Pine Bluff & Arkansas River Railway Co. v. Washington
172 S.W. 872
Ark.
1915
Check Treatment
Hart, J.,

(after stating the facts). (Í) It is'earnestly insisted by counsel for the defendant railway company that a carrier is not liable for exemplary or punitive damages for a wanton and malicious assault upon a passenger by a servant acting within the scope of his authority which it has in no way antecedently- authorized or subsequently ratified. There is a division of authorities on this question and counsel have cited a number of authorities to sustain their position, but we do not deem it necessary to discuss or review them for the reason that we have already decided adversely to their contention. This court has adopted what is usually called the rule of general liability, which has been defined as follows: “A corporation may be held liable to exemplary or punitive damages for such acts done by its agents or servants acting within the scope of their employment as would if done by an individual acting for himself, render him liable for such damages. See case note to 48 L. R. A. (N. S.) page 38.

In the case of Little Rock Railway & Electric Co. v. Dobbins, 78 Ark. 553, the court held: “A corporation, as distinguished from an individual, is liable in punitive damages for the malicious acts of its agents, done within the scope of their employment, although such acts were not ratified by it.”

In that case the allegations and proof on the part of the plaintiff were that a street car conductor maliciously and without provocation subjected one of defendant’s passengers to humiliating insults and wrongfully caused him to be arrested and removed from the car in which he was riding.

In the case of St. Louis, I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289, this court held: “A railroad company is liable for an assault upon a passenger committed by a brakeman having duties to perform with reference to the comfort and safety, of passengers, even though in making such assault, the brakeman departed from his line of duty. ’ ’

In that case, according to the testimony of the plaintiff, the brakeman on the train came into the car and cursed him and beat him over the head with a lantern. No provocation was given for the assault.

In the case of St. Louis, I. M. & S. Ry. Co. v Robertson, 103 Ark. 361, one Clint Euff boarded a freight train which did not carry passengers and the conductor, in attempting to eject him from the train, shoved him from the train into a lake where he was drowned. The testimony on the part of appellee in that case tended to show that the conductor had a gun and that he acted in a malicious and wanton manner in ejecting Ruff from the train. A recovery for punitive damages in the sum of $2,000 was sustained.

(2) It may, therefore, be taken as settled law in this State that punitive damages may be awarded against a railway corporation for the wanton and malicious torts of its servants, although the corporation, aside from the conduct of its servants, may be entirely blameless. The reason for adopting the rule was given in the cases above cited and the authorities on both sides of the question were there thoroughly discussed. Therefore no useful-purpose could be served by again discussing the reasons for the rule.

Counsel for the defendant assigns as error the action of the court in giving the following’ instruction: £ 1 Compensatory damages are such sums as may be awarded as compensation for such physical pain and mental anguish as plaintiff may have sustained by reason -of the injury, and for loss of time or diminished earning capacity; and, where the injury appears to be of a permanent, continuing character, for such pain and suffering as may be endured by reason thereof in the future.”

The error complained of in this instruction is that the court submitted to the jury the question of the permanent injury of the plaintiff when there was no testimony that her injuries were permanent.

In the same connection, however, the court gave the following instruction: “If you further find from a preponderance of the -evidence that she suffered physical pain and anguish (by reason of is-uch injury, and that she was deprived o'f the ability to work and earn money for a period of time, you should award her such sums as the evidence shows would be a fair and reasonable compensation for such physical and mental pain and diminished earning capacity.”

(3) According to the record the appellee was shot by the brakeman on the 22d day of December, 1913. Her arm was broken by the shot and she was confined to her bed helpless for three weeks and was confined to her room for about two and one-half months -after the shooting. The case was tried on the 27th -day of April, 1914, and at that time the plaintiff was not able to use her arm to any extent .and still suffered pain from it. According to her testimony she .could not raise her arm naturally and any motion of the arm hurt her. Under these circumstances the court wtas warranted in. submitting to the jury the question as to how much she would be entitled to recover by reason of pain and suffering endured and to be endured in the future. It will be noted that in the part of the instruction complained of the court used the language, “of a permanent, continuing character.” We do not think, when the instruction is construed as a whole, that it meant to tell the jury that it might find for the plaintiff for a permanent injury but only for such time as in the judgment of the jury, from the evidence, the plaintiff would suffer pain in the future. This is shown by the other instruction on the same subject which we have set out above.

If counsel for the defendant thought the instruction susceptible of the construction now placed upon it they should have made a specific objection to the instruction and doubtless the court would have changed the language so as to conform to that view. Not having made a specific objection, counsel for defendant are not now in an attitude to complain of the action of the court in giving the instruction.

(4) Counsel for the defendant also insists that the court erred in refusing to permit them to show when the brakeman was discharged by the railway company after >the shooting. There was no error in this. The retention iof a servant in one’s employment after knowledge that his tortious conduct on the occasion in controversy was ¡wilful .and malicious would tend to prove ratification. ¡But, as we have already seen, in this State, it is not necessary to prove that the railway company authorized the .malicious act of the servant or ratified it, and on that ■account the testimony is immaterial.

(5) It is also insisted by counsel for the defendant that $3,000 for compensatory damages was excessive. We do not agree with them in that contention. The plaintiff was suddenly and unexpectedly shot by the brakeman of the defendant on the 22d day of December, 1913, her arm was broken and she has suffered great pain therefrom. 'She was entirely helpless so that she could not move for three weeks, and was confined to her home two months and a half. At the time of the trial on the 27th of April, 1914, she was still suffering and said she had suffered from the time she was shot. She was unable to do any work, and could not raise her arm naturally at the time of the trial, and said that she could not oven sweep with her injured arm. Prior to the time, she was shot she had been earning -ten to fifteen dollars a week sewing and dressing hair, but has been unable to follow her avocation since the shooting. Under these circumstances we can not say that the verdict for compensatory damages was excessive.

(6-7) The jury also returnfed a verdict for $2,000 punitive damages, and under all the circumstances detailed, we do not think the amount was excessive. The same amount was allowed in the case of St. Louis, I. M. & S. Ry. Co. v. Robertson, supra. In that case the plaintiff was endeavoring to ride upon a freight train which did not carry passengers, and it was the duty of the conductor to eject him, but he did so in a wanton and malicious manner which resulted in the death of the person ejected. It is now contended by counsel for the defendant that in that case the conductor was acting directly in the line of his authority, and for that reason the amount recovered was held not excessive. We do not see any difference in principle in the two cases. Here it was the duty of the brakeman to look after the comfort and safety of the passengers and instead of doing this he wantonly and maliciously drew his pistol and shot the plaintiff. It is true that illicit relations had existed between the plaintiff and the brakeman, but this did not constitute any defense for shooting her. She had the right to the same protection at the hands of the railway company as any other passenger in the coach and the company, under the rule we have announced, is liable for the malicious act of its servant in shooting her.

It follows that the judgment will be affirmed.