11 Nev. 350 | Nev. | 1876
Lead Opinion
By the Court,
This action was brought by plaintiff Quigley to recover from the defendant, the Central Pacific Eailroad Company, damages for an alleged unlawful ejection from defendant’s cars.
The jury found a verdict in favor of plaintiff and assessed the damages at $5000. Defendant moved for a new trial which was refused. The appeal is taken by defendant from the judgment and from the order of the district court overruling its motion for a new trial.
Prior to the trial of the case the defendant moved the
“[Title of court and cause.]
“State of California, City and County of San Francisco, ss.
“Charles Crocker being duly sworn, deposes and says: that he is the second vice-president of the Central Pacific Eailroad Company, the defendant in the above-entitled ac*354 tion; that Leland Stanford is the president of said company, and Collis P. Huntington is the first vice-president of said company; that said Stanford and Huntington are at the present time in the city of New. York, and therefore unable to make this affidavit; that said Central Pacific Eailroad Company is a corporation duly organized under the laws of the State of California, having its principal place of business at the city and county of San Francisco, in said state, and is the defendant in the above-entitled action; that said action was brought on or about the fourth day of April, 1874, in the above-entitled court, * * * that said plaintiff * * * is and has been since the nineteenth day of August, A. d. 1874, a citizen of the United States residing in the State of Nevada. And this deponent further says: That he has reason to believe, and does believe, that from prejudice and local influence, said defendant corporation will not be able to obtain justice in said court, and affiant therefore makes this affidavit for the purpose of removing said suit into the Circuit court of the United States, for the district of Nevada, * * . in pursuance of the statute in such case made and provided, and further saith not.
“ (Duly verified.)
Charles Crocker.”
The plaintiff objected to the sufficiency of the petition, bond, and affidavit. The objections to the petition and bond were made upon the ground that they were not signed by the defendant, and contained no evidence that E. H. Miller, Jr., was authorized by the defendant to sign the same; and the further ground that the seal thereto affixed was not attested, nor in any manner authenticated as the seal of defendant. The objection to the affidavit, as made in the court below, reads as follows: “Third. That one of the grounds for removal of said cause, as stated in said pretended petition is that one Charles Crocker has reason to believe, and does believe, that from prejudice and local influence, said corporation will not be able to obtain justice in said court. That said affidavit is the mere opinion of said Charles Crocker, and does not show that such is the opinion of the defendant; nor does said affidavit shoiv that said
"We think this case goes too far. It is uoav too well settled to be questioned, that a corporation is a citizen of the state where it is created, and it certainly can be a “ citizen of another state ” within the meaning of the Avords as used in the act of 1867. If it is a citizen of another state, by presenting and filing the necessary papers, it would certainly be entitled to have the suit removed. True, the corporation could not, in person, make the affidavit. But, suppose the board of directors at a regular meeting should pass a resolution declaring that the corporation has reason to, and does believe that, from prejudice and local influence, it Avill not be able to obtain justice in such state court, and authorizes its president, or some other person, to make and file an affidavit of this fact in said court, would this not be suf
It might be urged that inasmuch as no officer of a corporation, unless specially authorized, has power to bind the corporation except in the discharge of his .ordinary duties, and inasmuch as it is no part of the ordinary duties of the superintendent of a railroad to represent the corporation in judicial proceedings, that a distinction ought to be drawn between the case referred to and the one under consideration, where the affidavit is made by the acting president, who is at the head of the corporation, and invested with greater power than any other officer. This question was mooted in the Massachusetts case, and the language we have quoted from the opinion, may be considered as modified to some extent, from the fact that it appeared from the bill of exceptions in that case “that Hildreth, by whom the petition for removal was signed, and the affidavit in support thereof made, had no authority except what was incident to his office as assistant and acting superintendent of the defendants,” and for this, as well as the other reasons given in the opinion, it was held, “ that the petition and affidavit were not the acts of the corporation.” But from the view we take of this question and the gist of the objection made and authorities cited, this distinction as to the ordinary duties of the respective officers of a corporation makes no difference. The objection is, that the individual belief of an officer or agent of a corporation does not answer the positive requirements of the statute. The affidavit must be made by the party to the suit. It is the belief of the “ citizen of another state,” not the belief of such citizen’s agent, that deprives the state court of its jurisdiction. As the affidavit in this case did not conform to the requirements of the act of congress the court did not err in proceeding with the trial of the case.
