. Fitzgerald, in company with her sister, being desirous of going from Eosedale, Mississippi, to New Orleans, Louisiana, was persuaded by the railroad company’s ticket agent at Eosedale to purchase a “family mileage book” which had recently been adopted by the railroad company as permissible for use by passengers in lieu of the regular tickets, the agent assuring appellee that such mileage book would entitle both herself and sister to travel thereon. Appellee accordingly purchased a one-thousand mile mileage book for $25, and, after having her baggage checked, boarded appellant’s south-bound passenger train for New Orleans, in company with her sister. The first two conductors on the train accepted her mileage, the second of the two tearing out sufficient mileage from the book to carry the two passengers to their destination, as they were occupants of a sleeper and it was nighttime. Later, after appellee and her sister had retired for the night in the sleeper, a third conductor, at about three o’clock in the morning, awakened appellee, telling her that her mileage book was not good for transportation beyond the Mississippi state line, and that she would have to pay fare from the Mississippi line to' New Orleans. Appellee testified that the conductor was rude and insulting in demeanor toward her, that he did not explain tbe situation fully, but demanded money; tbat, when sbe asked for explanation, be stated in reply, “You will bave to pay me money, or get off tbe trainand, tbat wben sbe stated tba.t sbe would pay bim no further fare be told ber: “You needn’t try to bluff me, like you bave done tbe other conductor. I am an old man on tbe line, and know my business. Your mileage is all wrong. You will bave to pay me money, or get off of tbe train.” Appellee refused to malee any payment as demanded by the conducter, but ber sister offered to pay tbe conductor in tbe morning before they should leave tbe train, to which tbe conductor finally agreed. On arriving in New Orleans in tbe morning, tbe two ladies went with tbe conductor to tbe company’s superintendent where tbe rules of tbe company with regard to tbe use of such mileage transportation were explained to them, but tbe superintendent, who bad received appellee’s mileage book from tbe conductor, declined to return it and required ber to take in exchange another form of mileage book for which sbe was compelled to pay an additional sum of five dollars. Appellee testified further tbat, before sbe and ber sister left the train, tbe conductor approached them and told ber that if sbe bad been a man instead of a lady be would bave “bandied ber” in a different manner from what be bad done. Tbe conductor, testifying in behalf of tbe appellant company, denied tbat be was in any way insulting or threatening in bis behavior, and affirmed tbat be simply, in conformity with bis duty as conductor, awakened Mrs. Fitzgerald quietly, and told ber tbat tbe mileage book was not good for transportation beyond tbe Mississippi state line, and that she would bave to pay the fare, two dollars and fifty cents, from tbe state line to New Orleans. Tbe case was submitted to tbe jury under instructions permitting tbe finding of punitive as well as actual damages. Tbe verdict returned in appellee’s favor was for $2,500.
    
      Mayes & Longstreet, for appellant.
    Construing this case most favorably for appellee, and accepting ber version of tbe occurrence on tbe Pullman sleeper, and accepting ber statement of the words used by tbe conductor, there was no cause of action for recovery of punitive damages against appellant.
    It may be that appellant’s agent at Nosedale made a mistake in informing Mrs. Fitzgerald that the mileage book was better for use than an ordinary ticket, yet the mistake of this ticket agent is not the ground of complaint charged in the declaration. It is the action of the conductor who, in the early morning, awakened Mrs. Fitzgerald, telling her that such mileage book was not valid beyond the Mississippi state -line, and that she would have to pay fare from that point, to- New Orleans. Now, the conductor was correct in that he was not authorized to accept any of the mileage book for transportation beyond the Mississippi state line; and there was no error on his part in calling the passenger’s attention to such fact.
    Accordingly, the matter is reduced down to1 a consideration of whether the language of the conductor was insulting and his manner rude. The words used by him were not more than brusque and awkward in expression. The expression, “You cannot bluff me like you did the other conductor,” was a mere roughness of speech, and of itself indicated no malice or wilful disregard of the rights of appellee. Illinois, etc., B. Co. v. Broolchaven Machine Co., 71 Miss. 663; Kansas City, etc., B. Co. v. Fite, 61 Miss. 373; Mississippi, etc., B. Co. v. Gill, 66 Miss. 39.
    The distinction between an act against legal right without malice, and an act against legal right with malice or insult, should be careful1' observed by the .courts. Alabama, etc., B. Co. v. Burnell, 69 Miss. 652; Alabama, etc., B. Co. v. Drum-mond, IS Miss. 713.
    But even if appellee were entitled to recover, he:£ recovery was excessive. See Louisville; etc., B. Co. v. Higgins, 64 Miss. 80; Memphis, etc., B. Co. v. Green, 52 Miss. 364.
    
      H. P. Farrish and Flowers, Fletcher & Whitfield, for ap-pellee.
    
      Tbe appellee was lawfully on tbe train as a passenger, traveling on a family mileage book wbicb bad been sold by tbe appellant, tbrougb its ticket agent at Rosedale, for tbe expressed purpose that appellee might make this particular trip over appellant’s line. She was rudely awakened at an unusual bour, .about three o’clock in tbe morning, .in an unusual manner, and was roughly accosted with a demand for money. If it be conceded that the conductor bad a right to insist that tbe transr portation was invalid, surely be should have approached Mrs. Fitzgerald at a seasonable time and with a courteous explanar Non. He certainly knew that tbe other conductors bad accepted the mileage. It was in the highest degree insulting for him to approach her with the coarse threat to put her off tbe train unless the money was forthcoming. She was no trespasser. As a passenger she was entitled to courteous treatment. Chicago, etc., B. Co. v. Curr, 59 Miss. 496; Forsée v. .Alabama,, etc., B. Co., 63 Miss. 66; Illinois, etc., B. Co. v. Harper, 83 Miss. 560.
    The case of Illinois, etc., B. Co. v. Beid, 93 Miss. 455, 46 South. 146, 11 L. R. A. (N. S.) 344, is very much like the -case ¿t bar. Reid had a ticket to Magnolia, which had been validated by the ticket agent at St. Louis, Missouri, and the railroad gateman had passed him through the gate in the St. Xouis station, and the first conductor on the train had made no ■objection to the ticket. A later conductor on the same train refused to stop the train at Magnolia, but compelled Reid to ■disembark at McComb. This court upheld an award of punitive damages. Reid had attempted to explain to the conductor the facts about his ticket, but the conductor, in a rude manner, had pitched the ticket back into’ the lap of Reid, saying “Oh, I lave heard that before.” Under the authority of the cited case, it is evident that appellee, Mrs. Fitzgerald, is entitled to the recovery of punitive damages.
   Smith, J.,

delivered the opinion of the court.

On the evidence for the plaintiff, which was accepted by the jury, she was entitled to recover punitive damages. Illinois, etc., R. Co. v. Reid, 93 Miss. 455, 46 South. 146, 17 L. R. A. (N. S.) 344.

We think, however, that the verdict was excessive, but, if appellee will remit down to $1,500, the judgment will be affirmed ; otherwise, it will be reversed, and the cause remanded..

Affirmed on remittitur.

Mates, J.,

delivered the following dissenting opinion.

When the facts of this case are thoroughly examined it is my judgment that it does not present a case for the allowance of punitive damages. I think the judgment should be reversed and the cause remanded.  