113 Cal. 105 | Cal. | 1896
This is an appeal by defendant from a judgment in favor of plaintiff, and from an order denying a new trial.
The material averments of the complaint are, that while plaintiff was traveling on a railroad train of defendant from Fresno to Fowler, and after he had given to the conductor a proper ticket, the latter demanded of plaintiff a second fare, and applied to him abusive epithets, and forcibly ejected him from the car in which he was riding onto the platform, and, with other employees of defendant, assaulted and beat him, and threatened to throw him from the moving train, to his damage in the sum of twenty-five thousand dollars; and that by reason thereof he was unable to attend to business for six days, and was compelled to employ a physician, to whom he incurred for medical services a bill of five dollars, and that his loss of time was of the value of ten dollars. All these averments are denied in the answer; and it is also therein averred that plaintiff was intoxicated, boisterous, profane, etc., in the presence of the other passengers, including women and children, and made of himself an absolute nuisance, and that defendant’s employees used no more force than was necessary to keep him quiet and protect themselves and the other passengers.
As to the personal conflict above referred to there is a very decided conflict of evidence. The plaintiff’s testimony was in substance this: He was sitting on the coalbox with some other persons, including Griffin, Gray, and Metcálf, near him, when Gordon, the conductor, came through the car taking up tickets. Griffin had no ticket, but gave the conductor a dollar which he put in his pocket. Plaintiff then gave the conductor his ticket, which the former accepted, punched and put in his pocket, and was about to go out of the door when Griffin asked him for his change. The conductor told Griffin to “ keep his shirt on,” and went out, but returned “ in a minute or two,” and gave him his change. He then turned to plaintiff and said, “ you have not ,paid your fare.” Plaintiff, according to his statement, said, “ Ibeg your pardon, I have”; whereupon the conductor immediately called him a G—d d-d liar, and said that he would throw him off if he didn’t pay. Plaintiff said: “I don’t wish to be thrown off; if that
The testimony of the conductor as to this personal conflict was radically different from that of plaintiff, and was substantially this:. When he reached the end of the car, he took tickets from plaintiff and two other men near the stove, Griffin giving him a ticket and not money, and was about to go out of the door when an employee of the defendant who was traveling on the car told him that he had missed a man behind the stove; and, turning back, he discovered Metcalf and asked him for a ticket, and Metcalf said that he had given him one. The conductor told him that he had not, and he replied that he would not pay any more, whereupon the conductor informed him that he must pay or get off, and reached over and took hold of Met-calf and raised him up. At that moment Griffin grabbed the conductor by the shoulders, and either Griffin or plaintiff said that no d--d conductor could put his friend off the train. The conductor then let go of Met-calf, and a personal conflict occurred between the conductor and Griffin, which ended in both landing on the platform, Griffin being down and the conductor on top of him; and the former crying to be let up, the conductor did so, and went back into the car where he then collected Metcalf’s fare without further trouble. He then went out of that car and did not return to it until after Fowler, where plaintiff got off, had been passed. According to his testimony he never struck plaintiff, or laid hands on him, or touched him, or had any personal conflict with him whatever. In this testimony he was fully corroborated by Willetts, who was a brakeman, fol
Counsel for appellant strongly argue that the evidence—the outlines and substance of which are above given—is insufficient to sustain the’finding of the jury that the conductor ever touched the plaintiff or injured him in any manner whatever. They argue that the story of plaintiff is so improbable and unnatural, that whatever reason there might be for believing it, if it stood alone, is entirely swept away by the testimony of the witnesses for defendant. And it is, indeed, somewhat difficult to believe that a conductor having any regard for his own interest and safety would refuse to receive an offer to pay fare by a passenger, and immediately commence an unprovoked attack upon him under the circumstances testified to in this case by plaintiff. However, we are not prepared to say that the evidence in favor of plaintiff was so slight as to warrant us in denying the power of the jury to base their verdict upon it. There was a sufficient conflict to put the determination of-the issue within their province.
