Maisenbacker v. Society Concordia

71 Conn. 369 | Conn. | 1899

Halx, J.

The complaint alleges in substance that the plaintiff, having contracted with and paid the defendant for the privilege of dancing at a certain ball, was, by the forcible acts of the defendant’s agents, prevented from exercising her said right, and was thereby caused pain and damage.

The trial court correctly charged the jury that the complaint described two causes of action: one for personal injury, and the other for a breach of contract. Under the averments of the complaint the plaintiff would have been entitled to a verdict upon proof either that she was forcibly prevented from dancing, as alleged, or that the defendant’s agents, without using force, unlawfully deprived her of the privilege which was granted to her by her contract with the defendant.

We have no occasion to decide whether these two. causes ■ of action should have been stated in separate counts. Several causes of action may be stated in a single count, when such causes of action are not separate and distinct from each other; that is, separable from each other “by some distinct line of demarcation.” Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 563. The defendant, not having demurred to the complaint, has waived the question whether the two causes of action were improperly joined in one count. Practice Book, p. 17, Rule IV. § 13.

Apparently no question was made at the trial but that under the pleadings the plaintiff, upon proof that the defendant’s agent forcibly prevented her from dancing, became entitled to a verdict for a sum sufficient to indemnify her for the actual injuries she sustained, and which.were the direct and natural consequences of the wrongful act complained of. The complaint alleges that in consequence of the assault the plaintiff was deprived of the privileges of the ball, that she suffered physical and mental pain and anguish, and lost her earnings in the trade at which she had been employed. The court instructed the jury that in determining the amount of compensatory damages to be awarded the plaintiff, they might take into consideration the indignity she had suffered by an assault in so public a place, the mental as well as her physical suffering which it caused her, and such loss as had been proved she had thereby sustained from inability to work at her trade.

“All the attending acts and circumstances which accompany and give character to the assault may be given in evidence to enhance the damages.” Brzezinski v. Tierney, 60 Conn. 55, 62. Mental as well as physical suffering, when properly alleged, may be proved as an element of actual damage, and as naturally and directly resulting from an assault of the character described in the complaint. Gibney v. Lewis, 68 Conn. 392, 396; Seger v. Barkhamsted, 22 id. *290, *298; Masters v. Warren, 27 id. *293, 299. The defendant has no cause to complain of the charge of the court with reference to the elements which go to make up compensatory damages.

The complaint alleges that the defendant’s agent in committing the assault, “ addressed the plaintiff in loud, threatening and insulting language,” and that the assault upon the plaintiff was' “ committed in a gross, wanton and reckless manner and with intent to ” injure the plaintiff.

The defendant, in effect, requested the court to charge the jury that the defendant society could not, upon the proof presented, be held liable in exemplary damages. The court did not comply with this request, but instructed the jury that in case they found that a battery had been inflicted upon the plaintiff by the defendant’s agent, “wantonly, maliciously, or in wanton disregard of the plaintiff’s rights,” they might add to that sum which they should find sufficient to compensate the plaintiff for her injuries, “ a sum as exemplary or punitive damages,” and might award her as punitive damages such sum as the jury, from their “knowledge of the course of business in the courts of law in this State,” should find “ to be her expenses in conducting this trial,” less the taxable costs which she would recover.

The jury returned a verdict for the plaintiff for $300. We have not the evidence in the case before us; but from the finding of facts and from the charge of the court, stating the claims of the parties as to the character and extent of the plaintiff’s injuries, we think the jury may, under such instruction have included in their verdict, as an element of damages, the expenses incurred by the plaintiff in conducting her trial, less the taxable costs; and unless this is a case in which such expenses could lawfully be recovered, the charge of the court was incorrect and a new trial should be granted.

That a plaintiff may, in an action for an assault and battery and in certain other actions of tort, recover certain damages which are not compensatory within the technical and legal meaning of that word, but which are awarded with the view of punishing the defendant for his wrongful act, has been settled in this State, beyond question, by a large number of decisions extending from Linsley v. Bushnell, 15 Conn. *225, to Gibney v. Lewis, 68 id. 392.

