143 N.W. 760 | N.D. | 1913
Lead Opinion
This action is to recover damages resulting from an assault and battery by defendant Giddings, inflicted on the plaintiff, Voves, while the plaintiff was riding in a passenger coach of the defendant company from Breckenridge to Wahpeton. The plaintiff has made both the conductor and the company employing him defendants in a suit for $2,000 alleged damages. Plaintiff’s version of the affair, as related in the testimony of himself and witnesses, is sufficient upon which the jury could have found an unprovoked, unwarranted, and malicious assault to have been made upon him by defendant Giddings. In justice to the defendants, their testimony tends to show an almost, if not quite, complete justification of whatever was done by the conductor, who admittedly, in an altercation, struck the plaintiff in the eye, causing a “black eye.” No other personal injuries of much consequence were inflicted. Plaintiff was a young man of twenty-one, strong, vigorous, and athletic, and from his own testimony certainly did nothing to avoid trouble. He was employed as a clerk at Wahpeton. He lost no wages nor time as a result of the affray. The jury, evidently, discounted plaintiff’s case considerably by returning a moderate verdict of $200 against the defendants, who appeal evidently more to test the principles of law involved than to avoid all liability.
Although several assignments of error are urged, we believe none of them can be seriously advanced, excepting one arising on the court’s instructions, in which the jury were instructed that they might assess punitive damages against the defendant railway company. There can be no doubt, under the evidence, as to the propriety of such an instruc
That no confusion in application of principles may be brought- in question, we will here state that defendant Giddings is shown by the proof to have been employed as a conductor of the Great Northern Railway Company prior to the incident in question for over eleven and one-balf years, and preceding which employment he was a brakeman for a year and a half; that he has never been in any similar trouble before; never uses intoxicating liquors; had no ill-will against the plaintiff, never having known him, nor, to his knowledge, seen him until this occurrence; that the plaintiff, the next day after the alleged assault, reported his version of it to the managing officials of the defendant company, who,' after examining into the merit of the affair, have retained Giddings in their employ; that this action was brought two days after the alleged assault took place. This is all the evidence bearing on the ratification by the company of what was done by the conductor.
■ This court has never declared the law of this jurisdiction upon the question of punitive damages. In a case from Dakota territory the Federal circuit court, in 1890, in Fell v. Northern P. R. Co. 44 Fed. 253, 7 Am. Neg. Cas. 254, announced a rule of corporate liability for exemplary damages based upon § 1946 of the Revised Codes of Dakota territory of 1877, identical with our Code, § 6562, Rev. Codes 1905, and in part upon the holding of the United States Supreme Court in Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489, 23 L. ed. 374, decided in 1876, and to the effect that “exemplary damages may be awarded against a master though the wrong complained of was the act of his servant, not authorized nor ratified by him.” The extent to which this Federal holding has been followed in this state is largely a matter of conjecture. Suffice it to say that the time has now come when the law as to the company’s liability for exemplary damages for malicious, tor-tious acts of its employees must be declared. Volumes have been written on the respective sides of the question. A direct conflict exists between the various jurisdictions, part of the states permitting recovery of the
It is true that the law as declared by § 6562, Eev. Codes 1905, which we regard but declaratory of the common law on the subject, had, long prior to its codification in the territorial statutes, been the declared and, excepting in a few jurisdictions, the generally accepted common-law doctrine. For its growth and a general discussion of the law of damages in this connection, see chap. 16 of Sedgwick on Damages. Looking upon the statute as but declaratory of established common law upon exemplary damages, we can see no applicability of that statute to the question before us. It declares: “In any action for the breach of an obligation not arising from contract, when the defendant has been guilty of oppression, fraud, or malice; actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant.”
Of course, in any action of the kind exemplary damages may be returned “when the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” Such is the conceded law applying to all defendants. But the troublesome question is, When should a corporation defendant be held to act and consequently be charged with malice ? For what servants will a public service corporation, a common carrier, for the purpose of punitive damages assessed by way of punishment against it, be held to have acted, that malice may be established by imputation or presumption? And here arises the conflict, not in the general law as declared by the statute, but in its application to corporate masters.
