
    7701
    TANT v. SOUTHERN RY.
    1. Nonsuit — Verdict—Punitive Damages. — Whether the issue of punitive damages should have been submitted to the jury cannot' be considered in absence of motion for nonsuit or to direct a verdict.
    2. Carrier — Passenger—Ibid.—If an agent of a railroad company make a. contract with a passenger to carry him to a certain point for. a particular sum and another servant of the company consciously refuse to carry out the contract and extort more money from the passenger and expel him from the train, he may recover punitive damages.
    Before Gage J. Bamberg Fall Term 1909.
    Affirmed.
    Action by J. A. Tant against Southern Railway Co. From judgment for plaintiff, defendant appeals.
    
      Messrs. Harley and Best for appellant,
    cite: 62 S. C. 269 ; 2 Rich. 182; 14 Rich. 253; 29 S. C. 265; 12 Ency. 24; 69 S. C. 444; Thomp. on Neg. 476; 29 S. C. 271; 16 Ency. 1st Ed. 392; 64 S. C. 507; 60 S. C. 75; 65 S. C. 42; 2 Hilt. 440; 120 N. C. 320; 90 Tex. 275; 16 L. R. A. 347; 15 Minn. 49.
    
      Messrs. R. C. Hardwick and Wyman and Henderson, contra. Messrs. Wyman and Henderson
    
    cite: 65 S. C. 521; 69 S. C. 330; 64'S. C. 519; 65 S. C. 438; 3 S. C. 596; 35 S. C. 475 ; 53 S. C. 210; 64 S. C. 242; 69 S. C. 110; 72 S. C. 442; 35 S. C. 502; 54 S. C. 502; 76 S. C. 198.
    October 27, 1910.
   The opinion of the Court was delivered by

Mr. Chiee Justice Jones.

Plaintiff recovered judgment against defendant for $475 in this action for damages, actual and punitive, for negligent and wilful refusal to transport plaintiff from Fort Motte in Calhoun county to Denmark in Bamberg county for the sum of one dollar, in accordance with an alleged contract between plaintiff and the ticket agent of defendant at Fort Motte and because of the alleged wilful conduct of defendant’s conductor and collector in unlawfully coercing money from him and in forcing him to leave the train at Bamberg, S. C., a station on defendant’s railway line between Fort Motte and Denmark.

The third exception contends that the question of punitive damages should not have been submitted to the jury, but this question, not having been first raised on the trial by motion for nonsuit or to direct a verdict as required by Rule 77 of the Circuit Court, cannot be considered.

Fogle v. Southern Ry. 83 S. C. 203.

The first and second exceptions relate to the instructions given the jury. The Court was requested to charge the jury:

IV. “If the jury find from the evidence that the servants of the railroad, in charge of its trains, thought that they had a right to demand the payment of $0.03 per mile for each mile over its road traveled by the plaintiff, and as matter of fact had no such right under the circumstances proven by the testimony to exist in this case (whatever such circumstances were, being a matter to be ascertained by the jury from the evidence) but did assert such supposed right, and in so doing acted without knowledge of the plaintiff’s rights, and without any actual wrongful intention or such recklessness or negligence as evinces malice or conscious disregard of the rights of the plaintiff or others, then the jury should not, under the circumstances, punish the railroad company by awarding punitive damages against it.”

Instead of charging in the language of the above request the Court instructed the jury:

“If the ticket agent at Fort Motte, acting within the scope of his authority, made a contract with Tant to carry him for a dollar, the railway company was bound to carry him for a dollar, and if the passenger relied upon that promise and boarded the train for that purpose, and if the other agents of the defendant refused to carry him at that contract, whether they did so in good faith or not, and caused the plaintiff to quit the train before he reached Denmark, then the railroad company is liable in damages to the plaintiff. And if the conductor did so consciously refuse to carry Tant for the price the ticket agent had agreed to carry him for, then the act of those servants may be regarded by the jury as wilful, and you may find such damages as you think right to compensate Tant and punish the railway company. In other words, gentlemen, and in brief, if a principal, to wit, a railway company has many agents, and it acts through one agent and malees a contract another agent cannot consciously set that contract aside and save the responsibility of the principal.”

The appellant contends that the instruction as requested should have been given and that the instruction given incorrectly stated the principle of law as to punitive damages, on the ground that the wrong should be done wilfully, deliberately and recklessly by the agents themselves with a present consciousness of invading the plaintiff’s rights.

We think the charge as given substantially covered the requested instruction and was not therefore prejudicial. Marshall v. Crawford, 45 S. C., 215, 22 S. E. 792; Thompson v. Railway, 78 S. C., 387, 58 S. E. 1094.

Besides the charge was in conformity with the rule as stated in Myers v. Railway, 64 S. C., 519, 42 S. E. 598, and Chiles v. Southern Railway, 69 S. C. 327, 48 S. E. 252, in which the Court declared: “If defendant’s agent, conscious of plaintiff’s rights as passenger, nevertheless invaded that right by exacting and coercing an unlawful payment of money under threat of expulsion from the train, his conduct was wilful or wanton, such as would subject defendant to exemplary damages.”

The judgment of the Circuit Court is affirmed.  