Railway Co. v. Depascale

• Decision Date: 07 June 1904
• Parties: The Mahoning Valley Railway Co. v. Depascale.
• Court: Ohio Supreme Court

71 N.E. 633

70 Ohio St. 179

The Mahoning Valley Railway Co. v. Depascale.

Supreme Court of Ohio

June 7, 1904

Words of provocation - May mitigate punitive but not compensatory damages - Wrongful ejection from car of passenger by conductor - Action for tort - Liability of principal for act of agent - Question of error in charge to jury - Law of damages.

1. Words of provocation may be considered in mitigation of punitive, but not compensatory damages.

2. In an action for personal tort, the "compensatory damages" which may be recovered from the principal for the wrongful and unlawful act of its agent, are not subject to mitigation, nor is the liability of the principal for such damages defeated, by proof that the act which caused the injury was provoked or induced by abusive language used by the plaintiff to such agent.

3. Where in such action the jury, by the direction and instruction of the court, is restricted to the allowance of compensatory damages only, it is not error to refuse to charge: "that in determining the question of compensatory damages to the plaintiff, they may consider in mitigation thereof, the provocation brought about by the insulting words used by the plaintiff to defendant, if they find such words were used."

ERROR to the Circuit Court of Mahoning county.

Messrs Arrel, McVey & Tayler, for plaintiff in error, cited and commented upon the following authorities:

2 Sedgwick on Damages (7 ed.), 521; 1 Sutherland, 229; 2 Greenleaf on Evidence (8 ed.), par. 93; Black v. Mogle, 5 C C. R., 51; affirmed 51 Ohio St. 582; Barholt v. Wright, 45 Ohio St. 177; Goldsmith v. Joy, 4 L.R.A. 500; Fraser v Berkley, 7 Car. & P., 621; Perkins v. Vaughn, 5 Scott N. R 881; Burke v. Melvin, 45 Conn. 243; Bartram v. Stone, 31 Conn. 159; Robison v. Rupert, 23 Pa. St., 523; Kiff v. Youmans, 86 N.Y. 324; 40 Am. 543; Mowry v. Smith, 9 Allen, 67; Tyson v. Booth, 100 Mass. 259; Bonino v. Caledonio, 144 Mass. 299; 3 New England Reporter, 918; Aldrich v. Harvey, 50 Vt. 162; 28 Am. 501; Peavy v. Railroad & Banking Co., 8 S. E. Rep., 70; Harrison v. Fink, 42 F. 787; Railroad Co. v. Wetmore, 19 Ohio St. 110; Catering Co. v. Coit, 55 Ohio St. 398; Business College v. Lloyd, 60 Ohio St. 448.

Mr. Ensign N. Brown, for defendant in error, cited and commented upon the following authorities:

Railroad Co. v. Wetmore, 19 Ohio St. 110; Catering Co. v. Coit, 55 Ohio St. 398; Business College v. Lloyd, 60 Ohio St. 448; Railway Co. v. Valleley, 32 Ohio St. 345; Railroad Co. v. Skillman, 39 Ohio St. 444; Coleman v. Railway Co., 106 Mass. 160; Railway Co. v. Marsh, 9 Circ. Dec., 548; 17 C. C. R., 379; Railway Co. v. Boyer, 10 Circ. Dec., 199; 18 C. C. R., 327; Railway Co. v. Boucsein, 66 Ohio St. 682; Burke v. Melvin, 45 Conn. 243; Tyson v. Booth, 100 Mass. 258; Bonino v. Caledonio, 144 Mass. 299; Aldrich v. Harvey, 50 Vt. 162; 28 Am. 501; Kiff v. Youmans, 86 N.Y. 324; 40 Am. 543; Robison v. Rupert, 23 Pa. St., 523; Mowry v. Smith, 9 Allen, 67; Bartram v. Stone, 31 Conn. 159; Mogle v. Black, 3 Circ. Dec., 27; 5 C. C. R., 51; Harrison v. Fink, 42 F. 787; Peavy v. Railroad & Banking Co., 8 S. E. Rep., 70; 81 Ga. 485; Barholt v. Wright, 45 Ohio St. 177; Railroad Co. v. Berger, 64 Ark. 613; Fenelon v. Butts, 53 Wis. 344; Corcoran v. Harran, 55 Wis. 120; Donnelly v. Harris et al., 41 Ill. 126; Ogden v. Claycomb, 52 Ill. 365; Gizler v. Witzel, 82 Ill. 322; Norris v. Casel, 90 Ind. 143; Johnson v. McKee, 27 Mich. 471; Jacobs et al. v. Hoover, 9 Minn. 204; Prentiss v. Shaw, 56 Me. 427; Goldsmith's Admr. v. Joy, 61 Vt. 488; Willey v. Carpenter, 15 L.R.A. 853; Railroad Co. v. Barger, 26 L.R.A. 220; secs. 3434, 3436, 6983, Rev. Stat.

