Tripp v. American Tobacco Co.

• Decision Date: 27 April 1927
• Docket Number: 157.
• Parties: TRIPP v. AMERICAN TOBACCO CO. et al.
• Court: North Carolina Supreme Court

137 S.E. 871

193 N.C. 614

TRIPP v. AMERICAN TOBACCO CO. et al.

No. 157.

Supreme Court of North Carolina

April 27, 1927

Appeal from Superior Court, Pitt County; Cranmer, Judge.

Action by Greene Jackson Tripp against the American Tobacco Company and another. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

Civil action for damages, tried upon the following issues:

"1. Was the plaintiff wrongfully and unlawfully assaulted by the defendant W. H. Turner as alleged in the complaint? A. Yes.

2. If so. was the defendant Turner, at the time of said assault acting within the scope of his employment as night watchman of the defendant American Tobacco Company? A. Yes.

3. What compensatory damages, if any, is the plaintiff entitled to recover? A. $5,000.

4. What punitive damages, if any, is plaintiff entitled to recover? A. $5,000."

The facts are that W. H. Turner was night watchman and special officer employed to guard the tobacco warehouse and premises of the American Tobacco Company in the city of Greenville, N C.; that on the night of September 17, 1925, the plaintiff while walking along the edge of the premises of the American Tobacco Company, near a railroad switch, was shot by the said Turner and seriously injured. The plaintiff testified that as he was coming from behind the warehouse. it being between twilight and dark, some one (Turner) called to him and said "Who is that?" to which he replied, "Oh, it is me; what do you want?" Not paying any attention to the man, plaintiff continued in his approach toward the street, and when he got within about ten feet of the man Turner said. "Stop! Stop!" and the second time he said "Stop" he shot, the bullet striking plaintiff in the right chest. Plaintiff braced himself up against the building and continued toward the street. As he went by Turner, he said: "You have shot me; maybe I'll die." Whereupon, Turner said: "Lord have mercy, I didn't know who you were."

The defendant W. H. Turner testified that he did not know who Tripp was at the time he shot him, but thought he was a pillager and a trespasser, it being quite dark at the time, and that on account of plaintiff's refusal to stop when repeatedly commanded to do so, together with the harshness of his reply, and his quickened step, he (Turner) perceived it to be necessary to shoot to protect himself. As soon as the defendant discovered who the plaintiff was, he immediately exclaimed: "Lord, have mercy! Why didn't you tell me who you were?"

From a judgment on the verdict in favor of plaintiff, the defendants appeal, assigning errors.

Punitive damages may be recovered from corporate defendant for injuries maliciously inflicted by watchman in course of employment.

Corporate defendant held not liable for punitive damages to plaintiff shot by night watchman after failure to obey command to stop.

Skinner, Cooper & Whedbee and F. G. James & Son, all of Greenville, for appellant Tobacco Co.

S. J. Everett, of Greenville, for appellant Turner.

J. C. Lanier and Albion Dunn, both of Greenville, for appellee.

STACY C.J.

The chief exception presented by the record is the one which challenges the sufficiency of the evidence to warrant an award of punitive damages. The liability of the corporate defendant for punitive as well as compensatory damages, in case the tort committed by the defendant Turner in the course of his employment was willfully, wantonly, and maliciously inflicted, is not seriously questioned. May v. Telegraph Co., 157 N.C. 416, 72 S.E. 1059, 37 L. R. A. (N. S.) 912; Stewart v. Lbr. Co., 146 N.C. 47, 59 S.E. 545; Hayes v. So. Ry. Co., 141 N.C. 195, 53 S.E. 847; Jackson v. Telegraph Co., 139 N.C. 347, 51 S.E. 1015, 70 L. R. A. 738; Durham v. Richmond R. Co., 108 N.C. 399, 12 S.E. 1040, 13 S.E. 1; Louis Pizitz Dry Goods Co. v. Yeldell, 47 S.Ct. 509, 71 L.Ed. 952, decided April 11, 1927; note 48 L. R. A. (N. S.) 38. But the defendants stressfully contend that, on the evidence adduced in this case, only the issue of compensatory damages should have been submitted to the jury. A careful perusal of the record, viewed in the light of the pertinent authorities on the subject, leads us to the same conclusion. Swain v. Oakey, 190 N.C. 113, 129 S.E. 151; Webb v. Tel. Co., 167 N.C. 483, 83 S.E. 568; Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769; Meeder v. Railroad, 173 N.C. 57, 91 S.E. 527; Hodges v. Hall, 172 N.C. 29, 89 S.E. 802; Ammons v. Railroad, 140 N.C. 196, 52 S.E. 731; Hansley v. Railroad, 117 N.C. 565, 23 S.E. 443, 32 L. R. A. 543, 53 Am. St. Rep. 600; Id., 115 N.C. 602, 20 S.E. 528, 32 L. R. A. 543, 44 Am. St. Rep. 474; Holmes v. Railroad, 94 N.C. 318; Causee v. Anders. 20 N.C. 388; 8 R. C. L. 585 et seq.; 1 Sedgwick on Damages (9th Ed.) 686.

The following rule was adopted in Holmes v.

Railroad, 94 N.C. 318, Ashe, J., delivering the opinion of the court:

"Punitive damages are never awarded, except in cases 'when there is an element either of fraud, malice, such a degree of negligence as indicates a reckless indifference to consequences, oppression, insult, rudeness, caprice, willfulness, or other causes of aggravation in the act or omission causing the injury.' Thompson on Carriers of Passengers, 575; and to the same effect is Southerland on Damages, vol. 3, p. 270."

In Day v. Woodworth, 54 U.S. (13 How.) 363, 14 L.Ed. 181, the Supreme Court of the United States recognized the power of the jury, in certain tort actions, to assess punitive or exemplary damages, when circumstances warranting their imposition are properly made to appear. Mr Justice Grier. delivering the opinion of the court in that case, said:

"It is a well-established principle of the common law, 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. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured. In many civil actions, such as libel, slander, seduction, etc., the wrong done to the plaintiff is incapable of being measured by a money standard; and the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant's conduct, and may properly be termed exemplary or vindictive rather than compensatory. In actions of trespass, where the injury has been wanton and malicious, or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punishment or example, which has sometimes been called 'smart money.' 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."

Again, in Railroad Co. v. Quigley, 62 U.S. (21 How.) 202, 16 L.Ed. 73, Mr. Justice Campbell, speaking for the court, said:

"Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations."

And in Railway Co. v. Arms, 91 U.S. 489, 23 L.Ed. 374, Mr. Justice Davis, delivering the opinion of the court, said:

"Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they

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