2. At the trial plaintiff testified, that he applied to the
It is admitted by counsel for appellant that the act of the conductor in ejecting plaintiff from the cars was within the scope of his authority, in the prosecution of the business entrusted to him by defendant, and that if the 'act was unwarranted and unlawful, the defendant was liable in damages therefor, notwithstanding the fact that the conductor acted in good faith, in the honest belief that the plaintiff had no right to a passage upon ticket No. 1496. But it is argued that the corporation is not responsible for the wanton or malicious acts of its servants; that in such cases the corporation cannot be held liable in exemplary or punitive damages, and that the court therefore erred in submitting this question to the jury in the following instructions: “First. The jury are instructed that a corporation is liable to exemplary 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.”
“Second. The jury are instructed that for acts done by the agents of a corporation, either in contractu or delicto, in the course of its business and of their employment, the corporation is responsible as an individual is responsible in similar circumstances.”
“Fifth. If the jury believe, from the evidence, that the plaintiff did purchase, pay for, and receive from defendant, at Elko, a first-class passenger ticket, issued by defendant as a permit to the owner to ride upon its passenger cars from Elko to San Francisco; and that defendant took from plaintiff said ticket whilst plaintiff was on said cars as a passenger, en route to San Francisco, and forcibly ejected*362 plaintiff from its said cars; and that such acts of defendant were done wantonly or maliciously, or with a reckless disregard of the rights of plaintiff, then the plaintiff is entitled to recover exemplary damages.”
While there is some conflict in the decided cases, we are of opinion that the weight of reason and authority is decidedly in favor of the rule that a corporation is liable for the wanton and malicious acts of its agents. If the agent or servant of a corporation assaults a stranger, the corporation, is not in any way liable; but the rule is different where the assault is made upon a passenger of the corporation. It is the duty of every railroad corporation to carry its passengers safely, and to treat them respectfully. They should protect their passengers from violence and insult, and are bound to use such reasonable precautions as human judgment and ordinary foresight are capable of, in order to make the journey safe and comfortable. In the language of the authorities they are bound to protect their passengers not only against the violence and insults of strangers and co-passengers, but a fortiori, against the violence and insults of their own conductors, agents and servants, and if this duty is not performed, they should, of course, be held responsible. In Angelí & Ames on Corporations, the authors say: “A distinction exists as to the liability of a corporation for the willful tort of its servant towards one to whom the corporation owes no duty, except such as each citizen owes to every other, and that towards one who has entered into some peculiar contract with the corporation, by which this duty is increased. Thus it has been held that a railroad corporation is liable for the willful tort of its servants whereby a passenger on the train is injured.” (Sec. 388.)
Mr. Bedfield, in reviewing the decision of the court in Hagan v. Providence and Worcester Railroad Co., 3 Rhode Island, 88, wherein the court had declared that the corporation could not be held liable for the wanton and malicious acts of its agents unless it participated in the wrongful act of its agent or expressly or impliedly authorized, or approved it, said: “But upon principle, it would seem that if the agent was so situated as to represent the company in
In Goddard v. The Grand Trunk Railway of Canada, the court review at length the authorities, and in concluding fipon this point, say: “The laAv requires the common carrier of passengers to exercise the highest degree of care that human judgment and foresight are capable of, to make his passenger’s journey safe. Whoever engages in the business, impliedly promises that his passenger shall have this degree of care. In other Avords, the carrier is conclusively presumed to have promised to do Avhat, under the circumstances, the Iuav requires him to do. * * * If the passenger does not have such care, but on-the contrary is unlawfully assaulted and insulted by one of the verj' persons to whom his conveyance is intrusted, the carrier’s implied promise is broken, and his legal duty is left unperformed,
