Stewart v. Cary Lumber Co.

• Decision Date: 20 November 1907
• Parties: STEWART v. CARY LUMBER CO.
• Court: North Carolina Supreme Court

59 S.E. 545

146 N.C. 47

STEWART v. CARY LUMBER CO.

Supreme Court of North Carolina

November 20, 1907

Appeal from Superior Court, Harnett County; Peebles, Judge.

Action by J. W. Stewart against the Cary Lumber Company. From a judgment for plaintiff, including punitive damages, defendant appeals. Reversed, and new trial ordered on the issue of damages.

A lumber company operating a tramway for its private use is subject, in matters relating thereto, to the rules governing ordinary railway companies.

H. E Norris, Godwin & Davis, and D. H. McLean, for appellant.

Stewart & Muse and Godwin & Townsend, for appellee.

BROWN J.

The plaintiff's evidence tends to prove that the defendant is operating a railroad for conveying lumber; that on May 20 1903, the engineer of one of its log trains, as he was passing near plaintiff, wantonly and unnecessarily blew the whistle of the engine on purpose to frighten plaintiff's mule; that the whistle was blown violently and for some time and for the sole purpose of frightening the mule; that this blowing did not take place at a crossing, and was not done in furtherance of the defendant's business. The evidence tends to prove that the engineer blew the whistle for amusement and to "make the mule dance." His honor submitted these issues: "(1) Did defendant's engineer, fireman, or servants unlawfully and wantonly hollow, make noises, and sound the whistle of the engine for the purpose of frightening the horses of the plaintiff, and was the plaintiff injured thereby? Answer: Yes. (2) What damages, if any, is plaintiff entitled to recover? Answer: $1,000."

The defendant's counsel contend through prayers for instruction: First, that it is not liable at all for the wanton tort of its engineer, not done in furtherance of its business, and not in the discharge of his duty; second, that it is liable in any event, under the facts of this case, for actual damage only.

1. In considering the first proposition, I regard the defendant, although not a carrier of passengers, as a railroad, within the ordinary acceptation of that term. Sawyer v. Lumber Co. (at this term) 58 S.E. 598. I admit that the entire evidence shows that plaintiff's cause of action grows exclusively out of the wrongful and unnecessary act of the engineer, done wantonly for his own amusement. I fully agree that the rule obtains generally that a master is not answerable in damages for the wanton and malicious act of his servant, when not done in the legitimate prosecution of the master's business, and that the evidence in this case presents a "positive affirmative tort, pure and simple," committed by the engineer without the master's knowledge, approval, or ratification. If we had not held that lumber railroads of the kind operated by defendant are to be governed by the same rule in relation to the public and to employés as steam roads which are common carriers, I should sustain the contention of defendant in this case. Hemphill v. Lumber Co., 141 N.C. 487, 54 S.E. 420; Bird v. Leather Co., 143 N.C. 283, 55 S.E. 727. But this immunity from liability for tort referred to is not generally extended to railroads whose servants are intrusted with such dangerous instrumentalities, and have thereby such unusual and extensive means of doing mischief. This exception to the general rule seems to be established by most abundant authority, and for the reason I have given. In the well-considered case of Bittle v. R. R., 55 N. J. Law, 615, 28 A. 305, 23 L. R. A. 283, the New Jersey appellate court says: "The rule obtains generally that a master is not answerable in damages for the wanton and malicious acts of his servant. Yet this immunity is not generally extended to railroad corporations whose servants have such extensive means of doing mischief. Accordingly, it has been established that if their servants, while in charge of the company's engines and machinery, and engaged about its business, negligently, wantonly, or willfully pervert such agencies, the company must respond in damages; and this is the principle deducible from the authorities upon this subject." Mr. Jaggard expresses the principle as follows: "The master's duty to third persons may arise from ownership or custody of dangerous things, and it may extend to the conduct of the servant, though forbidden, and for the servant's private purpose, and not for the master's benefit." Jaggard on Torts, § 88. It is held by the Circuit Court of Appeals of the United States that the wanton and malicious use of the steam whistle of a locomotive, by servants of a railroad company in charge of the locomotive while in motion, on a regular run, renders the company liable for damages on account of injuries caused thereby. R. R. Co. v. Scoville, 62 F. 730, 10 C. C. A. 479, 27 L. R. A. 179. The Supreme Court of Illinois held the railroad liable in a case where the engineer, while his locomotive was standing near a crossing, at the instant a person was passing the track in front of his engine, negligently or maliciously caused the steam to escape, whereby the team was made to run off and injure plaintiff. R. R. Co. v. Harmon, 47 Ill. 299, 95 Am. Dec. 489. This view of the law by which railroads are excepted from the general rule is supported by an array of authority. Railway v. Harmon, 47 Ill. 298, 95 Am. Dec. 489; Railway v. Dickson, 63 Ill. 151, 14 Am. Rep. 114; Akridge v. Railway, 90 Ga. 233, 16 S.E. 81; Railway v. Triplett, 54 Ark. 289, 15 S.W. 831, 16 S.W. 266; Cobb v. Railway, 37 S.C. 194, 15 S.E. 878; Railway v. Starnes, 56 Tenn. 52, 24 Am. Rep. 296; Everett v. Receivers, 121 N.C. 521, 27 S.E. 991; Brendle v. Spencer, 125 N.C. 474, 34 S. E. 634. I think the form and wording of the first issue submitted in this case should make no difference whatever in considering the liability of the defendant for some damage. The case should be considered as if the usual issue as to whether plaintiff was injured by the negligence of defendant had been submitted. I agree with Judge McCormick in R. R. v. Scoville, supra, that "we are in danger of refining too much when we attempt to distinguish between a negligent and a wanton or malicious use of the steam whistle of the locomotive engine in charge of the proper servants of the company." This seems to be the view of this court in Foot v. R. R., 142 N.C. 52, 54 S.E. 843, where it is said: "The breach of duty can be, and frequently is, intentional and willful, and yet the act may be negligent." To same effect is Hayes v. R. R., 141 N.C. 197, 53 S.E. 847. The wrongful act in this case, in its relation to the engineer, was a wanton tort; in relation to the master, it was a mere breach of duty, growing out of the doctrine of negligence, for which motives of public policy require that the master should compensate the plaintiff for the injury sustained.

