19 Ky.L.Rptr. 1384
Court of Appeals of Kentucky.
Dec. 3, 1897.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by J. Hop Donaldson against the Louisville & Nashville Railroad Company.
From a judgment for plaintiff, defendant appeals.

The appellee recovered a judgment for $500 for the alleged taking up and destruction by appellant's conductor of a 20-trip family ticket, between Corbin and Gray; for requiring appellee to pay a cash fare of 20 cents; and for injury to his feelings, caused by saying, "You are a pretty thing,-trying to beat your way." There was conflict of evidence as to whether the book of coupon tickets tendered by appellee in payment of his fare was a 20-trip family ticket, still good for passage, or a 46-trip school ticket, good only for the month for which it was issued, and which had expired. The weight of testimony is conceded to be that the ticket was a 20-trip one, still in force; and the conductor, by destroying the ticket, which it was his duty in any event to turn in to the auditor of the road, has raised the presumption that, if preserved, the ticket in question would have supported the appellee's claim.

The instructions given appear to us to correctly state the law applicable to the case. It is true that the offensive language charged was not spoken at the time the cash fare was demanded, but when change was given to appellee, some minutes later. This, however, was a part of the same transaction, and took place while the conductor was in the discharge of his duty, and acting as an official of the appellant.

Nor can we agree with the contention of appellant's counsel that the fact that the appellee, in giving his testimony, did not state that he was humiliated or suffered mortification because of the language which he says was used by the conductor, and which, in our view, clearly implied a charge of attempted fraud, precluded the trial court from giving an instruction as to punitive damages. The injury to his feelings and the mortification which he suffered were alleged in the petition, and in his testimony and the testimony of other witnesses produced by him were stated facts from which the jury were authorized to infer that he did suffer mortification and humiliation of mind; and upon this statement of facts, which it appears the jury believed to be true, it was proper for the court to give the instruction.

The sole remaining question is whether the damages awarded were excessive. Upon this point, while this court, upon the evidence presented by the record, might have given a different finding, we see no sufficient reason to disturb the finding of the jury, for we cannot see that the punitive damages awarded by reason of the insulting charge alleged to have been made were necessarily the result of passion or prejudice.

Judgment affirmed.

Ky.App. 1897.
43 S.W. 439, 19 Ky.L.Rptr. 1384


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