The following authorities. sustain the proposition that a corporation is liable for the willful, wanton and malicious acts of its agents, while acting in the course of its business and of their employment, although the act was not directly nor impliedly authorized nor ratified by the corporation; and, where the question is considered that the corporation in such cases is liable in exemplary damages. (Moore v. Fitchburg Railroad Corporation, 4 Gray 465; Philadelphia and Reading Railroad Company v. Derby, 14 How. 468; The Pennsylvania Railroad Company v. Vandiver, 42 Penn. Stat. 365; Weed v. The Panama Railroad Company, 17 N. Y. 362; Dalton v. Beers, 38 Conn. 529; Hopkins v. The Atlantic and Saint Lawrence Railroad, 36 N. H. 9; The Baltimore and Ohio Railroad Company v. Blocher, 27 Md. 277; Pittsburg, Fort Wayne and Chicago Railroad Company v. Slusser, 19 Ohio Stat. 157; Atlantic and Great Western Railway Company v. Dunn, 19 Id. 162; The Philadelphia, Wilmington and Baltimore Railroad Company v. Quigley, 21 How. 202; Storey on Agency, sec. 452; Hanson v. European and North American Railway Company, 62 Maine, 84; The New Orleans,
But while this rule is, iu our judgment, correct, we find quite a diversity of opinion as to what is really meant by the term “exemplary damages.” Mr. Sedgwick, after discussing the question of compensatory damages, says: “Thus far we have been speaking of the great class of cases where no question of fraud, malice, gross negligence, or oppression, intervenes. Where either of these elements mingle in the controversy, the law, instead of adhering to the system, or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interest of society and of the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender. This rule * * * seems settled in England, and in the general jurisprudence of this country.” (Sedgwick on Damages, ch. I, mar. p. 38; ch. XVIII, 464, et seq.) In many of the authorities cited in support of this view, it is stated that exemplary or punitive damages can only be given where, in the character of actions like, the one under consideration, the injury to the passenger is the result of the wanton or malicious acts of the agents of the corporation committed in reckless or willful disregard of the rights of the injured party. In the language of these authorities it is only in the extreme cases, where the law blends the interests of the party injured with the interests of the public, that the jury are permitted to give such damages, not only to compensate the injured party, but also to punish the defendant in order that it may serve as a warning and example to others..
Mr. Greenleaf takes an entirely different view of this question. “Damages,” says this author, “are given as a compensation, recompense, or satisfaction, to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more nor less; and this whether it be to his person or estate.” (Vol. II, Greenleaf on Ev., sec. 253, and authorities there cited, and reviewed in a note to this section.)
Foster, J., in delivering the opinion of the court, shows that in many of the decided cases the words exemplary, vindictive, and punitive or punitory (all meaning the same thing), have been used indiscriminately in cases where the injuries inflicted were such as to call for damages of a compensatory character purely, but aggravated by the peculiar circumstances of the parties and the occasion, and he insists that these terms only mean that the jury can consider the aggravation in fully compensating plaintiff for his loss and injury, and not as a punishment for defendant; that these terms mean compensatory damages — nothing more or less, and have reference only to such damages as are thus spoken of by Greenleaf: “It is frequently said, that in actions ex clelioto, evidence is admissible in aggravation or in mitigation, of damages. But this, it is conceived, means nothing more than that evidence is admissible of facts and circumstances which go in aggravation or in mitigation of the injury itself. The circumstances, thus proved, .ought to be those only which belong to the act complained of. The plaintiff is not justly entitled to receive compensation beyond the extent of his injury, nor ought the defendant to pay to the plaintiff more than the plaintiff is entitled to receive.” (2 Greenl. Ev., sec. 266.) Without any further reference to the respective views of these distinguished au
We have, in another part of this opinion, considered the rights of the plaintiff as a passenger upon the cars, and the duties of defendant as a common carrier. It is, undoubtedly, true that if the plaintiff paid for and received ticket No. 1495, and afterwards received ticket No. 1496 without paying any consideration therefor, then, in the language of one of defendant’s instructions as given by the court, ‘ ‘ he had no right to ride thereon; and unless he produced the first-mentioned ticket, or paid his fare to the conductor, the conductor was justified in ejecting him from the car, and was authorized to use such force as necessary for that purpose.”