2. The defendant offered the following prayer, and excepted to the refusal of the court to give it: "The plaintiff has offered no evidence tending to show that the defendant authorized or ratified the wrongful act of defendant's agents and servants, and the plaintiff is not entitled to recover any amount as exemplary, punitive, or vindictive damages." I think the court erred in refusing the prayer, and in instructing the jury that they might award punitive damages. It seems to me that under all the authorities governing the relation of master and servant, and the liability of the former for the tort of the latter, the defendant is not liable at all for the act of the engineer, except upon the one ground that I have stated. To hold it liable on any other ground is directly against our own recent utterance. Sawyer v. R. R., 142 N.C. 5, 54 S.E. 793, and cases cited. This ground of liability, it appears to me, does not warrant the imposition of punitive damages, in the absence of evidence tending to show either authorization, ratification, or negligence upon the part of its managers in selecting a reckless and improper engineer. How far a principal may be mulcted in punitive damages for the act of his agent is a question about which there is much contrariety and not a little confusion of authority, yet the defendant's contention upon the facts of this case appears to me to be supported by most abundant authority, is not in conflict with any of our own decisions, and is founded upon reason and justice. I admit that where the servants of a corporation engaged in carrying passengers are guilty of acts towards the injured party as a passenger which would subject the servants to exemplary damages the great weight of authority holds the corporation liable to similar damages without proof that it ratified or directed the wrongful acts. 3 Sutherland, § 950, where all the cases are collected. This is because the corporation can act only through its agents, and when it commits to them the safety and comfort of persons in transitu over its road the authority of the corporation pro hac vice is vested in such agents, and "as to such passengers they are the corporation."

Upon this theory a railroad company may be held liable for punitive damages for the insults and rudeness of a conductor to a passenger. Holmes v. R. R., 94 N.C. 318. I admit that, where the agent of the company is acting within the scope of his duty and in furtherance of its business, the company may be held, under certain circumstances, liable for exemplary damages, even though the injured party is not a passenger. Thus, if the agent of the carrier maliciously uses unnecessary force in ejecting a trespasser it may be a case for punitive damages. Thompson on Negligence (2d Ed.) § 3253. Upon this principle this court allowed such damages against the company for the conduct of its brakeman in ejecting a trespasser from a train with reckless and unwarranted violence. Hayes v. R. R.,...