But the amount of damages allowed was grossly beyond all reasonable limit. There is no pretense that plaintiff suffered any serious injury. He complained of a bruised leg, but the testimony of his physician shows only trifling injury. In his complaint he claims only ten dollars for loss of time, and five dollars for his doctor's bill. Under the circumstances shown by the
It was a question formerly whether an employer could, under any circumstances, be held liable for even compensatory damages caused by the wanton and malicious acts of his employee. In the recent case of Stephenson v. Southern Pac. Co., 93 Cal. 558, 562, 27 Am. St. Rep. 223, it was held that the defendant was not liable for damages caused by the wanton and mischievous backing of a locomotive by an engineer with intent to frighten passengers on an approaching street car. Perhaps the rule now is, and we will assume it to be so for the purposes of this case, that the master is liable for actual damage caused by an act of the servant done in the execution of authority given by the master, although it was caused “by a wanton and reckless purpose to accomplish the master’s business in an unlawful manner”; but it is not the law that in such a case the master is liable for more than will compensate the injured person for the damages which he has sustained. The master is not liable in such a case for vindictive damages, or “smart money,” unless he had either authorized the malicious act of the servant beforehand,
The decisions outside of this state establishing the principle above declared are innumerable; but it is unnecessary to refer to them here in detail, because the leading cases on the subject are referred to and cited in the comparatively recent case of Lake Shore etc. By. Co. v. Prentice, 147 U. S. Rep. 101, in which the supreme court of the United States reviewed the whole subject, and held the law to be as hereinbefore declared. In that case the only question before the court was whether a railroad company could be charged with punitive damages for wrongful treatment of a passenger by a conductor; so that the whole attention of the court was directed to that one point. There a conductor had been guilty of grossly oppressive acts toward the plaintiff, who was a passenger, because the latter had offered tickets which the conductor deemed insufficient, and had subjected him to great humiliation; and counsel for defendant admitted at the trial that plaintiff “was entitled to recover actual damages.” But the trial court
Turning to our own state we find that, with the single exception of some expressions in the opinion delivered in one of the departments in Gorman v. Southern Pac. Co., 97 Cal. 1, 38 Am. St. Rep. 157, the decisions here have been in harmony with and declaratory of the principle above stated. The first cause involving the point is Wardrobe v. California Stage Co., 7 Cal. 119; 68 Am. Dec. 231. In that case the plaintiff was injured while on a stage coach of defendant driven by defendant’s servant, and the trial court instructed the jury that, if the stage was driven recklessly at the time of the disaster, “ then they should find, not only the actual damages sustained by the plaintiff, but they should give additional damages such as would be an example thereafter,” etc., and the appellate court held such instruction to be erroneous, and for that reason reversed the judgment. In its opinion the court, after alluding to other matters, say: “In the second place, it is shown that the stage at the time of the accident was driven by the servant or agent of the defendant, and the rule in such cases is that the principal is liable only for simple negligence, and that exemplary damages cannot be imposed upon him.” The court refers at length to the early leading case upon the subject in The Amiable Nancy, 3 Wheat. 546, in which the opinion was written by Judge Story.
In Turner v. North Beach etc. R. R. Co. v. 34 Cal. 594, the plaintiff was wrongfully ejected from a car of defendant (a railroad corporation) by ?x conductor; and the trial court instructed the jury 'that the injury to plaintiff, if committed by the conductor willfully, etc., “entitled her to what is called exemplary damages,” and the court for this reason, although the verdict was for only seven hundred and fifty dollars, reversed the judgment. Mr. Justice Crockett, in delivering the opin
The foregoing cases establish the law in this state in harmony with the current of general authority; and they are not to be taken as overruled by what was said in the opinion in Gorman v. Southern Pac. Co., supra. In this latter case it was averred in the complaint that the plaintiff was wrongfully and with force expelled and ejected from defendant’s train, and damages were prayed for in the sum of ten thousand dollars. The jury returned a verdict for plaintiff in the comparatively small sum of five hundred dollars, and a close examination of the case will show that the only real question before the court was whether this small amount of damages was—independent of any question of punitive damages—so excessive as to warrant the court to set it aside. The trial court did not instruct the jury that they could give punitive damages, and we cannot see how the question of punitive damages was at all involved in the case. All that we know about instructions asked by the defendant and refused is contained in the sentence from the opinion of the commissioner
There are some other minor questions in the case, but they are not likely to arise upon another trial, and we do not deem it necessary to extend this opinion by discussing them. The. judgment must be reversed, because the damages found by the jury were excessive, and because the trial court erroneously instructed the jury that the case was a proper one for punitive damages against the defendant.
The judgment and order denying a new trial are reversed and the cause remanded.
Henshaw, J., and Temple, J., concurred.
Hearing in Bank denied.