Voves v. Great Northern Railway Company, a Corp.
| Decision Date | 11 October 1913 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of the District Court for Richland County Allen, J.
Affirmed as to one appellant and reversed as to the other.
Judgment entered against the Great Northern Railway Company defendant, set aside and as to it a new trial granted. Judgment as to defendant Giddings affirmed. Respondent recovered judgment against Giddings for costs of printing his brief and his disbursement on appeal. Appellant railway company recovered of plaintiff judgment for its abstract and brief and its disbursements on appeal.
Murphy & Duggan, for appellants.
Punitive damages cannot be awarded against the defendant company, and only compensatory damages if any should be given against defendant Giddings. Doerheofer v. Shewmaker, 123 Ky 646, 97 S.W. 7; Georgia R. & Electric Co. v. Davis, 6 Ga.App. 645, 65 S.E. 785.
Punitive damages are not matter of right or compensation, but are allowed in proper cases as a punishment or deterrent. Lake Shore & M. S. R. Co. v. Prentice, 147 U.S. 101, 37 L.Ed. 97, 13 S.Ct. 261.
Punitive damages cannot be inflicted on a master without his participation in or ratification of the tort, and never as a matter of right. Topolewski v. Plankington Packing Co. 143 Wis. 52, 126 N.W. 554; Robinson v. Superior Rapid Transit R. Co. 94 Wis. 345, 34 L.R.A. 205, 59 Am. St. Rep. 896, 68 N.W. 961; Patry v. Chicago, St. P. M. & O. R. Co. 77 Wis. 218, 46 N.W. 56; Cobb v. Simon, 119 Wis. 597, 100 Am. St. Rep. 909, 97 N.W. 276.
There must be some authorization from the master, or participation in or ratification of the wrongful act of the servant, and ratification cannot be found from the mere fact of the retention of the servant after the act. Cobb v. Simon, 119 Wis. 597, 100 Am. St. Rep. 909, 97 N.W. 276; Haehl v. Wabash R. Co. 119 Mo. 325, 24 S.W. 737; Smith v. Middleton, 112 Ky. 588, 56 L.R.A. 484, 99 Am. St. Rep. 308, 66 S.W. 388; Hagen v. Providence & W. R. Co. 3 R. I. 88, 62 Am. Dec. 377; Craker v. Chicago & N.W. R. Co. 36 Wis. 657, 17 Am. Rep. 504, 8 Am. Neg. Cas. 665; Robinson v. Superior Rapid Transit R. Co. 94 Wis. 345, 34 L.R.A. 205, 59 Am. St. Rep. 896, 68 N.W. 961; Topolewski v. Plankington Packing Co. 143 Wis. 52, 126 N.W. 554; International & G. N. R. Co. v. Garcia, 70 Tex. 207, 7 S.W. 802; Chicago, R. I. & P. R. Co. v. Newburn, 27 Okla. 9, 30 L.R.A.(N.S.) 432, 110 P. 1065; Moore v. Atchison, T. & S. F. R. Co. 26 Okla. 602, 110 P. 1059; Stuyvesant v. Wilcox, 92 Mich. 233, 31 Am. St. Rep. 580, 52 N.W. 617; Trabing v. California Nav. & Improv. Co. 121 Cal. 137, 53 P. 644; Redwood v. Metropolitan R. Co. 6 D. C. 302; Haines v. Schultz, 50 N.J.L. 481, 14 A. 488; Sullivan v. Oregon R. & Nav. Co. 12 Ore. 392, 53 Am. Rep. 364, 7 P. 508, 8 Am. Neg. Cas. 578; Trinity & S. R. Co. v. O'Brien, 18 Tex. Civ. App. 690, 46 S.W. 389; Cleghorn v. New York C. & H. R. R. Co. 56 N.Y. 47, 15 Am. Rep. 375; Ricketts v. Chesapeake & O. R. Co. 33 W.Va. 433, 7 L.R.A. 354, 25 Am. St. Rep. 901, 10 S.E. 801; Lake Shore & M. S. R. Co. v. Rosenzweig, 113 Pa. 519, 6 A. 545, 10 Am. Neg. Cas. 79; Louisville & N. R. Co. v. Whitman, 79 Ala. 328, 8 Am. Neg. Cas. 9; Chicago, B. & Q. R. Co. v. Bryan, 90 Ill. 126, 8 Am. Neg. Cas. 175; Nashville & C. R. Co. v. Starnes, 9 Heisk. 52, 24 Am. Rep. 296; Maisenbacker v. Society Concordia, 71 Conn. 369, 71 Am. St. Rep. 213, 42 A. 67; Keene v. Lizardi, 8 La. 33; McCarthy v. De Armit, 99 Pa. 72.
