Norfolk & Portsmouth Traction Co. v. Miller

Citation174 F. 607
Decision Date04 November 1909
Docket Number864.
PartiesNORFOLK & P. TRACTION CO. v. MILLER.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

W. H Venable and Eppa Hunton, Jr. (Henry W. Anderson, on the brief), for plaintiff in error.

Hugh Gordon Miller, for defendant in error.

Before PRITCHARD, Circuit Judge, and KELLER and McDOWELL, District judges.

McDOWELL District Judge.

This is an action for damages, tried before the late Judge Purnell brought by the defendant in error, who will be hereafter referred to as the plaintiff, against the plaintiff in error who will be referred to as the defendant, resulting in a verdict and judgment for plaintiff for $3,000 and costs. The declaration alleges repeated and gross insults to the plaintiff by the motorman and conductor of an electric car of defendant's on which plaintiff was a passenger culminating in an unprovoked assault upon the plaintiff by a lineman (another subordinate employe of the defendant's) who was as is alleged incited and induced to make said assault by the motorman and conductor aforesaid. The declaration wholly fails to allege that the wrongful acts of these subordinate servants of the defendant's were participated in, authorized, or ratified by the defendant.

The defendant filed a plea of not guilty and a plea of justification. An instruction asked for by plaintiff and given, over the objection of defendant, reads as follows:

'That if the jury find that the injuries were committed in a reckless and willful disregard of the rights of the plaintiff as charged in the declaration, and that the defendant, after receiving notice of the facts, continued to retain the said conductor and motorman in its service, thereby intending to ratify such acts, the law allows the jury to give punitive or exemplary damages as a punishment to the defendant; that the object of exemplary damages is to punish a willful offender, and also to deter others from committing like offenses; that such damages may be made adequate as a punishment, and sufficient in amount to accomplish such object.'

The following instruction asked for by defendant was refused:

'The court instructs the jury that under the law of this case the plaintiff is not entitled to punitive damages or smart money as punishment to the defendant.'

Exceptions were duly taken by the defendant, and these rulings are inter alia assigned as error.

In Lake Shore R. Co. v. Prentice, 147 U.S. 101, 106, 13 Sup.Ct. 261, 37 L.Ed. 97, it is said: 'The single question presented for our decision, therefore, is whether a railroad corporation can be charged with punitive or exemplary damages for the illegal, wanton, and oppressive conduct of a conductor of one of its trains towards a passenger.

'This question, like others affecting the liability of a railroad corporation as a common carrier of goods or passengers-- such as its right to contract for exemption from responsibility for its own negligence, or its liability beyond its own line, or its liability to one of its servants for the act of another person in its employment-- is a question, not of local law, but of general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the several states. Railroad Co. v. Lockwood, 17 Wall. 357, 368, 21 L.Ed. 627; Liverpool Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 443, 9 Sup.Ct. 469, 32 L.Ed. 788; Myrick v. Michigan Central Railroad, 107 U.S. 102, 109, 1 Sup.Ct. 425, 27 L.Ed. 325; Hough v. Railway Co., 100 U.S. 213, 226, 25 L.Ed. 612.'

There is, so far as we are advised, no Virginia statute regulating this subject. Consequently we need not concern ourselves as to the Virginia doctrine on this point.

The rule which should have governed the trial court is thus expressed (at page 107 of 147 U.S., and page 263 of 13 Sup.Ct. (37 L.Ed. 97)) in the case above mentioned:

'In this court the doctrine is well settled that in actions of tort the jury, in addition to the sum awarded by way of compensation for the plaintiff's injury, may award exemplary, punitive, or vindictive damages, sometimes called smart money, if the defendant has acted wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations. But such guilty intention on the part of the defendant is required in order to charge him with exemplary or punitive damages. The Amiable Nancy, 3 Wheat. 546, 558, 559, 4 L.Ed. 456; Day v. Woodworth, 13 How. 363, 371, 14 L.Ed. 181; Philadelphia, &c., Railroad v. Quigley, 21 How. 202, 213, 214, 16 L.Ed. 73; Milwaukee & St. Paul Railway v. Arms, 91 U.S. 489, 493, 495, 23 L.Ed. 374; Missouri Pacific Railway v. Humes, 115 U.S. 512, 521, 6 Sup.Ct. 110, 29 L.Ed. 463; Barry v. Edmunds, 116 U.S. 550, 562, 563, 6 Sup.Ct. 501, 29 L.Ed. 729; Denver & Rio Grande Railway v. Harris, 122 U.S. 597, 609, 610, 7 Sup.Ct. 1286, 30 L.Ed. 1146; Minneapolis & St. Louis Railway v. Beckwith, 129 U.S. 26, 36, 9 Sup.Ct. 207, 32 L.Ed. 585.
'Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though, of course, liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive, or malicious intent on the part of the agent.'

And again at pages 114 and 115 of 147 U.S., and page 265 of 13 Sup.Ct. (37 L.Ed. 97), it is said:

'The law applicable to this case has been found nowhere better stated than by Mr. Justice Brayton, afterwards Chief Justice of Rhode Island, in the earliest reported case of the kind, in which a passenger sued a railroad corporation for his wrongful expulsion from a train by the conductor, and recovered a verdict, but excepted to an instruction to the jury that 'punitive or vindictive damages, or smart money, were not to be allowed as against the principal, unless the principal participated in the wrongful act of
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  • Erie Co v. Tompkins
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    ...43 F.2d 953, 71 A.L.R. 1096. 14 Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 106, 13 S.Ct. 261, 37 L.Ed. 97; Norfolk & P. Traction Co. v. Miller, 4 Cir., 174 F. 607; Greene v. Keithley, 8 Cir., 86 F.2d 238, 239. 15 Foxcroft v. Mallet, 4 How. 353, 379, 11 L.Ed. 1008; Midland Valley R......
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