The opinion
Brown, J.
I concur in the conclusion of the Court that the owner of a mileage book similar to the one in evidence in this case is compelled under the terms of the contract to present it at an agency station and receive a ticket in exchange for the mileage strip. If the traveler fails to do this he is not entitled to transportation and may be lawfully ejected from the train.
But where the traveler complies with the contract on his part and the company fails to give him' the requisite ticket in exchange for the mileage strip, then the company, being at fault, may not lawfully repudiate the mileage contract and eject the passenger.
For this reason, upon the evidence and findings in this case, I think the plaintiff is entitled to recover actual or compensatory damages.
But I am of opinion that the verdict of five thousand dollars should have been set aside by the trial judge and that this Court has the power to review his ruling in refusing to set it aside.
1. It is contended by the defendant that there is no evidence whatever to support a verdict for $5,000 compensatory damages and that it is perfectly manifest that the jury awarded punitive or vindictive damages in direct disobedience of his Honor’s instructions.
I think this contention is well founded and that the ruling below involves a matter of law and legal inference which this Court has the right to review. It is admitted that upon all the authorities from Holmes v. R. R., 94 N. C., 319 , down to the present the plaintiff has laid no foundation for punitive damages. Then what is there in the evidenpe to support a verdict for $5,000?
The case on appeal contains no evidence whatever upon the issue of damage except these words: “That the plaintiff entered the train, and, when the conductor called for his ticket, made a statement of the foregoing facts to the conductor, and the de *582 fendant’s conductor, without any rudeness and without any unnecessary force, when the train stopped at Black Creek, put the plaintiff off and refused him the privilege of getting back on the train, although he then offered to pay his fare.”
The plaintiff took the next train for Goldsboro, his place of destination, only a few miles distant. The plaintiff does not testify that he suffered any humiliation, or mental distress or any personal inconvenience even. In mental anguish cases the plaintiff is required to testify at least that he suffered mental anguish before he can recover, except in the cases of relationship so close that mental anguish may be presumed. In this case there is nothing to found a presumption upon, and no testimony upon which actual damage can be fairly estimated. It is a bald case of inflicting smart money or punitive damages directly in violation of his Honor’s charge and of the laws of the State.
2. It is also contended by the defendant that the verdict is so grossly excessive, so obviously disproportionate to the injury inflicted that it shows conclusively that the jury were influenced by passion, partiality and prejudice, and that his Honor erred in not setting it aside on that ground.
I agree that the primary duty of guarding against an excessive verdict rests with the trial court and that ordinarily this Court will not review the action of the lower court.
But in furtherance of justice and right it is the rule in all appellate courts to set aside the judgment and order a new trial where the damages are so excessive as, in the language of Chief Justice and Chancellor Kent, “to strike mankind at first blush as being beyond all measure unreasonable and outrageous and such as manifestly show the jury to have been actuated by passion, partiality or prejudice.” Coleman v. Southwick, 9 Johns. N. Y., 45; 6 Am. Dec., 253 , and cases cited in notes. Where the damages are so utterly disproportionate to the injury as to induce a well grounded belief that they must have been the result of passion and prejudice all appellate courts interfere, and that this is so, we have only to turn to Yol. 16, p. 9, Am. & Eng. Annotated Cases, where the decisions from all the courts of this country and Great Britain are collected.
*583 In bis valuable article on Appeal and Error, 3 Cyc., p. 381, tbe author, the Hon. Walter Clark, the present Chief Justice of this Court, says: “A verdict will not be disturbed as excessive unless it is so grossly disproportionate to the measure of damages or so palpably against the evidence as to shock the conscience and raise an irresistible inference that it was influenced by passion, prejudice, or corruption, and especially so after the trial court has refused to set it aside.”
In support of his text the learned author cites cases from every appellate court in this Union, except this Court, whiclj he puts down as the only exception to the rule. I do not think this Court has ever passed upon this question. We have generally held that we would not ordinarily review the court below in dealing with excessive verdicts, but nowhere has this Court admitted its impotence to deal with a verdict so grossly excessive as to shock our sense of justice and propriety.
