Robinson v. Superior Rapid-Transit Ry. Co.

• Decision Date: 04 November 1896
• Citation: 94 Wis. 345,68 N.W. 961
• Parties: ROBINSON v. SUPERIOR RAPID-TRANSIT RY. CO.
• Court: Wisconsin Supreme Court

94 Wis. 345

68 N.W. 961

ROBINSON

v.SUPERIOR RAPID-TRANSIT RY. CO.

Supreme Court of Wisconsin.

Nov. 4, 1896.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by Rufus W. Robinson against the Superior Rapid-Transit Railway Company for damages for being wrongfully ejected from defendant's car. From a judgment in favor of plaintiff, defendant appeals. Reversed.Ross, Dwyer & Hanitch, for appellant.

Yate H. V. Gard, for respondent.

CASSODAY, C. J.

This is an action to recover damages by reason of the defendant's having, without cause, unlawfully, willfully, maliciously, and with force and violence ejected and expelled the plaintiff from one of its railway passenger cars, upon which he was rightfully riding after having paid his fare. The defendant answered, by way of admissions, denials, and allegations, to the effect that, if the plaintiff had paid his fare, the conductor of the car had forgotten the fact, and so ejected the plaintiff only after he had refused to inform the conductor whether he had paid his fare or not. At the close of the trial, the jury returned a verdict to the effect that they found for the plaintiff, and assessed his damages at $250, of which sum $200 was so awarded as exemplary damages. From the judgment in favor of the plaintiff for the full amount stated, and costs, the defendant brings this appeal.

1. We perceive no error in allowing the plaintiff to testify as to the conversation between himself and the conductor in respect to paying his fare while riding on the car, and at the time and immediately after he was ejected, and just after he got on the car again. The controversy was as to whether the plaintiff had or had not paid his fare. He was put off, because the conductor claimed he had not paid his fare. He was allowed to get on the car again, because the conductor became convinced that he had paid his fare. The res gestæ commenced when he paid his fare, and did not terminate until he returned to the car, and was allowed, by the conductor, to ride peaceably. Within the authorities, it included what the conductor said just after the plaintiff stepped back into the car. Hooker v. Railway Co., 76 Wis. 542, 44 N. W. 1085;Hermes v. Railway Co., 80 Wis. 592, 50 N. W. 584;Reed v. City of Madison, 85 Wis. 674, 56 N. W. 182. The case is clearly distinguishable from Grisim v. Railway Co., 84 Wis. 22, 54 N. W. 104;Ehrlinger v. Douglas, 81 Wis. 59, 50 N. W. 1011.

2. Error is assigned because the trial court, after charging the jury to the effect that the plaintiff was entitled to a verdict for compensatory damages for all injuries, including injuries to his feelings, further charged them to the effect that, if the conductor maliciously put the plaintiff off the car, then he was “also entitled” to what are called “exemplary” or “punitory” damages; that is, something different from, and over and above, the compensatory damages which the law allowed them to impose in such a case, in the way of warning and punishment, and as a public example. There is no claim that at the time in question the conductor was not acting within the scope of his employment, nor that the plaintiff had not paid his fare. The plaintiff was therefore entitled to compensatory damages. Whatever may be the rule in other states, it is settled in this state that, in actions for personal torts, such compensatory damages include not merely the plaintiff's pecuniary loss, but also compensation for mental suffering; and that, in awarding such damages in such a case, no distinction is to be made between other forms of mental suffering and that which consists in a sense of wrong or insult. Craker v. Railway Co., 36 Wis. 657;Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501;Grace v. Dempsey, 75 Wis. 323, 43 N. W. 1127;Reinke v. Bentley, 90 Wis. 459, 63 N. W. 1055. The question here presented is whether the plaintiff was “also entitled,” as a matter of law, to “exemplary or punitory” damages, in case the jury found that the conductor maliciously ejected the plaintiff. In Day v. Woodworth, 13 How. 371, Mr. Justice Grier, speaking for the court, said “that, in actions of trespass and all actions on the case for torts, a jury may inflict what are called ‘exemplary,’ ‘punitive,’ or ‘vindictive’ damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff. * * * This has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case.” This is quoted approvingly by Mr. Sutherland (volume 1, § 392). The same was followed in Pike v. Dilling, 48 Me. 539, where numerous adjudications are referred to, and an instruction to the jury to the effect that in such case they “were authorized, if they thought proper, in addition to the actual damages the plaintiff has sustained, to give him a further sum, as exemplary or vindictive damages, both as a protection to the plaintiff and as a salutary example to others, to deter them from offending in like cases,” was held to be in accordance with the weight of judicial authority in this country. In Webb v. Gilman, 80 Me. 188, 13 Atl. 689, it was said by the court that “exemplary or punitive damages cannot be demandedas a matter of right; actual damages may be.” To the same effect: Foote v. Nichols, 28 Ill. 486; Railway Co. v. Burke, 53 Miss. 200;Railway Co. v. Rector, 104 Ill. 296;Boardman v. Goldsmith, 48 Vt. 403;Snow v. Carpenter, 49 Vt. 426; Railroad Co. v. Gastineau's Adm'r, 83 Ky. 119; Railroad Co. v. Brooks' Adm'r, Id. 129;Stilson v. Gibbs, 53 Mich. 280, 18 N. W. 815;Wilson v. Bowen, 64 Mich. 133, 31 N. W. 81. In the last Illinois case cited, an instruction, substantially like the one in the case at bar, was held bad. In one of the Kentucky cases cited, an instruction that the jury “should” give punitive damages if t...