Voves v. Great N. Ry. Co.

• Decision Date: 11 October 1913
• Citation: 143 N.W. 760,26 N.D. 110
• Parties: VOVES v. GREAT NORTHERN RY. CO. et al.
• Court: North Dakota Supreme Court

26 N.D. 110

143 N.W. 760

VOVES

v.GREAT NORTHERN RY. CO. et al.

Supreme Court of North Dakota.

Oct. 11, 1913.

Syllabus by the Court.

This is an action to recover damages for an assault and battery upon Voves, a passenger, committed by Giddings, a passenger conductor of defendant company. The jury were instructed that in their discretion they might allow exemplary damages, in addition to full compensatory damages, as against both Giddings and the railway company. From a recovery both defendants appeal. Held:

Punitive damages were not recoverable as against the defendant corporation; it not having participated in the wrongful act of its employé nor approved thereof either before or after its commission.

Section 6562, R. C. 1905, authorizing the recovery of punitive damages by way of punishment and their inclusion in the verdict “when the defendant has been guilty of oppression, fraud, or malice,” has no application under the facts in this case, that being a general statute applying to all defendants who have acted with malice, while here the act of the servant is not imputed to the corporate master under the doctrine of respondeat superior except because of grounds of public policy and necessity to the extent only of holding such master for full compensatory damages for which the defendant company is concededly liable. Such doctrine is not extended to authorize punitive damages imposed solely as a punishment to the defendant, in the absence of proof that such principal has authorized, sanctioned, or ratified the malicious act of the employé.

Defendant Giddings had been for more than 11 years in the employ of the defendant company as conductor prior to the alleged assault, and the testimony is undisputed to the effect that this was the first and only trouble he had ever had of a similar nature; that he was not intoxicated and never has used intoxicants; that complaint was made the next day after the occurrence to the company officials, but the company thereafter continued defendant in their employ, not discharging him. Held:

(a) Such facts do not constitute proof of any ratification by the company of the assault made by the conductor upon the plaintiff.

(b) Because of failure to discharge the employé the company cannot be held to have ratified his act, nor is it sufficient evidence of itself to warrant the submission of the question of ratification to the jury.

Other assignments of error examined and overruled.

As to defendant Giddings the evidence was sufficient to sustain the finding of the jury that he had acted wrongfully and with malice toward plaintiff and sufficient to support the instructions given as to exemplary damages, and the judgment as to him is affirmed.

The judgment entered as to the defendant company is set aside and a new trial granted.

Additional Syllabus by Editorial Staff.

Where, before the reception of a verdict in a personal injury case, an ambiguity was discovered making it impossible to determine whether the verdict was for $100 against each defendant separately, or a joint verdict for $100, the court properly allowed the jury to retire and correct same.

Appeal from District Court, Richland County; Allen, Judge.

Action by Martin C. Voves against the Great Northern Railway Company, a corporation, and another. From judgment for plaintiff, defendants appeal. Affirmed in part, and reversed in part.

Bruce, J., dissenting in part.

Purcell & Divet, of Wahpeton, and Murphy & Duggan, of Grand Forks, for appellants. George W. Freerks, of Wahpeton, for respondent.

GOSS, J.

This action is to recover damages resulting from an assault and battery by defendant Giddings, inflicted on the plaintiff Voves, while the plaintiff was riding in a passenger coach of the defendant company from Breckenridge to Wahpeton. The plaintiff has made both the conductor and the company employing him defendants in a suit for $2,000 alleged damages. Plaintiff's version of the affair, as related in the testimony of himself and witnesses, is sufficient upon which the jury could have found an unprovoked, unwarranted, and malicious assault to have been made upon him by defendant Giddings. In justice to the defendants, their testimony tends to show an almost, if not quite, complete justification of whatever was done by the conductor, who admittedly, in an altercation, struck the plaintiff in the eye, causing a “black eye.” No other personal injuries of much consequence were inflicted. Plaintiff was a young man of 21, strong, vigorous, and athletic, and from his own testimony certainly did nothing to avoid trouble. He was employed as a clerk at Wahpeton. He lost no wages nor time as a result of the affray. The jury evidently discounted plaintiff's case considerably by returning a moderate verdict of $200 against the defendants, who appeal, evidently more to test the principles of law involved than to avoid all liability.

