44 Iowa 314 | Iowa | 1876
Lead Opinion
A rehearing having been granted and the questions involved having been again argued with great ability and research, it becomes our duty to re-examine and determine the questions presented.
II. The next question arises upon the giving and refusing to give instructions. The evidence is too voluminous to give, even in a summary; and it will be sufficient to state that there was testimony to justify the giving of the instructions asked, if they correctly stated the law. The leading facts are that the plaintiff is a citizen of Iowa, and in March, 1872, purchased of defendant a ticket in Chicago, from there to Beloit;' that a change of cars became necessary at Howard Junction; the plaintiff undertook to enter the rear car of the defendant’s train upon which he was to continue his journey, and a brakeman of the defendant was at the door, charged with that duty, and refused admission to plaintiff on the ground that the rear car was for ladies, and for gentlemen accompanied with ladies, and directed him to the next car forward. The plaintiff insisted upon entering the rear car, and a rencounter there occurred between the plaintiff and the brakeman. The testimony respecting the contest between them and the extent of the injury the-plaintiff received is very conflicting, and wholly irreconcilable.
The defendant asked, among others, the first instruction following, which was refused; and the court gave, on its own motion, the next instruction following, to each of which the defendant duly excepted, and now assigns such refusal and giving ag error.
• “ 4. Much has been said in the argument to the court as to the liability of the company for the alleged wrongful and criminal assault and battery by the brakeman. Tou are instructed that if the plaintiff attempted to re-enter the car and was without fault on his part, as hereinafter explained, and the brakeman, with the intent and purpose to prevent him from re-entering the car for the reason that it was not intended for gentlemen unaccompanied by ladies, violently assaulted and injured the plaintiff, and'was guilty of a criminal act in so doing, the defendant is liable for such .injury, and the fact, if so it is, that the brakeman used such force and violence as to render himself criminally liable, does not exonerate the defendant. In other words, if the brakeman, in executing what he supposed to be his orders, used force and violence when his orders did not contemplate such’means, the company is liable for such injuries as his violence occasions.”
The District Court, by refusing the first of the above instructions, denied that a railroad company could not be liable for the acts of an employe when done willfully so as to constitute a crime; and by giving the last, affirmed that it would be liable for even the willful criminal acts of its employes, when done in the course of their employment. It was held by this court, in De Camp v. The M. & M. R. Co., 12 Iowa, 348, and also in Cook v. The Ill. Cent. R. Co., 30 Iowa, 202, each of which'cases was brought to recover damages for running over stock on the track of the defendant’s railroad, that “ a railroad company is not responsible for the criminal or willful acts of its agents or servants.” The first case does not state the facts upon which the'doctrine was announced; while in the second, it was expressly found by the jury that the act of the engineer in charge of the engine which struck the colt, was intentional and willful. -
In the absence of such showing, and where the willfulness of the act affirmatively appears, the doctrine announced is probably correct, and we do not desire to be understood, as
If we were left to determine the question upon principle, whether an employer should be held liable for the willful or criminal acts of the employe done in the course of his employment, we should have very little or no hesitation in affirming such liability; and this because the employer has placed the employe in a position to do wrong, and it being done in the course of his employment, the intent with which it was done should not affect the liability of the employer whether the intent of the employe is good or ill. So long as he acts within the scope of his employment the employer should be bound. The decided weight and number- of the authorities are in accord with this view. We need only refer to some of them, without stopping to discuss or review them. See Turner v. North Branch R. R. Co., 4 Cal., 494; Great Western R. R. Co. v. Miller, 19 Mich., 305; Finney v. C. R. & R. Co., 10 Wis., 395; Brooks v. Penn. Cent. R. R., 57 Penn. St., 339; St. Louis & Alton R. R. Co. v. Dalby, 19 Ill., 353; Little Miami R. R. v. Wetmore, 19 Ohio, 110; Isaacs v. Third Avenue R. R., 47 N. Y., 122; Goddard v. Grand Trunk R. R., 57 Maine, 212; Rich v. Bryant, 106 Mass., 180; Cracker v. C. & N. W. R. R., 36 Wis., 657.
III. There were other instructions asked and refused, and errors are assigned thereon; but in our view, the instructions given fairly covered the grounds of those refused, and we do not deem it necessary to set them out in full, or to review the criticism of counsel upon them.
. IY. Upon the question of damages the court gave the following instruction:
No exception was taken to so much of the foregoing instruction as announces the doctrine that exemplary damages cannot be recovered in actions of this character, and therefore that question is not before us. The specific objection urged is, that the use of the words “and for the outrage and indignity put upon him,” constitutes error. The instruction recognizes the rule that there may be a recovery for “ bodily pain and suffering,” but it does not recognize that there may be a recov
That “ mental anguish” caused solely by the injury inflicted is an element of compensatory damages is not vigorously contested by counsel, and such doctrine is clearly recognized in Muldowney v. Ill. Central R. R. Co., 36 Iowa, 462. That case does not recognize any difference between mental anguish caused by the injury, and such as may arise from the manner in which the assault was committed, or the outrage and indignity caused. But as the case before the court did not call for the expression of an opinion on the latter proposition, it is fair to presume it was only intended to refer to and cover the former.
We are unable to see that Hendrickson v. Kingsbury, 21 Iowa, 379, has any bearing whatevér on the question presented in the present case. The foregoing are the only cases determined by this court, which have been cited by counsel as bearing on the question before us.
If the instruction only, means by the terms “ outrage and indignity,” mental anguish caused by the injury, then it would not be erroneous under the rule laid down in the Muldowney case, and in Canning v. Inhabitants of Williamstown, 1 Cush., 451; Penn. & Ohio Canal Co. v. Graham, 63 Penn. St., 290.
