10 Wis. 388 | Wis. | 1860
By the Court,
The order of the circuit court allowing the defendant in error, plaintiff below, to amend his complaint cannot be assigned for error in this court. Such amendment was a matter of discretion and will not be reviewed except in cases where it has been clearly abused.
The ruling allowing the plaintiff below to give in evidence the declarations of the defendants’ ticket agent, made after the transaction of selling the ticket was closed, was clearly erroneous. This is abundantly established by the authorities cited by the counsel for the plaintiff in error. The rule as to the admissibility of the declarations of agents against their principals, is concisely stated by Judge Story as follows: "Where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject matter, will also bind him, if made at the time and constituting a part of the res gestee’’ The rule is the same whether the principal be a corporation, or a natural person. Angelí & Ames on Corporations, § 309; and authorities there cited.
Under the proofs made we are also of opinion that the court improperly refused to instruct the jury as requested by the defendant’s counsel, that the plaintiff was only entitled to recover such sum as would compensate him for his actual loss by being put off the cars, and that he was not entitled to vindictive damages or smart money. If it be admitted that the action of the conductor in expelling the plaintiff from the
Another and more intricate and interesting question, not directly involved in the case, was raised and much discussed on the argument. It was, whether, under any circumstances, the principal can be held liable where the injury complained of is the consequence of the wilful or malicious act of the agent. As the question may become important in the future trial of this case, we deem it proper briefly to notice it. It was insisted by the counsel for the plaintiffs in error, that in no case could a right of action arise against the principal, for the wilful or malicious misconduct of the agent, unless it was previously authorized or subsequently ratified by him. On a careful examination of this position we are satisfied that it is incorrect. The case of Weed vs. Panama Railroad Comp., 17 N. Y., 362, will be found to be a clear and well reasoned case upon the subject. It was there held that it was no defense to an action against a railroad corporation, for its failure to transport a passenger with proper dispatch, that the delay was the wilful act of the conductor in charge of the train. The rule established by that case, as we think with much reason is, that where the misconduct of the agent causes a breach of the obligation or contract of the principal, then the principal will be liable in an action, whether such misconduct be wilful or malicious, or merely negligent. The action though undeniably in tort is treated virtually as an action ex contractu and governed by the same rule as to damages, unless the malice or wantonness of the agent is brought home and directly charged to the principal. In this case the contract between the plaintiff and defendants was, that in consideration of his having paid to them the fee demanded, they were carefully to transport him in their cars from Madison to Edgerton. It is
The judgment of the circuit court must be reversed, and a new trial awarded.