[1] Although several assignments of error are urged, we believe none of them can be seriously advanced, excepting one arising on the court's instructions in which the jury were instructed that they might assess punitive damages against the defendant railway company. There can be no doubt under the evidence as to the propriety of such an instruction as to defendant Giddings. But the instruction given as to the company raises the vexing question as to whether a corporation common carrier is liable for punitive damages because of the conduct of its ordinary employé who, while discharging his duties in the course of his employment, makes an unwarranted assault upon the passenger then in the safe-keeping and under the protection of the carrier.

That no confusion in application of principles may be brought in question, we will here state that defendant Giddings is shown by the proof to have been employed as a conductor of the Great Northern Railway Company prior to the incident in question for over 11 1/2 years, and preceding which employment he was a brakeman for a year and a half; that he has never been in any similar trouble before; never uses intoxicating liquors; had no ill will against the plaintiff, never having known him nor to his knowledge seen him until this occurrence; that the plaintiff, the next day after the alleged assault, reported his version of it to the managing officials of the defendant company, who after examining into the merit of the affair have retained Giddings in their employ; that this action was brought two days after the alleged assault took place. This is all the evidence bearing on the ratification by the company of what was done by the conductor.

[2] This court has never declared the law of this jurisdiction upon this question of punitive damages. In a case from Dakota territory the federal Circuit Court in 1890, in Fell v. Northern Pacific Ry. Co., 44 Fed. 253, announced a rule of corporate liability for exemplary damages based upon section 1946 of the Revised Codes of Dakota Territory of 1877, identical with our Code (section 6562, R. C. 1905), and in part upon the holding of the United States Supreme Court in Railway Co. v. Arms, 91 U. S. 489, 23 L. Ed. 374, decided in 1876, and to the effect that “exemplary damages may be awarded against a master though the wrong complained of was the act of his servant, not authorized or ratified by him.” The extent to which this federal holding has been followed in this state is largely a matter of conjecture. Suffice it to say that the time has now come when the law as to the company's liability for exemplary damages for malicious, tortious acts of its employés must be declared. Volumes have been written on the respective sides of the question. A direct conflict exists between the various jurisdictions; part of the states permitting recovery of the carrier for exemplary damages, part denying generally the carrier's liability for such damages, and still others giving importance to a varying extent to a theory of ratification by the master of the employé's acts, the practical effect of which often is to hold the carrier for liability as effectually as though the rule of liability for exemplary damages had been adopted in the beginning.

It is true that the law as declared by section 6562, R. C. 1905, which we regard but declaratory of the common law on the subject, had, long prior to its codification in the territorial statutes, been the declared and, excepting in a few jurisdictions, the generally accepted common-law doctrine. For its growth and a general discussion of the law of damages in this connection, see chapter 16 of Sedgwick on Damages. Looking upon the statute as but declaratory of established common law upon exemplary damages, we can see no applicability of that statute to the question before us. It declares: “In any action for the breach of an obligation not arising from contract, when the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury in addition to the actual damages may give damages for the sake of example and by way of punishing the defendant.” Of course, in any action of the kind, exemplary damages may be returned “when the defendant has been guilty of oppression, fraud, or malice, actual or presumed.” Such is the conceded law applying to all defendants. But the troublesome question is: When should a corporation defendant be held to act and consequently be charged with malice? For what servants will a public service corporation, a common carrier, for the purpose of punitive damages assessed by way of punishment against it, be held to have acted that malice may be established by imputation or presumption? And here arises the conflict, not in the general law as declared by the statute, but in its application to corporate masters.

As to defendant Giddings, he has acted, and his responsibility for both compensatory and punitive damages is well settled. He should be held to the full statutory or common-law limit of his responsibility for his malicious act. But should defen...