“Outrage and 'indignity” as used in the instruction must mean and include mental anguish, or pain as distinguished from bodily suffering; and as a recovery is not confined to such mental pain as arises from, or is caused by the injury inflicted, the question is fairly presented whether mental anguish arising from the nature and character of the assault, constitutes an element of compensatory damages. The appellant insists, that such mental pain is not an element of compensatory damages, but concedes it may be considered in a case proper for the assessment of exemplary damages.
As we have seen, mental anguish arising from the injury, that is, pain caused by the wound or broken arm, constitutes an element of compensatory damages, and we, on principle, are unable to see why mental pain arising from or caused by the
The one is as easily estimated and determined as the other, and practically the two cannot be separated or distinguished. The party injured cannot tell when one ends, and the other begins. The value or damage arising from either or both, cannot be accurately computed, and from the nature of things they are so blended together they cannot be separated or distinguished. The attempt, therefore, to draw a line or make a distinction between the two, and assign one to the class of exemplary and the other compensatory is futile. The distinction is too fine to serve any practical purpose,. in the, determination of causes by courts and juries.
A careful examination of the authorities will disclose the fact that the weight of adjudicated cases is in favor of the proposition, that mental anguish arising from the nature and character of the assault is an element of compensatory damages. It was so held in Smith v. R. R. Co., 23 Ohio St., 10, and Flagg v. R. R. Co., 43 Ill., 365, both being cases of expulsion from cars, and in Smith v. Holcomb, 99 Mass., 552, an action for assault and battery, it was held that “insult and indignity inflicted upon the plaintiff, by reason of the blows given by defendant,” should be taken into consideration in assessing the damages, nothing being said as to exemplary damages. In Meagher v. Driscoll, 99 Mass., 281, it was held in an action for trespass on real estate, and removing the body of the plaintiff’s deceased child therefrom, that injury to the feelings of the plaintiff might be considered in assessing the damages. There can be no pretense there was either fraud, malice, negligence, wantonness or intended wrong in the case.
In an action to recover damages for injuries suffered by reason of a defective bridge, the jury were directed in assessing damages to take into consideration the peril, danger and suspense to which the plaintiff was exposed, and the Supreme Court approved the charge and added, that actual injury is not confined to the wounds and bruises upon the body, but extends to mental suffering. The mind is no less a part of
The late case of Cracker v. C. & N. W. R. R. Co., 36 Wis., 657, is directly in point. In that case the conductor by the use of some force kissed the plaintiff, a. female passenger. The defendant discharged the conductor and did what it could to show his conduct was .disapproved. The jury assessed the damages at one thousand dollars; and the verdict was sustained on the ground that it was right and proper to take into consideration the insult to the plaintiff’s wounded and outraged feelings, and it was expressly held that exemplary damages were not recoverable in such action.
No adjudicated case has been cited by counsel for the appellant in which the distinction claimed to exist and which we have been discussing has been recognized or expressly adopted, except Johnson v. Wells, Fargo & Co., 6 Nevada, 224, and believing the decided weight of authority is opposed to the view taken in that case, we are unwilling to .follow it and by so doing ignore the other authorities cited. '
It is difficult to estimate the amount of the recovery for pain and suffering, either of body or mind, and we have rarely interfered with verdicts of this character. Each case, however, must be governed and controlled by the particular facts and circumstances. No general rule applicable to all cases can be adopted, unless it be that whatever the verdict may be it must stand and cannot be in any manner disturbed, however much it may strike the mind as having been given under the influence of “passion or prejudice;” and certainly no such rule as this will for a’ moment be insisted on. An examina
If the plaintiff, within thirty days from the filing of this opinion, sees proper to accept a judgment for seven thousand dollars, there will be an affirmance and judgment entered here, otherwise there must be a reversal.
Justice Beck does not concur in the conclusion reached as to the reduction of the verdict on the ground that he does not think the verdict indicates either passion or prejudice.
Dissenting Opinion
dissenting. — I do not concur' in so much of the foregoing' opinion as holds that outrage and indignity, resulting in mental suffering, constitute an element of compensatory damages. In my opinion, mental suffering arising from such cause should be considered only when the circumstances are such as to warrant exemplary damages. I have neither time nor inclination to set forth my views upon this queston; nor, as my brothers all entertain a different view, would any practical purpose be snbserved by doing so. There is a conflict of authority upon the subject. None of the cases cited in the foregoing opinion discuss the question elaborately, or sustain the view maintained, with any great cogency of reasoning. Most of them merely announce it ex cathedra, I think the better doctrine is that maintained by the Supreme Court of Nevada in Johnson v. Wells, Fargo & Co., 6 Nevada, 224, and followed by a majority of this court upon the former hearing.
SUPPLEMENTAL opinion.
Per Curiam.
The Code provides as follows: If a petition for rehearing be filed, the same shall suspend the decision if the court on its presentation, or one or more of the judges if in vacation shall so order, in either of whicli case such decision shall be suspended until the next term. Sec. 3201.
Such order as contemplated in the preceding section was made. The rules of this court provide, that petitions for a rehearing must be filed within sixty days after the decision is made.
At the time the procedendo was issued, and the petition and bond for the transfer to the Circuit Court of the United States was filed in the court below, and also, at the time the transcript was filed in said Circuit Court no petition for a rehearing had been filed, but such petition was filed and was pending at the time the motion to dismiss was made, and the question now is whether the proceedings aforesaid have deprived this court of power to proceed farther in the case. As we understand the act of Congress, no cause can be transferred to the Circuit Court of the United States, while the cause is pending in the courts of last resort in the several States. Inasmuch as the petition for a rehearing was - filed sixty days from the decision, we hold that the cause was still pending here, and the motion must be
Overruled.