The facts in this case, so far as they are necessary to a proper understanding of the questions decided, are stated in the opinion.

CREW J.

This was an action by the defendant in error, Vincenzo DePascale, to recover damages for personal injuries alleged to have been sustained by him in consequence of his having been wrongfully and forcibly ejected from a car of the plaintiff in error while traveling thereon as a passenger. Upon the trial of this cause to a jury, a verdict was returned for DePascale for $450. A motion for new trial was overruled and judgment entered on said verdict by the court of common pleas. This judgment was affirmed by the circuit court. On the trial of the cause in the court of common pleas, Charles Lyttle, who was the conductor on duty and in charge of the car from which DePascale was ejected, was called as a witness on behalf of the railway company, and testified as follows:

DIRECT EXAMINATION.

"Q. Mr. Lyttle, what is your full name? A. C. L. Lyttle.

"Q. What is your occupation? A. Street carring.

"Q. Conductor upon the street car last July? A. I was.

"Q. Were you acting as conductor on the morning of July 8th? A. I was.

"Q. Did you see this plaintiff, Mr. Pascale, that morning? A. Yes, sir.

"Q. Where did you first see him? A. Duesing's store.

"Q. Where was it? A. At Duesing's store.

"Q. Did he board your car there? A. Yes, sir.

"Q. Tell the jury just what way that was done--how he got on the car. A. The car was stopped, and a passenger got off, and I gave the bell a pull to start the car, and Pascale was up along the car, and boarded the car while it was moving; as soon as he got on, he asked me what I started the car for before he got on; I told him I did not see him; he was not at the place he said he was, and began arguing with me, swore he could break my face, and all such stuff, and finally called me a damned bastard and a s- of a b-, and I took him by the coat and threw him off the car.

"Q. Did he swear any there? A. He did.

"Q. Were there any ladies on that car? A. There were ladies on the front of the car.

"Q. What did you do to him? A. Pushed him off the car.

"Q. How did you take a hold of him? A. Took him by, I think, the front of the coat.

"Q. And then where did your car go? A. Passed on, never stopped.

"Q. Oh, I guess that is all."

There was some conflict in the evidence as to just what was said by DePascale to Lyttle. Two witnesses say that the language testified to by Lyttle was used by DePascale. DePascale himself denies having used any such language towards Lyttle, and in this he is corroborated by the testimony-negative in form-of at least two witnesses who were at the time, passengers on said car and heard the altercation between DePascale and the conductor Lyttle. At the conclusion of the evidence, and before argument, counsel for the railway company submitted to the court the following request:

"Defendant requests the court to instruct the jury, that in determining the question of compensatory damages to this plaintiff, they may consider, in mitigation thereof, the provocation brought about by the insulting words used by the plaintiff to defendant, the conductor, if they find such words were used."

The court refused to give this instruction, and thereafter in its general charge, having theretofore withdrawn from the consideration of the jury the question of allowing exemplary damages, instructed the jury in part as follows:

"If this plaintiff used the words that are claimed here by the witnesses who have testified as to them, in relation to the names he called the conductor, it is no justification of the defendant railway company for any injury to his person that may have accrued to the plaintiff by reason of being forcibly ejected from a moving car. It may have been a perfectly natural thing on the part of the conductor to have done it, in case these words were used, but under our law words of that kind are never a justification, conclusively, as to damages that may result from an assault and battery following. * * * If this man, the plaintiff, used the words attributed to him, on the car, the conductor had the right to do either one of two things; one to arrest him and deliver him to the police authorities, or he had the right to eject him from the car, but in ejecting he must first stop the car, and then use only the necessary force to remove him; it would not justify him in causing the injury to the plaintiff, by removing him therefrom when the car was running, if the effect of that forcible ejection was to so injure him."

To the refusal to charge as requested, and to the charge as given counsel for the railway company, at the time excepted, and now assigns the action of the court in that behalf, as error. The theory of the instruction asked by counsel for the railway company is, that in an action for personal tort, words of provocation spoken by the plaintiff should be taken and considered by the jury in mitigation of actual or compensatory damages, as well as in mitigation of exemplary or punitive damages. Whether or not they may properly be so taken and considered and such effect be given them, is the question here presented by this request to charge. On this proposition the authorities are not in entire harmony. While in perfect accord upon the proposition that mere oral provocation or abusive language, is not a defense and will not of itself justify the offended party in assaulting, or in inflicting injury upon the person so offending, there is some conflict and contradiction in the decisions of the courts of last resort on the question whether mere provocative language can have the effect to mitigate or reduce compensatory damages, or whether it is to be limited in its office and effect to the mitigation and reduction of punitive damages, in those cases where punitive damages may be properly awarded. We think, that the better rule and the clear weight of authority, is in favor of the proposition that actual or compensatory damages are not in any case, subject to mitigation, by proof of mere provocation. The malice of the defendant...