Such case is now presented for the first time, and we should follow the xirecedents of all other appellate courts, for they are founded in reason and justice. In the A. & E. Ency. of Law, Vol. VIII, pp. 629-630 such excess in a verdict is treated as valid ground for the appellate court to set aside a verdict.
In support of this doctrine the .author cites opinions from the Federal Court and from the courts of the following States: Alabama, California, Georgia, Illinois, Indian Territory, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Missouri, New York, Ohio, Oklahoma, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin.
Current Law, Vol. XI, p. 997, says: “Verdicts for damages will be interfered with only where they show wilful disregard of the evidence or are so grossly disproportionate to the actual damages shown as to indicate passion or prejudice,” and cites decisions from a great many States in support of this position.
That the verdict rendered in this case is so grossly excessive as to manifest prejudice, and a wanton disregard of all the evidence and the charge of the court, is. shown by all the precedents. I will cite only a few: Olson v. R. R. (Washington Supreme Court), 96 Pac. Rep., 150 ; R. R. v. Hull (Kentucky *584 Court of Appeals), 66 S. W. Rep., 27 ; R. R. v. Watson (Kentucky Court of Appeals), 78 S. W. Rep., 175 .
In the case of Olson v. R. R., the plaintiff was wrongfully ejected from the train, but without any unnecessary force or rudeness, and he was given a verdict for $800. This verdict was set aside by the Supreme Court of "Washington on the ground that excessive damages were allowed under the influence of passion or prejudice.
Tbe Court says: “Tbe verdict in this case is out of all reason. There was no financial loss; there was no injury to tbe person; there was a naked violation of a technical right which would entitle the respondent to little more than nominal damages. He was a man of mature years. There were but two or three other passengers on the train, and if they saw what transpired it could in no manner reflect on the respondent, as a mistake of some kind was apparent. The claim of the respondent that he was or might be taken for a hobo stealing a fifteen-cent ride, with his compass, maps and grip, is fanciful, to say .the least. Mistakes will occur to the most careful and the most competent; and if every mistake in the business world were to be followed by such consequences as this, the transaction of ordinary business would become exceedingly hazardous. Had the like mistake occurred between private individuals, followed by the same inconvenience and annoyance, the jury would grudgingly allow nominal damages, if they suffered a recovery at all. The fact that the appellant is a railway company should not weigh with the jury, and does not weigh with this Court.”
In Davis v. R. R., 35 Wash., 203 , 66 L. R. A., 802, the wrongs suffered by the plaintiff were greater than those disclosed by the record before us, yet this Court set aside a verdict of $750, saying that the evidence showed little more than a bare violation of a technical legal right, which caused a momentary annoyance to the plaintiff.
In Cunningham v. Seattle Electric Ry. Co., 3 Wash., 471 , and Shannon v. R. R., 44 Wash., 321 , recoveries were reduced to $500, and the wrong and humiliation to which the plaintiff in each case was subjected were incomparably greater than in this case.
*585 In R. R. v. Jordan (Ky. Court of Appeals), 66 S. W. Rep., 27 , a young girl, eight years old, was wrongfully put off the train and was entertained during the interval between that train and another at the home of the station policeman; The jury rendered the verdict for $250. The Court of Appeals set aside the verdict as grossly excessive.
In Sloan v. R. R., 32 L. R. A., 193, the Supreme Court of California set aside a verdict of $1,400 as grossly excessive, where a woman was wrongfully put off a train and obliged to walk a mile and suffered during the night from insomnia. The Court wisely says: “While the amount of damages that may be awarded in a case like the present is in the discretion of the jury, it must be a reasonable and not an unlimited discretion, and must be exercised intelligently and in harmony with the testimony before them. We think that the jury in the present case must have been influenced by other considerations than the testimony before them in arriving at the amount of their verdict.”
