Mobile & Ohio Railroad v. Seales

100 Ala. 368 | Ala. | 1893

McCLELLAN, J.

Railway corporations have time and time again been held responsible by this court for injuries to passengers, employes and strangers, resulting from or inflicted through the wantonness or wilfulness of servants not above the grade of brakemen and flagmen. In many instances recoveries on account of the wilfulness or wantonness of such employes have been hád at the suit of persons who were themselves guilty of causal contributory negligence, and the judgments have been sustained here. In not a few instances, all this is true in respect of injuries thus caused to and suffered by pure trespassers. Not only so, but in both Classes of cases recoveries have frequently been allowed in nisi prius courts and sustained here where punitive and ex- ' emplary as well as actual and compensatory damages have 'been awarded on account of the wantonness, wilfulness and the like- of this class of employes; and in at least one case the question was distinctly made in the form it is now presented and expressly decided.—Ala. Gt. So. R. R. Co. v. Frazier, 93 Ala. 45. The right of trespassers andcontributorily negligent persons to recover for the wanton, wilful or intentional wrongs of brakemen, flagmen and other employes of similar grade—committed, of course, within the scope of their employment and in the accomplishment of objects within the line of their duties—and to have the jury embrace in the verdict both compensatory and punitive damages, if they see fit to do so, is no longer open to question in this State. We are not disposed to reopen it; and if it were a new question with us, we should be much more inclined to the conclusion at which this court has arrived than the view taken by some courts of marked ability, namely, that while corporations cannot be mulct in punitive damages for the*, wilfulness of such inferior employes as trainmen, they are responsible in such damages for the wilful misconduct of such general executive officers as their presidents, general managers, &e. We do not conceive that there is any sound reason for the distinction. The president of a railway corporation is no more or less its agent than a brakeman on one of its trains. His agency is broader but it is not boundless, and a matter which lies beyond its limits is as thoroughly beyond his powers as any matter beyond the very'much smaller circle of a brakeman’s duties; and, e converso, a brakeman is as fully authorized to act for the company within the range of his employment as the president is within the limits of his office. It can no more be said that the corporation has impliedly authorized or sanctioned the wilful wrong of its president in the accomplishment of some end within his authority than that a similar wrong by a brakeman to an authorized end is the wrong of the corporate entity. There is just the same and no more reason in our opinion, for inflicting punishment on the corporation for the wilful misconduct of the one as of the other, and such punishment is no more vicarious in the one case than in the other. That punishment may be imposed on corporations for the wilful or wanton misconduct, within the general scope of their duties, of their chief executive officers, is well established and not questioned in this case. We feel that-we stand upon the same principles and are moved by the same considerations to the same conclusion in respect of the wilfulness, wantonness and the like of brakeman and flagmen while acting within the scope of their employment and to the accomplishment of the legitimate ends' thereof. On the facts of this case, the trial court properly submitted it to the jury to determine whether, and, if any, what, exemplary damages should be assessed against the defendant.

The court erred, we think, in refusing to allow the defendant to introduce and examine Boltz as a witness. It was clearly defendant’s duty to have answered the interrogatories propounded to it by the plaintiff by this man Boltz, as he was its officer, agent or servant who knew the facts inquired about under Section 2816 of the Code as amended by the Act of 1889—Acts 1888-9, p. 121. Having failed in this duty and answered by another agent or servant who was not cognizant of the facts, the trial court wa.s authorized to either attach the defendant and cause its answer by the proper servant to be made in open court, to continue the cause until the answers were made as required by the statute or to direct a judgment by default against the defendant. Code § 2820. But there is no authorization in the statute for the exclusion of the officer, agent or servant by whom the answers should have been made when offered as a witness by the recalcitrant party; and, the whole proceeding being statutory, we must look alone to the terms of the statute for justification of any action taken under it. It is said, however, that the defendant was not prejudiced by the action under consideration and that reversal should not, therefore, be had upon it, since the court might have directed a judgment by default, &o., &c. The question here is not what the court might have done but what it did. It was discretionary with the trial judge to enter a judgment by default, and we can not know that such judgment would have been entered but for the court’s assumption and attempted exercise of the supposed right to exclude this witness. We can not know, to put it differently, that, but for this action an equally Qr more injurious thing would have happened to the defendant. Indeed it can not be said even that a judgment by default would have been as prejudicial to the defendant as the exclusion of this witness, because upon the rendition of such judgment it would have been defendant’s right to go to the jury on the merit of inquiry, and it may well be the testimony of this witness, bearing upon the assessment of damages, would have been of greater benefit to the company than the omission of the court to direct a judgment by default. The action was erroneous and .injurious and must operate a reversal of the judgment.

Considered abstractly, plaintiff’s fourth and sixth replications to defendant’s second plea were bad in that they did not aver that the person who fired the pistol was a brakeman, &c., and acting within the scope of his employment, &c., &c. Whether the rulings of, the court on defendant’s demurrers to these replications involve injury to the defendant we need not decide.

Beversed and remanded.