#### SANDERS HARRIS v. QUEEN CITY COACH COMPANY.

(Filed 24 September, 1941.)

1. Damages § 9—

An instruction to the effect that if the jury found that defendant acted willfully and maliciously in committing the wrong that then it was in the discretion of the jury as to the amount that it would fix as punitive damages, is error, since the finding of willfulness and malice does not in itself entitle plaintiff to recover punitive or exemplary damages, but both the awarding of punitive damages and the amount to be allowed, if any, rests in the sound discretion of the jury.

*682. Damages § 8: Carriers § 6—

An instruction that if defendant carrier declined to give plaintiff a seat in its bus because plaintiff is a Negro, to answer the issue of willfulness and maliciousness in plaintiff’s favor, is held erroneous, since such refusal under certain circumstances might be actuated by protective or benevolent impulses rather than by malice.

Appeal by defendant from Johnston, Special Judge, at March Term, 1941, of BtjNcombe.

This action is stated in plaintiff appellee’s brief to be “to recover compensatory and exemplary damages from the defendant by reason of the defendant’s willful and deliberate failure and refusal to transport bim on its bus from Butherfordton to Asheville in an empty seat defendant had in the rear of the said bus at the time.”

There was evidence tending to show that the plaintiff, a colored preacher, purchased at the defendant’s bus station in Butherfordton a ticket to Asheville; that when the bus arrived at Butherfordton there was at least one vacant seat in the rear thereof; that when the plaintiff entered the bus the driver started to seat him on the vacant seat in the reár, but when one of the passengers, a white man sitting in the rear of the bus, shook his head at the driver, the driver told the plaintiff he could ride in the front of the bus in a space near the entrance thereto, and that when the plaintiff stated it would be dangerous to ride there the driver told him to get off the bus; that the plaintiff did get off the bus and it was driven off without him; that the plaintiff surrendered his ticket to the ticket agent from whom he had purchased it and was refunded the amount he had paid therefor; that the plaintiff was caused to miss an appointment to preach in Asheville, that he was exposed to the weather, and that he was damaged and humiliated by being refused transportation on the bus operated by the defendant as a common carrier.

The jury, in response to issues submitted to them, found that the defendant wrongfully refused to transport the plaintiff, and assessed his compensatory damages at $200.00, and further found that the defendant willfully and maliciously refused to transport the plaintiff, and assessed his exemplary or punitive damages at $600.00.

From judgment predicated on the verdict the defendant appealed, assigning errors.

Sanford W. Brown for plaintiff, appellee.

Williams & Goclce for defendant, appellant.

ScheNCK, J.

The defendant, appellant, assigns as error the following excerpt from his Honor’s charge: “If you answer that issue (the third issue relating to alleged willfulness and maliciousness of the refusal of *69tbe defendant to transport tbe plaintiff) yes, tbat is if yon find that tbe wrong done tbis boy was done in rudeness, witb malice, witb disregard to tbe rights of others, then answer tbat issue yes, or if you find tbat be was declined tbat seat because be was a Negro, answer tbat issue yes. If you fail to so find answer it no.

“Then if you say yes to tbe issue, it is a question in your sound discretion as to what amount you will fix as punitive damages in tbis case, not to exceed $1,000.00.” We are constrained to sustain tbis assignment of error.

Tbis charge was tantamount to an instruction tbat tbe finding by tbe jury tbat tbe refusal of transportation was willful and malicious ipso facto entitled tbe plaintiff to recover exemplary or punitive damage, tbe amount of which was in tbe sound discretion of tbe jury. We do not understand such to be tbe rule. Tbe rule as gleaned from tbe authorities is tbat upon tbe finding by tbe jury tbat tbe action of tbe defendant was willful and malicious, tbe jury may in their sound discretion, determine whether they would award exemplary or punitive damage. In other words, tbe result as a matter of law is not tbat tbe plaintiff is entitled to exemplary or punitive damage upon tbe finding of willfulness or maliciousness in tbe action of tbe defendant, but tbe result of such finding is to vest in tbe jury tbe discretion to determine whether tbe plaintiff is entitled to recover any such damage; and, further, if tbe jury determines tbat tbe plaintiff is entitled to recover such damage, tbe amount thereof is to be fixed by them in tbe exercise of their sound discretion.

“Both tbe awarding of punitive damages and tbe amount to be allowed, if any, rest in tbe sound discretion of tbe jury.” Ford v. McAnally, 182 N. C., 419, 109 S. E., 91.

“A jury is never compelled to award punitive damages. If tbe evidence is such as to support an award of punitive damages, it is still discretionary witb tbe jury as to whether such damages will be allowed, subject only to tbe inherent power of tbe court to set aside an excessive or disproportionate award. As said in Hayes v. R. R., 141 N. C., 195, 53 S. E., 847: ‘This Court has said in many cases tbat punitive damages may be allowed, or not, as tbe jury sees proper, but they have no right to allow them unless they draw from tbe evidence tbe conclusion tbat tbe wrongful act was accompanied by fraud, malice, recklessness, oppression, or other willful and wanton aggravation on tbe part of tbe defendant. In such cases tbe matter is within tbe sound discretion of tbe jury.’ Knowles v. R. R., 102 N. C., 59, 9 S. E., 7; Smith v. Ice Co., 159 N. C., 151, 74 S. E., 961; Motsinger v. Sink, 168 N. C., 548, 84 S. E., 847; Huffman v. R. R., 163 N. C., 171, 79 S. E., 307; Cobb v. R. R., 175 *70 N. C., 130, 95 S. E., 92; Ford v. McAnally, 182 N. C., 419, 109 S. E., 91.” Robinson v. McAlhaney, 214 N. C., 180, 198 S. E., 647.

It will be further observed that his Honor used these words: . . or if you find that he (the plaintiff) was declined that seat because he was a Negro, answer that (the third) issue yes.” We do not apprehend that it necessarily follows as a matter of law that the declining of a seat in a bus by a common carrier to a passenger because he was a Negro was a willful or malicious action. Circumstances are conceivable under which the declining of a seat in a bus to a passenger because of his race might be actuated by protective or benevolent impulses. The most for which such action could be held would be evidence of willfulness and maliciousness.

As there must be a new trial for the error assigned, any discussion of the other interesting questions presented in the briefs, which are not likely to again arise, becomes supererogatory.

New trial.