66 So. 324 | Miss. | 1914
delivered the opinion of the court.
This is an appeal from a judgment rendered by the circuit court of Rankin county against the appellant railway company. The verdict of the jury was in these words:
“We, the jury, find for plaintiff, and assess his damages at two hundred dollars actual damages and one hundred dollars punitive damages.”
Upon this verdict the court entered a judgment for three hundred dollars in favor of plainitff. In order that the questions presented for this court’s decision may clearly appear we here copy the declaration, viz.:
“Ivey Daniels, plaintiff, by attorney, complains of the Alabama & Vicksburg Railway Company, defendant, for that, to wit: The defendant is, and was at all times hereinafter mentioned, a railroad company incorporated under the laws of the state of Mississippi, owning and operating a railroad, which runs through said Rankin county, Mississippi. Plaintiff is, and was at the times hereinafter mentioned, the owner in fee simple of a plantation in said- Rankin county, known as the Ivey Daniels*71 place, which, adjoins defendant’s said railroad bed and railroad track. Defendant has so made and now maintains its railroad bed and track so that a great and unusual flow of water stands upon said place after each rain, and said place is thereby greatly injured and depreciated in value, to plaintiff’s damage two thousand dollars.'
“Wherefore plaintiff sues and prays judgment against defendant in the sum of two thousand dollars for his damafes so sustained, and exemplary damages allowed by law, and all costs of this suit. ’ ’
It is contended by appellant that the court erred in granting an instruction for plaintiff authorizing the jury to award punitive damages, because the declaration does not charge defendant with, gross negligence, willful wrong, or any other element necessary to infliction of punitive damages. It is also contended that the court erred in refusing to instruct the jury to find for defendant, because all the evidence disproved the declaration of plaintiff.
In regard to the last assignment of error, it is only necessary to say that we do not so interpret the evidence. It seems clear that plaintiff’s witnesses testified to facts which warranetd the jury in believing that defendant had so maintained its roadbed as to cause an obstruction of the drainage of plaintiff’s land, and this is what the declaration charges. There was evidence warranting an inference that the railroad authorities permitted the obstructions created by them to remain unremoved for a long time after their attention was called to their pres-ence. Besides this, it is not too far-fetched to say that the cutting away of underbrush from the right of way and throwing same in the drains was a willful disregard of the consequences. At least it was not error to submit to the jury the solution of that feature of the case.
In Southern Express Co. v. Brown, 67 Miss. 265, 7 So. 319, 19 Am. St. Rep. 306, this court said:
*72 “.The position assumed by counsel for appellant, tbat tbe plaintiff cannot recover punitive damages because not claimed in tbe declaration, is not. maintainable. Tbe plaintiff demanded five thousand dollars damages for tbe negligent act of tbe defendant, under wliicb it was competent to show tbe character of tbe negligence' and tbe extent of tbe injury inflicted. Tbe jury were very fairly instructed as to tbe circumstances under which punitive damages could be awarded. ’ ’
Tbe declaration in tbe present case does not in express words charge tbat tbe acts complained of were negligent. At most, tbe declaration was defective in not charging tbe character of tbe acts. This defect, if it was a defect, could have been cured in response to a demurrer. Tbe declaration does advise defendant that the actual damages claimed were a depreciation in tbe value of tbe land caused by defendant’s wrongful acts, and it does also demand exemplary damages in express terms.
Affirmed.