Biloxi City Railroad v. Maloney

74 Miss. 738 | Miss. | 1897

Stockdale, J.,

delivered the opinion of the court.

We have examined the record in this case carefully and thoroughly, and it is evident that a large portion of the verdict was composed of exemplary or punitive damages. Most of the instructions given at the instance of plaintiff were in support of exemplary damages, and one of defendant’s instructions was modified in that direction by the court. Much of the vigorous argument of appellee’s counsel is pointed to sustain appellee’s right to punitive damages. From a careful scrutiny of the testimony, and an examination of all the authorities cited by counsel on both sides, taking into view the interview between the general manager of the railroad and Mr. Maloney, the son and agent of the owner of the property claimed to be injured, and who attended to practically all her business, as testified to by Mr. Maloney himself, and as testified to by Mr. Burkland, general manager (and not disputed by Mr. Maloney when reintroduced as a witness), when the work was just begun, and that the work had progressed very far when the letter was written by the agent of the owner that the trestle must be removed, and the interview with the general manager with the owner herself, when ‘ ‘ the work was not quite finished. ’ ’ And, in view of all the facts in proof in the case, including the actions of Mr. Burkland, general manager of the railroad, and with whom all the communications and interviews about the matter were had, who seems, so far as the record shows, to have been always polite, evincing a disposition to accommodate, rather than inconvenience people — offered to do anything in his power to avoid injury or inconvenience to the owner or the property of Mrs. Maloney; offered to remove the trestle on the other side of the street to avoid inconvenience or annoyance to her. He removed the trestle from that street before the trial of this cause, and the owner of the property did not testify in the case. In all the actions and efforts of those people (defendants below) to construct that public improvement, there does not appear to have been such wanton conduct or wilful wrongdoing or malicious or insulting conduct as warranted or will sustain a verdict for vindictive damages. Having no guide to enable us to divide the verdict and judgment as to real and punitive damages, we have only the alternative to remand the cause for rehearing before a jury.

The judgment of the coiort below is reversed and a new trial granted, and the cause remanded.