41 Mo. App. 298 | Mo. Ct. App. | 1889
Lead Opinion
The plaintiff sued for and recovered damages in the trial court for being wrongfully ejected from defendant’s street car. The evidence tended to show that soon after getting onto the car a controversy arose between plaintiff and the conductor as to a transfer ticket. Plaintiff contended it was good for a ride
“2. And, if the jury shall find for the plaintiff, they will allow him as his actual damages such sum as will fairly compensate him for his physical injuries, if any, and for his humiliation, if any was suffered, in being ejected from defendant’s car; and, if the agents of defendant, with malice toward plaintiff, and in the manner and under the circumstances set forth in the preceding instruction, ejected plaintiff from said car, then in addition to the actual damages above authorized, if any such were sustained, the jury may allow plaintiff, by way of punishing defendant and making an example of it for others in like cases, such further sum as the jury believe will be effective in that behalf. The whole amount of the verdict of the jury, however, cannot exceed five thousand dollars.”
This action of the court is the chief matter we are asked to review. It is apparent from the testimony that the defendant did not directly, or by any circumstance, ratify the action of its servants. Nor does it appear that they had any knowledge of any such misbehavior of these servants at any other time.
The terms exemplary, vindictive and punitory damages are used interchangeably, but by whichever name we call them they are allowed as smart money, as a
Plaintiff has, of course, a right to compensatory damages, for however innocent and blameless defendant may in fact be, it must nevertheless stand for the act of the conductor in so far as to compensate plaintiff for all legal injury received. In this respect the conductor is, pro Tiae vice, the corporation. And when we consider the extent to which the courts may go, under our adjudications, by way of compensating the injured party, it will be seen that we are not fixing the limits any too narrow in the views to which we have given expression.
It is, however, contended that controlling decisions of the supreme court uphold the instruction of the trial court. It is undoubtedly the rule that in actions of tort, where the wrong complained of has been wilfully, maliciously or wantonly committed, exemplary damages may be allowed. This rule has been frequently stated. But the rule has its exceptions or qualifications. One of these is that the master will not be held liable for exemplary damages for the wrong of his servant if he neither authorized it before commission, or ratified it after commission. Slight acts of ratification it is true will be held to be sufficient, but there must be either prior authorization or subsequent ratification. Some confusion has unnecessarily resulted from the fact that the courts have, in cases where the facts upon which
It is not to be denied that the authorities in the country generally are not uniform, but it arises from the fact, as I conceive, that all those who have held that the master, in addition to making compensation, may be punished for the act of his servant, which he did not authorize or ratify, have failed to note the reason upon which, and for which, such damages are allowed. The reason and the only reason why such damages are allowed, as before intimated, is that their infliction will deter the
So strongly logical is this position that it cannot be combated without betraying an admission of its truth. Thus in Goddard v. Railroad, 57 Maine, 202, the judge writing the opinion says, by way of enforcing his argument, that the corporation ‘ ‘ can secure conductors and brakemen who will not assault and insult passengers. When it is thoroughly understood that it is not profitable to employ careless and indifferent agents or reckless and inslvent servants, better men will take their places, and not before. * * * It will be an impressive lesson to these defendants, and to the managers of other lines of public travel, of the risk they incur when they retain in their service servants known to be reckless, ill-mannered and unfit for their places.” That is, of course, the corporation must be an agent in the matter in failing to do that which by prudence and care it could have done. I take it to be a matter of course, that if the master is not careful and prudent in the selection of his servants, he has committed a wrong upon which a foundation may be laid for punishing him. But if the master has exhausted every reasonable endeavor to secure good servants, and is deceived in a way of which no business foresight could have given warning and discharges such servant as soon as he learns of his wrong, is the master
In support of the position which we have taken, I cite from among the array of authorities collected by counsel, the following: Craker v. Railroad, 36 Wis. 657; The Amiable Nancy, 3 Wheat. 546; Cleyhorn v. Railroad, 56 N. Y. 44; Sullivan v. Railroad, 12 Ore. 392; Hagan v. Railroad, 3 R. I. 88. For the error in giving the instruction complained of the judgment will be reversed and the cause remanded. Smith, P. J., concurs in a separate opinion ; Gill, J., dissents.
Concurrence Opinion
(concurring). — I confess that the rule in relation to punitory damages, as applied to corporations, is not well settled in this state. The cases have left room for doubt on the subject. The rulings of the supreme court, as may be seen by reference to the cases cited in the opinions in this case, instead of settling, seem to unsettle, the rule. It is contended that the adjudged cases support either view of the law. The rule either does or does not obtain in this state. Its
I do not, myself, however, regard the question of the existence of the rule, with its qualification, an open one in this state. If the question were res integra, I should hesitate long before lending it my sanction. . I do not think the qualification a logical corollary to the proposition. Besides, I am inclined to think that the application of the qualification is not countenanced by a sound public policy. But the cases of Perkins v. Railroad, 55 Mo. 201; Graham v. Railroad, 66 Mo. 536, and Randolph v. Railroad, 18 Mo. 609, I think, are conclusive upon us.
Whatever may be the diversity of opinion which has arisen in consequence of other decisions of the supreme court, where no mention is made of the qualification, I think, in the absence of an express ruling, overthrowing the Perkins and Graham cases, just cited, that we must follow them, whether they have the approval of our judgment or not. With these convictions, I feel constrained to concur with Judge Ellison in the result which he has reached in his opinion.