But in ejecting plaintiff from the cars without knowing whether he had paid for the ticket No. 1496, the defendant acted at its peril. If the facts were, as the jury afterwards] found, that plaintiff had paid for a ticket and only received • ticket No. 1496, then he had the unquestioned right to ride on j the cars without molestation from any one. It was the duty
3. This view of the case brings us to the consideration of the question whether the court erred in refusing to give the several instructions asked by defendant’s counsel, which tended to limit the amount of damages that plaintiff was entitled to recover, to the price of another ticket, and compensation for one day’s loss of time. These instructions were to the effect, that if the jury believed, from the evidence, that the plaintiff purchased and paid for ticket No. 1496; but that the agent and conductor honestly believed, and had good reason to believe that he had not paid for said ticket, and that the defendant’s agent used no more force than was necessary in ejecting plaintiff from the cars, and did not make any unnecessary disturbance to attract the attention of the passengers in so doing, “then,” as' stated in the second instruction, “the plaintiff * * '- is only entitled to recover such damages as he may have sus
In Johnson v. Wells, Fargo & Co., the plaintiff was a passenger upon defendant’s stage-coach, and received bodily injuries by the upsetting of the coach, through the negligence of the defendant. The instruction which was thero given authorized the jury in estimating the damages to take into consideration “the bodily suffering of the plaintiff, his pain of mind,” etc., etc. The objections were to the words “his pain of mind,” and a majority of the court held that the plaintiff was not entitled to any damages for “his pain of mind, aside and distinct from his bodily suffering.”
A careful examination of all the authorities cited and reviewed in Johnson v. Wells, Fargo & Co., and of the subsequent cases of Pennsylvania and Ohio Canal Co. v. Graham, 63 Penn. St. 290; Smith v. Holcomb, 99 Mass. 552; Holyoke v. Grand Trunk Railway, 48 N. H. 541; Matheson v. New York Central R. Co., 62 Barb. 364; Smith v. Overby, 30 Geo. 241; Cox v. Vanderkleed, 21 Ind. 164; Gould v. Christianson, B. &. H. 507; Cooper v. Mullins, 30 Geo. 152, and Fay v. Parker, supra, which bear more or less upon the point decided, has convinced me that the instruction in Johnson v.
It is a well settled principle of law, recognized by all of the authorities, that if the plaintiff is bodily injured by the wrongful act of the defendant, he would be entitled to compensation for such an injury. The theory upon which such compensation is allowed being that the injured party, himself without wrong, is entitled to compensation for all the injuries naturally and necessarily resulting from the wrongful act of the party who caused the injury. In such cases the jury are authorized to give such damages as will make the injured party whole for all the injuries resulting directly from the wrongful and unlawful act, without any regard to the motives that may have induced the commission of the act. This rule is certainly founded upon the plainest principles of natural justice, for, even, as between innocent parties if an injury has occurred and damages been sustained, he that caused the injury must bear its consequences. If it be true that an injured party may befindemnified against the physical suffering, why not against mental suffering as well? The humiliation and mortification of being publicly, as well as forcibly, ejected from the cars upon which plaintiff, if he had paid his fare, and otherwise properly conducted himself, had a right to ride, is as much an injury to his person as if he had received bruises upon his body and suffered physical pain. Take for instance a case of assault and battery committed on thepersonbypullingplaintiff’snose or spitting in his face, the object being solely to degrade him. lYliat is the actual injury? Is it the bodily suffering? Certainly not. That amounts to nothing compared to the injury to his feelings, to his honor, his pride, and his social position. In such a case, would any one question for a moment the right of a jury to give liberal damages to compensate plaintiff for the actual injury received. The principiéis the same when applied to the case under consideration. The differ
In Hamilton v. Third Avenue Railroad Company, a case almost identical to the one under consideration, the injury complained of being the forcible ejection of the plaintiff from a car of the. defendant by the conductor for his refusal to pay the fare demanded from him, the plaintiff claiming that he was not liable for the fare because he had taken passage upon another ear of the defendant and’ paid the entire fare which entitled him to a through passage to the city hall, from which at an intermediate point he was transferred to the one in question. No unnecessary force was used in ejecting the plaintiff, and he sustained no material injury therefrom. The conductor acted in good faith, honestly believing that the plaintiff had no right to a passage unless he paid the fare demanded from him. Upon this state of facts the court say: “It follows that if the plaintiff was entitled to a passage on the car in question without the payment of any additional fare his ejection therefrom was unlawful, and gave him the right to recover from the defendant the damages thereby sustained irrespective of the motives of the conductor in putting him off. This right would not be impaired by showing that the conductor acted in good faith in the honest belief that the plaintiff had no such right, and that he was acting in the strict performance of his duty to the defendant. The act, nevertheless, was unlawful, and being so, the plaintiff had a right to compensatory damages therefor. These included not only compensation for the loss of time and the amount the plaintiff was obliged to pay for passage upon another car, but in addition thereto the injury done to his feelings might be taken into consideration by the jury and a' suitable recompense given therefor.” (53 N. Y. 28.)
