This is a petition to rehear this case, decided at September Term, 1894, of this Court, and published in 115 N. C., 602. The defendant is a corporation under the laws of this State, running and operating its road between the towns of Washington and Jamesville, transporting both freight and passengers as a common carrier for pay. The plaintiff, a citizen of Washington, wanting to go to the town of Edenton and back, on the 7th of September, 1892, purchased a ticket of defendant to Jamesville, and from Jamesville back to Washington on the 9th. The defendant carried plaintiff to Jamesville on the 7th and he went on to Edenton, and was in that town on the 8th of September. (It is not stated in this case that plaintiff went to Edenton and was there on the 8th, but this was stated and agreed to by counsel on the argument.)
On the 8th of September, soon after leaving Jamesville for Washington, the axle of defendant engine broke, and when the plaintiff returned from Edenton to Jamesville on the 9th, the defendant was unable to carry him, on its road, *567from Jamesville back to Washington as it had contracted to do. Thereupon plaintiff brings this action for damages which he lays at $500, and alleges that defendant’s road bed was in a bad, shackling and ruinous condition. That defendant had but two engines, both of which were worn and in bad condition, one of them at that time being in the shops for repair and not in a condition to be used. That the bad condition of defendant’s road bed had rattled the other one so as to cause the axle to break. That all this showed such wilful negligence on the part of defendant towards the public, and towards the plaintiff as to entitle him not only to compensatory damages but to exemplary damages.
The defendant answered denying the allegation of negligence, admits that the road was not in good condition, says it was poor and struggling for existence, and that it was expending the whole earnings of the road, and more, in trying to keep it in good repair and was not able to do so. Therefore, defendant denies that it is liable to plaintiff for anything, and certainly not for punitive damages.
And without reviewing the evidence, it is such as to warrant us in saying that the road bed was in a bad dilapidated and ruinous condition and that defendant had but two engines, and they were old, worn and in bad condition.
That plaintiff is entitled to compensatory damages there can be no doubt. But as to whether he is entitled to exemplary damages is the question.
It is said that railroads.are quasi-public servants. That they are created by the public (the legislature) and owe duties to the public in return for their right of franchise. And while this is true it can only be considered by us as a reason for establishing the law, as we shall find it, and not as a reason for us to establish the law.
Nor can we consider the question as to whether defen*568dant’s road is a poor corporation, struggling for existence, and expending all its earnings, and more, on its road; or whether it is a rich corporation. These are questions we have no right to consider in passing upon the question of law as to whether the plaintiff is entitled to recover damages against defendant or not. Taylor v. Railroad, 48 N. H., 317.
The legal question involved in this case is conceded to be an important one, and is entitled to our best consideration. It is one that has been so much discussed by law-writers and by the courts in judicial opinions, in which different phases or facts appear, that it is somewhat difficult to establish ourselves on what we consider solid ground.
Often a very slight difference in the facts changes the reason upon which a case is decided. We find that decided cases, unless closely attended to, are often misleading. Also often a misunderstanding of some of the facts, or an inadvertence to some fact in the case, leads to error. This we think was the case with the learned Justice who wrote the opinion we are now reviewing. In stating the facts in Purcell’s case, 108 N. C., 414 he stated that, when the defendant’s train passed the depot, it “was overloaded,” when there was evidence tending to show that there was room for a number of other passengers. And this was the hypothesis upon which the court was asked to charge the jury and which was refused by the court. This inadvertence, as we think, led the court to overrule Purcell’s case, supra.
After as full investigation as we have been able to give to this case, we are of the opinion that the true ground for allowing exemplary damages is personal injury to plaintiff caused by the negligence of defendant (and we do not undertake here to enumerate all the causes for exemplary damages, where there is personal injury). And where *569there is no personal, injury, there must be insult, indignity, contempt, or something of the kind, to which the law imputes bad motive towards a plaintiff, and when they are allowed, they are in addition to compensatory damages. I Sedgwick on damages, 520 ; 5 Am. & Eng. Ene., p. 4-3, note and cases cited.
This principle we find is recognized and enforced in the following cases:
A railroad conductor kissed a lady passenger on his train and she was allowed to'recover punitive damages upon the ground that it was a personal indignity. 5 Am. & Eng. Ene., p. 4:3.
Where a railroad conductor refused to carry a passenger after he had paid his fare, the road is liable to exemplary damages. 3 Sutherland on Damages, Sections 935 and 937. This is upon the same ground.
Plaintiff is not entitled to exemplary damages, unless there is a wilful or intentional violation of plaintiff’s personal rights. Milwaukee R. R. Co. v. Hanes, 91 U. S., 489.
Where a railroad carried a lady passenger a few hundred yards beyond the station, and upon application of the passenger refused t'' back the train to the station, but put the passenger out in a driving rain with her infant child and baggage, the defendant was held to be liable to punitive damages. But this was put upon, the ground of personal indignity and insult, as all cases we have cited are, and the fact that the passenger could not use her umbrella, got wet and was sick from the effects, was only allowed in evidence upon the measure of damages. But the gravamen of the action was the personal indignity with’which the plaintiff had been treated by the defendant. Railroad v. Sellers, 93 Ala., 13. We might cite many other cases to sustain *570the principle we have laid down, but do not deem it necessary.
We make no question, under our system of liberal pleading, that plaintiff may recover either in contract or tort if he has made out his case. But he can no more recover in tort without making out his case, than he could recover in contract without making out his case.
The fact that the defendant’s road was in bad condition was no insult or indignity to plaintiff. And, as there was no personal injury on account of its bad condition, this affords him no cause of action. The fact that defendant’s engine broke down on the 8th, when plaintiff was in Edenton, was no personal insult, indignity or intentional wrong to plaintiff. No doubt the defendant regretted the breaking down of the engine as much as plaintiff. The fact that plaintiff had a right of action for breach of the contract, gives him no right of action for tort against the defendant. And, unless he had the right to maintain an action of tort, he had no right to punitive damages. There can be no damage recovered when there is no right of action. Damages are not the cause of action, but the result of the action.
Taking all the evidence in the case offered by the plaintiff, or that may be considered in his favor, we do not think it makes a cause of action against the defendant .in tort, and that the defendant was entitled to have his second prayer for instruction submitted to the jury, to-wit: “Taking the entire evidence in view, the plaintiff is not entitled to punitive damages.” This was refused by the court, and we think there was error.
We have arrived at our conclusion by a different treatment of the case, to some extent, from that adopted by the court in the opinion published in 115 N. C., 602. But our judgment is the same. And in this opinion we do not think it necessary to disturb the judgment as announced *571in Purcell’s case, supra. But the judgment in that case should be put upon the ground that the defendant treated the plaintiff Purcell with indignity and contempt in rushing by the station at faster speed, when there was room for other passengers, or at least when there was evidence tending to show this, and the court refused the prayer for instruction submitting this question to the jury. The petition is dismissed.
Dismissed.