cases exemplified by Central of Georgia Ry. Co. v. Price,
106 Ga. 176, 32 S.E. 77 (1898). See generally W. Prosser, Law of
Torts § 44 (4th ed. 1971).
Once the established facts preclude recovery for Farmilant's
medical bills, the only compensatory damages arguably involved
are (1) the extra living costs incurred by Farmilant from
December 13 to 16 in Hong Kong, (2) any extra cost incurred
by his need to travel by rail from Bombay to Madras (including
the price of his adulterated food?) and (3) any extra cost
incurred by his need to use another carrier for his flight from
Madras home. Even in an era of worldwide inflation, those costs
of course amount to far less than $10,000.*fn3
Farmilant also asks for punitive damages, and maybe he thinks
that prayer gets him over the jurisdictional hurdle. Not so: by
a basic common-law principle, punitive or "exemplary" damages
are recoverable only when the conduct complained of is
accompanied by aggravating circumstances like willfulness,
malice or fraud — mere negligence is not enough. See 15
I.L.P. Damages § 132.*fn4
True, Farmilant alleges Airline's fraudulent misrepresentation
(Count I), "tortious" breach of contract (Count II), negligence
(Count III) and willful and wanton conduct (Count IV). But the
established facts preclude Farmilant's showing the requisite
fraud, malice or similar aggravating factor on Airline's part.
Were this a threshold motion to dismiss the Complaint for want
of subject matter jurisdiction, Farmilant would be entitled to
the speculative benefit of any facts he might conceivably prove
in support of his well-pleaded allegations. On a motion for
summary judgment, though, he is not entitled to hold back his
heavier fire for the ultimate trial — for it may never come.
See Walker v. Hoffman, 583 F.2d 1073, 1075 (9th Cir. 1978)
(quoting Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.
1972)), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59
L.Ed.2d 88 (1979). Accordingly Farmilant may properly be
accorded the benefit of favorable inferences only from
established facts and from his own asserted facts (accepted as
true for these purposes)-no more.
Farmilant claims (Dep. 67) he was assured by Airline's Chicago
agent he would have "no problem" booking passage throughout the
Orient. But Farmilant purchased an "open" ticket without
reservations beyond Tokyo. It is not reasonably inferable the
Chicago agent was maliciously motivated to mislead Farmilant in
November that he would be unable to obtain a seat on a flight
he would choose only at some indefinite time in the future.
That point is underlined by the fact Farmilant wound up in Hong
Kong (and seeking a particular flight to Madras) only after
changing plans twice en route.
Even taking Farmilant's account of Airline's Chicago agent's
representation as true, the inference most favorable to
Farmilant is of negligence: failure to warn Farmilant that
certain permutations in his travel plans might cause him some
delays. There was just too much uncertainty at that point to
infer from the facts any malice or fraud or evil intent on the
It will be recalled Farmilant was only waitlisted on the
connecting December 13 flight from Singapore to Madras.
Nonetheless he claims (id. at 87-89, 104, 108-09) he was
assured or led to believe by Airline's agents in Hong Kong he
was confirmed on that flight. But he also says (id. at 87-88)
the Hong Kong agents were not Airline's own employees, but
those of another carrier.
That fact certainly permits the inference Airline was negligent
in not informing its on-site aides of its codes and its
procedures. However, the same fact precludes the possibility
Airline was acting maliciously or fraudulently through its
agents — that it did so specifically to induce Farmilant to buy
a ticket that, despite its explicit provision, would really not
guarantee him a seat. Airline just did not have that kind of
control of its Hong Kong representatives. Moreover, there is no
hint Airline had any interest in being stuck with Farmilant in
Singapore rather than Hong Kong, and after all Airline did
eventually arrange Farmilant's passage to Bombay.
Finally, however much it might have been in Airline's business
interest to honor Farmilant's emergency request for
transportation back to the United States, no malice or fraud or
wantonness may be inferred from its refusal to "bump" a
reserved passenger from one of its flights to accommodate
Farmilant. Farmilant was simply not entitled to that
preferential right. See February 1, 1983 Affidavit of Janis
Pignataro, Ex. 1 at ¶¶ A & B.
No doubt Farmilant's excursion to India was beset with woe.
Perhaps Airline was negligent toward him. But there just is no
evil inferable in this action. Farmilant must simply be told,
"Don't try to make a federal case out of it." See Ross v.
Inter-Ocean Insurance Co., 693 F.2d 659, 662-63 (7th Cir.
Airline's summary judgment motion is denied. This action is
dismissed for lack of subject matter jurisdiction.