In Smith v. Pittsburgh, Fort Wayne & Chicago Railway
4. Upon a careful consideration of the testimony in this case, it is evident that the amount of the verdict could only be sustained, if at all, upon the theory that the jury had a right not only to assess damages in full compensation for the injury which plaintiff actually received; but in addition to award further damages solely as a punishment to defendant, that might serve as a warning and example for the protection of the public. This was clearly erroneous, and even for argument sake admitting that such damages were allowable, the amount of the verdict is so excessive as to indicate passion and prejudice upon the part of the juiy. The jury are and ought to be allowed great latitude in assessing damages in actions of this character. They should
Upon the ground that the damages are excessive, the judgment must be reversed and cause remanded for a new trial.
Concurrence Opinion
concurring:
I concur in the conclusion of the Chief Justice that the judgment in this case must be reversed upon the ground that excessive damages were awarded. But as my conclusion depends upon reasons which are, to some extent, different from those which he has set forth in his opinion, I have thought proper to state, very briefly, my own views of the case.
Upon the first point discussed, I concur in the opinion that'the motion to transfer the cause to the United States court was not supported by a sufficient affidavit, and that it was properly overruled for that reason. I doubt, however, if the course suggested as the proper one to have been pursued would have brought the corporation defendant within the terms of the act of congress upon which it relied. That a corporation may, in some manner, avail itself of the provisions of that lav has been assumed, without being expressly decided, by the supreme court of the United States (19 Wall. 214), and that case is probably binding authority on the state courts. But how a corporation can comply with the conditions of the law is something that has never been pointed out to. my satisfaction. If I believed, as was held in the case just referred to, that the law, being of a remedial nature, ought to be liberally construed, I could see how, by the aid of a very liberal construction, its benefits might be extended to a corporation. But I think the opinion generally expressed by the state courts, that its op
The only question, therefore, which, the jury had to decide, in order to determine whether the plaintiff was entitled to recover, was this: Did he or did he not pay for his ticket ? If he did he was entitled to a verdict. If he did not the defendant was entitled to a verdict. Upon this issue the jury, under proper instructions, found for the plaintiff, and there was abundant testimony to sustain such finding. The only remaining question was as to the measure of damages, and, in my opinion, this question also was settled by the pleadings. It seems to be well settled, that for any willful trespass to the person, the injured party may recover what are called exemplary or vindictive damages. The forcible expulsion of a passenger from a public conveyance when he is rightfully there, necessarily involves a trespass to the person, (in this case, it involved an assault and battery,) and it is a wrong which is inevitably accompanied with more or less of outrage and insult. No matter how mildly a conductor may behave—no matter how honestly he may be mistaken, a passenger cannot be forcibly thrust out of a car where he has a right to be, without being insulted and outraged in his feelings. And if there is no excuse for the act, except the mistake of the carrier, and that mistake is solely due to the carrier’s negligence, it will be the same as if there was no excuse at all, and the law will imply that the act was malicious. So in this case, if the plaintiff did pay for his ticket, as the jury have found that he did, the mistake of the defendant cannot be pleaded as an excuse for his expulsion from the cars, and he was entitled to vindictive damages if he was entitled to any damages at all. That vindictive damages include compensation for the outrage to the feelings is well settled by the authorities, and is not opposed by the case of Johnson v. Wells, Fargo & Co., in which this court went no further than to hold that mental pain, as distinct from bodily pain, is not the subject of compensation in a case where the injury is the result of negligence.
As to the question, whether a jury in awarding vindictive damages can go beyond a full compensation to the plaintiff for his pecuniary loss, and bodily and mental suffering, and add a further sum, by way of punishment to the defendant, for the sake of example, I think the weight of reason and the best considered cases are in favor of restricting the award to compensation to the plaintiff. Of course, the amount of compensation to which lie will be entitled will depend, in every case, upon the circumstances of the injury, and in case of gross and wanton outrage, heavy damages would be allowed, which, while they would go to the plaintiff as a compensation, would operate incidentally as a severe punishment to the defendant. In this sense, and in this sense only, in my opinion, is it proper to say that a defendant may be punished by vindictive damages.
It is for these reasons that I concur in-the opinion that the amount of damages awarded in this case evinces passion and prejudice on the part of the jury. If the injury complained of had been attended by any special circumstances of wanton injury, five thousand dollars might not have been an extravagant verdict; but considering the facts proved, it certainly was excessive.