Geo. W. Freerks, for respondent.
Punitive or exemplary damages are allowable against a corporation master for the wanton, wrongful, and malicious acts of the servant, committed while in and about the work of his employment. 1 Harris, Damages by Corp. 9.
Such damages may be given for gross or wanton negligence or malice. Southern Kansas R. Co. v. Rice, 38 Kan. 398, 5 Am. St. Rep. 766, 16 P. 817, 5 Am. Neg. Cas. 274; Philadelphia Traction Co. v. Orbann, 119 Pa. 37, 12 A. 816, 10 Am. Neg. Cas. 133.
In any case where such damages are recoverable against the servant in fault, they should be allowed against the master. Shearm. & Redf. Neg. 4th ed. § 749; 1 Harris, Damages by Corp. 9; Citing Maine, Missouri, and 2 Harris, Damages by Corp.; Lake Shore & M. S. R. Co. v. Prentice, 37 L.Ed. 100, note; Fell v. Northern P. R. Co. 44 F. 248, 7 Am. Neg. Cas. 254; Singer Mfg. Co. v. Holdfodt, 86 Ill. 455, 29 Am. Rep. 43; St. Louis, A. & C. R. Co. v. Dalby, 19 Ill. 353; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Atlanta & G. W. R. Co. v. Dunn, 19 Ohio St. 162, 2 Am. Rep. 382; Goddard v. Grand Trunk R. Co. 57 Me. 202, 2 Am. Rep. 39, 8 Am. Neg. Cas. 316; Jeffersonville R. Co. v. Rogers, 38 Ind. 116, 10 Am. Rep. 103; Bixby v. Dunlap, 56 N.H. 456, 22 Am. Rep. 475.
Corporations may be held liable for torts involving a wrongful intention, and exemplary damages may be recovered against them for the wrongful acts of their servants done in the course of their employment. Wheeler & W. Mfg. Co. v. Boyce, 36 Kan. 350, 59 Am. Rep. 571, 13 P. 609; Western News Co. v. Wilmarth, 33 Kan. 510, 6 P. 786; Times Pub. Co. v. Carlisle, 36 C. C. A. 475, 94 F. 762; Louisville & N. R. Co. v. Ballard, 85 Ky. 307, 7 Am. St. Rep. 600, 3 S.W. 530; Claiborne v. Chesapeake & O. R. Co. 46 W.Va. 363, 33 S.E. 262; Chesapeake & O. R. Co. v. Dodge, 23 Ky. L. Rep. 1959, 66 S.W. 606; Hart v. Charlotte, C. & A. R. Co. 33 S.C. 427, 10 L.R.A. 794, 12 S.E. 9; Hanson v. European & N. A. R. Co. 62 Me. 84, 16 Am. Rep. 409, 8 Am. Neg. Cas. 336.
This doctrine can be more beneficially applied to railroad corporations, in their capacity of carriers of passengers, than in any other class of cases. Louisville & N. R. Co. v. Garrett, 8 Lea, 438, 41 Am. Rep. 645; Cowen v. Winters, 37 C. C. A. 628, 96 F. 929 (C. C. A. 6th C.); New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss. 453; Canfield v. Chicago, R. I. & P. R. Co. 59 Mo.App. 354; Denver & R. G. R. Co. v. Harris, 122 U.S. 597, 30 L.Ed. 1146, 7 S.Ct. 1286; Rockford, R. I. & St. L. R. Co. v. Wells, 66 Ill. 321; Rucker v. Smoke, 37 S.C. 377, 34 Am. St. Rep. 758, 16 S.E. 40; Malloy v. Bennett, 15 F. 371; Chicago, B. & Q. R. Co. v. Bryan, 90 Ill. 126, 8 Am. Neg. Cas. 175.
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 twenty-one, 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.
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 employee 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 eleven and one-half 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.
This court has never declared the law of this jurisdiction upon the question of punitive damages. In a case from Dakota territory the Federal circuit court, in 1890, in Fell v Northern P. R. Co. 44 F. 248, 7 Am. Neg. Cas. 254, announced a rule of corporate liability for exemplary damages based upon § 1946 of the Revised Codes of Dakota territory of 1877, identical with our Code, § 6562, Rev....
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