As to defendant Giddings, he has acted, and his responsibility for both compensatory and punitive damages is well settled. He should be held to the full statutory or common-law limit of his responsibility for his malicious act. But should defendant company also be charged with imputed malice because of his conduct is the question we do not regard as settled by the statute, § 6562. Any act on its part is but the result of an inference or imputation cast by law from the act of its
.We will now consider what the courts have said on the real question, that of whether defendant corporation can be held for punitive damages for the unauthorized and unratified malicious acts of its employee. A classification of the courts that have held upon the question is made by Labatt on Master and Servant, vol. 7, §§ 2554-2556. According to that authority “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,” in Alabama, Arkansas, Georgia, Illinois, Indiana, Kentucky, Maine, Maryland, Mississippi, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, West Virginia. See §§ 2554, 2555, and cases cited thereunder. Those holding the contrary doctrine, and that “the liability of railroad companies and other corporations, and of natural persons, sought to be charged with exemplary damages for wanton or oppressive acts of their agents or servants not participated in or ratified by the principal or master, has been denied in” California, Colorado, Connecticut, Hawaii, Louisiana, Michigan, New Jersey, New York, Oregon, Rhode Island, Texas, Vermont, Virginia, Wisconsin, and by the United States Supreme Court. See also Washington in
As to ratification by the company of the acts of the servant, because cf its failure to discharge him, ratification from that fact alone cannot and should not be inferred. We are in accord with the rule announced in Dillingham v. Anthony, 73 Tex. 47, 3 L.R.A. 634, 15 Am. St. Rep.
Under the facts in evidence there is no proof sufficient to warrant a finding of ratification of Gidding’s conduct by the defendant common carrier.
In this case both defendants have appealed. As before stated, we find no error in the trial except on instructions as to punitive damages as given concerning the company only, the instructions as to defendant Giddings being within the scope of the proof. The assignments urged as to the correction of the verdict by the jury has no merit. In the verdict as first reported by the jury, and before its reception, an ambiguity was discovered in that it was impossible to determine whether the verdict was for $100, against each defendant separately, making a $200 recovery, or a joint verdict, a $100 recovery. Upon ascertaining that a $200 joint and several recovery was intended, the court allowed the jury to return to their jury room, correct their verdict, and report the same accordingly, which was then received and the jury were discharged. We see nothing upon which prejudice could be predicated on the proceedings had on the return of the verdict.
As to the defendant Giddings the trial had is free from error. The judgment as to him should be affirmed. (Rev. Codes 1905, § 7227.) As to the defendant company we cannot say but that part, if not all, of the verdict was found as exemplary damages. Concededly the defendant company is liable for such damages only as would compensate for actual injury suffered by the plaintiff. Measured by this rule, compensatory damages only can be recovered of defendant company. The judgment entered against the Great Northern Railway Company, defendant, is ordered set aside and as to it a new trial is granted. The judgment as to defendant Giddings is affirmed. Respondent will recover judgment against Giddings for costs of printing his brief and
Dissenting Opinion
dissenting in part. I agree thoroughly with the supreme court of Washington (Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 11 L.R.A. 689, 26 Am. St. Rep. 842, 25 Pac. 1072) that the doctrine of punitive damages is an anomaly in the law, has no sound reason behind it, and should be abolished. It is nothing more nor less than “a hybrid between a display of ethical indignation and the imposition of a criminal fine.” (Haines v. Schultz, 50 N. J. L. 481, 14 Atl. 488.) I am firmly convinced that all that a plaintiff should be allowed to show and to recover in a civil action are his actual damages, and that it is Cor the state, and not for the individual, to impose and collect a fine. I believe, in short, that § 6562 of the Eevised Codes of 1905 should be repealed. -The statute, however, is still to be found in our Code. It provides: “In any action for the breach of an obligation not arising from contract, when the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant.” While it remains in the Code, I believe that corporations are liable in a case like the one at bar under its provisions, for the simple reason that “a corporation is an imaginary being. It has no mind but the mind of its servants; it has no- voice but the voice of its servants; it has no hands with which to act but the hands of its servants.” (Goddard v. Grand Trunk R. Co. 57 Me. 202, 2 Am. Rep. 39, 49.) The conductor was the sole representative of the company on the ground. He, to all intents and purposes, was the company. He was the officer in charge of the train. It is true that in the presence of a superior agent or officer his powers might dwindle into insignificance, but in the absence of such he was in command. The company had perforce to act and to express itself through living instrumentalities, as in itself it had no vitality, and it was acting through and in him. If a corporation cannot be held liable in punitive damages for the acts of such an officer, then it should not and cannot be held liable for punitive damages at all. See Shearm. & Redf. Neg. 6th ed. § 749.
