Moore v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 12 July 1910
• Citation: 110 P. 1059,26 Okla. 682,1910 OK 242
• Parties: MOORE v. ATCHISON, T. & S. F. RY. CO.
• Court: Oklahoma Supreme Court

110 P. 1059

26 Okla. 682, 1910 OK 242

MOORE v. ATCHISON, T. & S. F. RY. CO.

Supreme Court of Oklahoma

July 12, 1910

Syllabus by the Court.

If certain evidence be admissible, yet, if, upon the entire record, its exclusion could not under any event operate to the prejudice of the party offering same, such exclusion is not a reversible error.

Under the decisions controlling in the territory of Oklahoma punitive or vindictive damages are not to be allowed as against the principal, unless the principal participated in the wrongful act of the agent, expressly or impliedly, by his conduct authorizing it or approving it either before or after it was committed.

(a) For acts done by the agents of a corporation in the course of its business and their employment, the corporation is responsible in the same manner and to the same extent as an individual is responsible under similar circumstances.

(b) A corporation is liable, like an individual, to make compensation for any tort committed by an agent in the course of his employment, although the act is done wantonly and recklessly or against the express orders of the principal.

(c) A corporation, like a natural person, may be held liable in exemplary or punitive damages for an act by an agent within the scope of his employment, providing the criminal intent necessary to warrant the imposition of such damages is brought home to the corporation.

(d) A corporation, as an individual, if any wantonness or mischief on the part of an agent acting within the scope of his employment causes additional injury to the plaintiff in body or mind, is liable to make compensation for the whole injury suffered.

(e) A railroad corporation, without participating in such wanton acts, cannot be charged with punitive or exemplary damages for the illegal, wanton, and oppressive conduct of a conductor or brakeman of one of its trains toward a passenger.

A passenger, having been ejected from the passenger train of the defendant in error on the alleged ground of his failure to furnish a ticket or pay his fare, as the train began moving attempted to re-enter same, and, getting upon the steps of one of the cars, the brakeman kicked said party so as to cause him to lose his hold and fall from the moving train, sustaining an injury. Held, that under such assumed state of facts the act of the brakeman was a willful assault, and therefore the party, though not entitled to re-enter said train, in placing himself in such position, was not a contributing cause of the injury.

Error from District Court, Noble County; B. F. Hainer, Judge.

Action by Samuel H. Moore against the Atchison, Topeka & Santa Fé Railway Company. From a judgment in his favor, plaintiff brings error. Reversed, with instructions to grant a new trial.

Henry S. Johnson, for plaintiff in error.

Cottingham & Bledsoe, George M. Green, and Devereux & Hildreth, for defendant in error.

WILLIAMS J.

The following questions on this record are essential for determination:

(1) Did the court err in excluding what was said by other parties to the conductor after the controversy arose, but before his final ejection from the car, between him and the plaintiff in error as to his having bought a ticket?

(2) Did the court err in instructing the jury that the plaintiff in error was not entitled to recover punitive or exemplary damages, sometimes called "smart money"?

(3) Did the court err in giving instruction No. 8, in part as follows: "Likewise, if he attempted to board the train on the rear end of the Pullman or sleeper, after the train had started to move, and after the doors were closed, he had no right to board that train, and if he sustained any injuries while attempting to get on the rear end of the train while it was moving out of the station, or about to move from the station, and if he thereby sustained any injuries, the company would not be liable for such injuries." 1. The following proceedings were had: "Q. State what happened to you when you were being put off. A. Well there were five or six told the conductor I had a ticket and they saw me buy it. Mr. Green (attorney for defendant in error) We object to what other people said. The Court: Objection sustained. *** Q. State if any person other than yourself informed the conductor that they had seen you buy the ticket. A. Yes, sir. Mr. Green: To which the defendant objects. The Court: Objection sustained."

