While I concur in the view that it was the right of the plaintiff to have his trunk checked to the point of destination named in his ticket. I do not think there was any evidence to warrant a recovery of punitive damages against the defendant for refusing to check beyond Hodges, the junctional point. The statute, while requiring the railroad company to check baggage, does not in terms specify that it shall be checked through to the passenger's destination without respect to junctional points, and the regulation of the railroad requiring re-checking at Hodges was not so obviously in violation of the statute, or so capricious and unreasonable, as to furnish ground for holding the refusal to check through to Greenwood to be a wilful or wanton violation of plaintiff's right. The defendant with perfect honesty of purpose might have supposed it was acting within its rights in making and enforcing the rule, and there was no proof whatever that it did not entertain this belief. The same remarks apply to the refusal of the railroad agent to receive the baggage and thus become again responsible for it after it had been taken off the train and the check and excess charged received back from the *Page 394 plaintiff, he refusing to give any direction as to its disposition. It seems to me the case falls within the rule laid down in Gwynn v. Tel. Co., 69 S.C. 434, 444, 48 S.E., 460, taken from 2d Sutherland on Damages, 1093; "A tort committed by mistake in the assertion of a supposed right, or without actual wrong intention, and without such recklessness or negligence as evinces malice or conscious disregard of the rights of others will not warrant the giving of damages for punishment, where the doctrine of such damage prevails."
Nor am I able to see any basis for punitive damages in the dispute between the passenger and the agent as to the right to have the baggage checked through to Greenwood; each was merely asserting what he supposed to be his right. The verdict of five hundred dollars, all of which except forty-five cents represented punitive damages, seems to me, under the facts of this case, to be unjust, and I think a new trialnisi should have been granted.