The cases in which punitive damages may be awarded are only those actions of tort “ founded on the malicious or wanton misconduct of the defendant,” or upon “ such culpable neglect of the defendant ” as is “ tantamount to malicious or wanton misconduct.” St. Peter's Church v. Beach, 26 Conn. *355; Welch v. Durand, 36 id. 182; Burr v. Plymouth, 48 id. 460. And private corporations, as well as individuals, may for their own acts become liable in punitive damages. Sedgwick on Damages (8th ed.), §379; Merrils v. Tariff Mfg. Co., 10 Conn. 384; Murphy v. New York & N. H. R. Co., 29 id, 496.

The expenses of litigation are not an element of the damages termed in law actual or compensatory damages; “ they are not the natural and proximate consequence of the wrongful act,” and they can only be considered by the jury in those cases in which exemplary damages may be awarded. St. Peter's Church v. Beach, supra; Platt v. Brown, 30 Conn. 336; Mason v. Hawes, 52 id. 12; Gibney v. Lewis, supra. Such expenses in excess of taxable costs, in cases in which they may be considered, limit the amount of punitive damages which can be awarded. Wilson v. Granby, 47 Conn. 59; Burr v. Plymouth, supra. In cases where they may be considered it is not usual to prove the expenses of litigation actually incurred, but the court may admit relevant evidence for that purpose. Bennett v. Gibbons, 55 Conn. 450.

The case before us, as shown by the record, is not one in which the defendant society could be held liable in punitive damages. The defendant is a corporation. The alleged assault was committed by a floor manager “ appointed by tbe defendant to have the regulation and charge of tbe dancing ” at a ball given by tbe defendant. Tbe assault which tbe court instructed tbe jury would, if found to have been committed and to have been inflicted wantonly and maliciously, entitle tbe plaintiff to exemplary damages, was the putting of bis hand by one of tbe floor managers upon tbe plaintiff’s shoulder “rudely,-insolently or angrily,” and while she was upon the ball room floor, “ at tbe same time telling her that she could not dance there, and that she was not a fit person to be there.” If these facts are sufficient to show that the act of tbe agent was malicious or wanton, they do not prove that tbe principal in any way participated in such malicious or wanton misconduct. As its agent was acting within tbe scope of bis employment, tbe law compels tbe defendant to compensate the plaintiff for tbe injuries she has sustained from tbe wrongful acts of the agent, but it does not punish tbe defendant for tbe malicious purpose or intent which prompted tbe agent’s conduct.

To render tbe principal liable in exemplary damages for tbe acts of bis agent in the course of bis employment, but done with such malicious intent, some misconduct of tbe former beyond that which tbe law implies from tbe mere relation of principal and agent, must be shown. It is not claimed that tbe defendant society directed tbe floor manager to remove tbe plaintiff, or to act toward any person in tbe manner in which it is alleged be did, or that tbe defendant has since adopted or approved of bis action.

In Cleghorn v. New York C. & H. R. R. Co., 56 N. Y. 44, 47, Chief Justice Church, in delivering tbe opinion of tbe court, says: “ For injuries by tbe negligence of a servant while engaged in tbe business of the master, within tbe scope of his employment, tbe latter is bable for compensatory damages ; but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless be is also chargeable with gross misconduct.”

In tbe case of Lake Shore, etc., Ry. Co. v. Prentice, 147 U. S. 101, 107, in which this question is very fully discussed and the decisions in both the Federal and State courts upon' this subject reviewed, Ms. Justice G-bay, speaking for the court, laid down the rule as deducible from the authorities, that “ guilty intention upon the part of the defendant is required in order to charge him with exemplary or punitive damages.". . . Exemplary or punitive damages, being awarded, not by way of compensation -to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be- held liable for exemplary or punitive damages, merely by reason of wanton, oppressive or malicious intent upon the part of the agent.”

In Sedgwick on Damages, Yol. 1 (8th ed.), §§ 878 and 380, the author, after citing very fully the conflicting authorities in different jurisdictions upon this question, says: “ It is the better opinion that no recovery of exemplary damages can be had against a principal for the tort of an agent or servant, unless the defendant expressly authorized the act as it was performed, or approved it, or was grossly negligent in hiring the agent or servant.”

In the case at bar, as it appears by the record before us, we think compensation for the injury suffered was the full measure of the defendant’s responsibility, and that there was error in charging the jury that they might award the plaintiff as punitive damages the expenses of trial in excess of taxable costs, and in not charging upon the subject of punitive damages as requested by defendant.

Error and new trial granted.

In this opinion the other judges concurred.