A drummer by the name of Miller testified that, before his (plaintiff in error S. H. Moore's) ejection from the car was consummated, "I myself told the conductor *** that I saw Mr. Moore give him a ticket. I told him that another gentleman says, I saw him buy the ticket. *** Part of this conversation arose while they were taking him from the seat. I told the conductor I saw him give him a ticket, and another gentleman by the name of Robinson told him that he saw him buy a ticket, and after a little Mr. Robinson vouched that he saw him buy the ticket at Salina, Kan., and there was 13 people in the crowd that Mr. Robinson was at the head of and they all vouched for seeing him buy the ticket. Q. Did they say that to the conductor?" On objection the court ruled that "What the witness (Miller) told Wilcox (the conductor) is competent." "Mr. Harris (attorney for defendant): I asked that the statements of the witness outside of any statements to the conductor with reference to having seen the ticket purchased be stricken out as incompetent. The Court: Objection sustained as to the other statements except that of the witness."

The question of the good faith of the conductor in ejecting the plaintiff from the train was an issue submitted to the jury and if, as a reasonable person, he ejected the plaintiff from the train, honestly believing that he had not delivered him a ticket, the jury were justifiable in finding that he acted in good faith. The following special questions were submitted to the jury:

"Q. 2. Do you allow anything for injury to plaintiff's feelings, and, if so, how much? A. Sixty dollars ($60.00).

"Q. 3. Did the conductor, porter, or brakeman use any violence towards the plaintiff at the time he was first ejected? A. To a limited degree.

"Q. 4. How much do you allow plaintiff by reason of the violence used by the conductor, brakeman, or porter? A. Nothing.

"Q. 5. How much do you allow plaintiff for actual injuries? A. Nothing except mental injury.

"Q. 6. How much do you allow plaintiff for loss of time? A. Two dollars ($2.00).

"Q. 7. How much do you allow plaintiff for inconvenience in remaining over in Derby? A. Two dollars ($2.00).

"Q. 8. Was it the custom of the conductor to give a check to a passenger for his ticket? A. Sometimes.

"Q. 9. Did the conductor act in good faith, and with an honest belief that the plaintiff had not paid his fare to Perry? A. Yes.

"Q. 10. Did the conductor or any of the other employés act in a malicious or wanton manner toward the plaintiff? A. To a limited degree.

"Q. 11. How much time did he lose? A. One day.

"Q. 12. What was his time worth per day? A. Two dollars ($2.00)."

The general verdict was in favor of the plaintiff on all the issues, assessing the amount of his recovery at the sum of $66.85. As to the admissibility of said evidence, see section 1789, vol. 3, Wigmore on Evidence (1904).

The conductor testified, in substance, that he did not remember the witness Miller telling him that he saw the plaintiff give him a ticket; that he might have said it; that he would not deny that such statement was made, but, if it was made, he had no recollection of it. The conductor further testified in hæc verba: "No, they said he had been riding on the train. They had seen him on the train. I do not deny that the passenger bought a ticket. I do not deny that. I did not question that at the time. The question was whether two men were riding on it or not. I wanted my receipt for my ticket to Perry, which I had given the passenger if he gave me a ticket to Perry. I work my train carefully and still know what I am doing. I have had lots of experience in that line."

The witness Miller having been permitted to testify that he told the conductor that he saw the plaintiff (Moore) give him a ticket, and the conductor having stated to the jury at the time that he ejected the plaintiff from the train that he did not question the fact that he (plaintiff in error) had bought a ticket at the initial point of his journey, but what he did question was as to whether the same had been delivered to him by the plaintiff, etc., and, if so, where the hat ticket he gave him was. Conceding, but not deciding, that the excluded statements were admissible, we fail to see wherein there was any prejudicial error thereby committed against the plaintiff in error.

2. This action arose under the territory of Oklahoma, having been tried in the lower court prior to the erection of the state, and after such date, an appeal therefrom being prosecuted to this court, it was an existing suit, not finally determined.

Section 1 to the Schedule of the Constitution of Oklahoma provides that no existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place.

In the case of St. Louis & San Francisco Railroad Co. v. Cundieff, 171 F. 319, 96 C. C. A. 211, it is said: "Construing all of these provisions together, we are of opinion that they do not change, and were not intended to change, the method of procedure in cases pending in the courts of Indian Territory and of the territory of Oklahoma, but that the civil cases pending in the Indian Territory should, after statehood, continue under the law in...