In R. R. v. Wilsey, the Court of Appeals of Kentucky held a verdict of $2,500 grossly excessive and indicative of prejudice and partiality, where the passenger was wrongfully ejected and had to walk two miles to a depot. 5 L. R. A., 855.
In R. R. v. Turner, 43 L. R. A., 140, the Tennessee Supreme Court pronounced a verdict for $300 grossly excessive under circumstances very similar to this case.
The fact that the court remitted one-half of the verdict will not correct the vice in the verdict itself. In setting aside a grossly excessive verdict the Court of .Appeals of Illinois says in R. R. v. Charters, 123 Ill. App., 327 : “We, however, believe that no case can be found in which a judgment, based upon a remittitur, although approved by the trial judge, has been allowed to stand where the reviewing tribunal is satisfied from the record that the verdict rendered was based upon passion or prejudice, or was founded upon a misconception of the evidence. In such a ease the infirmity pervades the entire verdict, and the remission of the one-half or of any other part of the whole amount does not free the remaining part from the taint. The courts will not take money or other pro.perty from one and give *586 it to another, except upon a fair trial in accordance with the forms of law. This principle is illustrated by the following cases: R. R. v. Cummings, 20 Ill. App., 147 ; R. R. v. Binkopski, 72 Ill. App., 31 ; Sterling H. Co. v. Calt, 81 Ill. App., 602 ; Lockwood v. Onion, 56 Ill., 512 ; Loewenthal v. Streng, 90 Ill., 74 .”
I believe that this Court has the inherent power to set aside a grossly excessive verdict which manifests that it is the result of prejudice and passion and a wanton disregard of the evidence as well as the charge of the court.
That this is a case where the power should be exercised is to my- mind perfectly plain, for the amount of the verdict must strike any one as being an enormity, when it is admitted that the plaintiff suffered no substantial damage, physical or mental, or in his business. No such verdict as this upon such state of facts would ever have been rendered between individuals or against any defendant except a railroad corporation.
The owners of railways are compelled to operate them with employees and agents. Some of these will be negligent and make mistakes. It is not in human nature never to err. While the company is properly held responsible for such negligence and mistakes it should be dealt with fairly and justly and not be made to pay a sum vastly disproportionate to any injury inflicted by its servants.
The masses of the people are interested in maintaining the railway systems of the country in a high degree of efficiency, but if these great instrumentalities of commerce are to be mulcted in such extraordinary and unwarranted damages as in this case, where no real injury has been inflicted, they will soon be bankrupt, and the country will be the sufferer, as well as the owners of the property.
The reasons which prompted the railroad companies to adopt this mileage book regulation is commented on in a concurring opinion in this case, otherwise I would not deem it necessary to notice them, as they are not discussed in the opinion of the Court. I have never heard it contended that the regulation in question was adopted by the railways to prevent dishonesty upon the part of the conductors or other employees. It is perfectly* *587 patent that tbe regulation has no bearing- upon conductors or other employees, for whether the conductor takes up a ticket or mileage book coupons from the passenger, he handles no money, as that in either case is taken in by the ticket agent.
I hare heard that the regulation, was adopted to prevent imposition upon the railways, and also to greatly facilitate settlements between different railroad systems, who issue interchangeable books. However that may be, it is a matter of common knowledge that the regulation in question was thoroughly investigated by the last General Assembly and that body declined to interfere with it.
The reasonableness of the regulation has been upheld by every court that has passed upon it and in a case as late as 22 October, 1910, the Supreme Court of South Carolina in an elaborate opinion unanimously hold that the regulation in question is valid and binding upon a passenger who elects to use mileage books. But that Court holds, as we now hold, that the company must furnish the facilities for exchanging the coupons for a ticket, and in case the company fails and neglects to do so when the traveler applies, then he has the legal right under the mileage book contract to tender his book to the conductor for his fare. Des Portes v. R. R., 69 S. E. Rep., 149 .
Mr. Justice Walker concurs in this opinion.