Dissenting Opinion
(dissenting). — With my understanding of the law as it is, and as it should be, I cannot concur in the foregoing opinion. In the language of Judge Thompson, in his work on carriers and passengers, it seems to me, even in the face of authorities to the contrary, that “the rule which is in accord with reason and the weight of authority, is that passenger carriers, although corporations, may be liable, in a proper case, in exemplary damages, for injuries caused by their agents, without a direct authorization, or subsequent ratification, of the act complained of.” Thompson on Carriers of Passengers, p. 575. This view is sustained by other eminent judges and text-writers. One of the latter, in stating the law, uses
By the opinion of the majority herein, it is admitted that the passenger-carrier corporation is liable for such damages wrongfully committed by the conductor while managing and operating the trains as are denominated “compensatory damages,” but that the corporation is not responsible for exemplary damages, except it appear that it had notice of the cruel and oppressive acts of the conductor, and ratified the same, or had previously directed such malicious conduct. This is noted in the opinion as an exception to, or qualification of, the general rule, and reliance is placed on decisions reported in 55 Mo. 20166 Mo. 536, and 18 Mo. App. 609. This contention grows out of a remark made by Judge Vories in Perkins v. Railroad, 55 Mo. 214, where the learned judge, after admitting the right of the injured and insulted plaintiff to recover exemplary damages from the corporation, for the wilful and malicious wrongs of the conductor, voluntarily stated (on a point not in issue in that case) “that a principal cannot, in general, be compelled to pay exemplary damages for the fault of his agent, if it be neither
While then the cases before cited do not in my opinion furnish controlling matter for our decision here, the supreme court of Missouri has in other cases given us strong argument for the application of the general rule before contended for, to-wit: That where the officers or agents of a corporation act wantonly or maliciously, the corporation may be held to answer in exemplary damages, and that, too, without proof of prior express authorization or subsequent ratification. Hicks v. Railroad, 68 Mo. 329; Travers v. Railroad, 63 Mo. 421; Doss v. Railroad, 59 Mo. 27; Eckart v. Transfer Co., 2 Mo. App. 46; Maleck v. Railroad, 57 Mo. 17. It will be found, in an examination of these decisions, that they uniformly recognize the liability of the corporation for exemplary damages where the injury is committed by the officer or agent in the line of his employment and is attended by circumstances of oppression, insults or malice ; and that in adhering to this doctrine, announcing and reannouncing the same, there is no qualification attached (as is contended for by defendant) that the corporation is not liable for such punitive damages unless it had previously authorized the malicious acts, or had subsequently, on notice, approved the same. I do not claim these cases furnish precedents controlling the case now under review. The exact point here made was not presented there ; at least, it does not so appear from the published opinions. They are, however, potent, as argument, in support of
In Goddard v. Railroad, 57 Me. 202, et seq., is found a very vigorous and exhaustive review of this question; and. since our supreme court has, on two occasions, at least, cited the same with apparent approval (55 Mo., pp. 213-214 and 57 Mo., p. 22) I beg to quote from the court’s opinion, and adopt its reasoning, so applicable to the facts of this case : “ The law requires the common carrier of passengers to. exercise the highest degree of care that human judgment and foresight are capable of to make his passengers’ journey safe. Whoever engages in the business impliedly promises that his passenger shall have this degree of care. * * * If the passenger does not have such care, but on the contrary is unlawfully assaulted and insulted by one of the very persons to whom his conveyance is intrusted, the carrier’s promise is broken, and his legal duty is left unperformed, and he is necessarily responsible to the passenger for the damage he thereby sustains.” This was said in reference to the general doctrine of liability for damages occasioned by the acts of the agent or employe of a carrier. Further on, in relation to the question of punitive or exemplary damages, the same court uses the following language: “Hut it is said that if the doctrine of exemplary damages must be regarded as established in suits against natural persons for their own wilful and malicious torts, it ought not to apply to corporations for the torts of their servants on a train (such as a brakeman in that case) when the tortious act was not directly nor impliedly authorized nor ratified by the corporation.” * * * “ We confess,” says the court, “that it seems to us that there is no class of cases where the doctrine
The judgment of the trial court should, in my opinion, be affirmed,
Rehearing
ON REHEABING.
After further consideration we adhere to the original opinion. We believe it to be in line with the supreme court of this state. It is in accord with the great weight of authority elsewhere, and is the only result to be deduced from the reason upon which such damages are allowed. The suggestion that the conductor is the master will apply just as readily to the teamster or other servant of an individual, and we cannot make out a rule for one that will not apply to the other. It would be out of all reason to permit one rule for a corporation and another for an individual,
The original opinion, we find to be sustained by the following text-writers: Wood’s Field on the Law of Corp., secs. 316, 318; Field on Dam., sec. 86; Hutchinson on Carriers, sec. 813; 2 Rorer on Railroads, 870; 2 Morawetz on Corp., sec. 728; Patterson on Railway Accident Laws, sec. 392, pp. 471, 472. In Wood’s Field’s Law of Corporations, section 316, it is said: “ But the weight of authority, in order to hold the corporation liable for exemplary or punitive damages, would seem to require that the corporation either consent to, or authorize, or ratify the tort of the servant; the same as would be required, if the wrong were done by a natural person, in order to visit on him exemplary damages. Why punish the principal, who has not done
We have not considered how the case would be, if the wanton acts were committed by the general managing agent in general charge or oversight of the principal’s business. Upon such state of case we express no opinion either way, and only mention it because of a distinction which seems to be made in some adjudications.
The judgment is reversed and the cause is remanded.