Bakolay, J.
— This is an action to recover damages for personal injuries sustained by plaintiff by reason of his alleged unlawful ejection from defendant’s train.
The defense is that plaintiff was justifiably ejected, and that no unnecessary force was used in putting him off. The defensive allegations were put in issue by plaintiff’s reply. The cause then came to trial in due course.
The jury found for plaintiff in the sum of $7,500, under instructions which need not be closely examined, since the cause should go back for another reason, and the objectionable features of the old instructions can be removed in event of another trial.
It may be well, however, to mention (before leaving the subject of the instructions) that they were framed so as to authorize the jury to award, not merely compensatory damages for plaintiff’s injuries, but also exemplary damages, in the discretion of the jury, if they found that the conductor, and other agents of defendant, acted wantonly and maliciously in ejecting him from the cars.
There was evidence given by plaintiff and defendant, respectively, tending to support their several theories of the case already outlined.
Plaintiff’s testimony was to the effect that he was ejected from the rear platform of the last car of one of defendant’s passenger trains, by the conductor and brakeman, oue dark night, about 10 or 11 o’clock, in September, 1890, without cause, while the train was in motion, and in a dangerous place.
On-the other hand, defendant’s evidence accounted for the rejection by plaintiff’s refusal to pay fare, [147]*147insulting conduct on his part toward fellow passengers, particularly women; negatived all unnecessary force, and any unlawful act by defendant’s agents, and especially denied that he was ejected while the train was in motion.
During plaintiff’s case, one of his witnesses was allowed to testify that he (the witness) was in the smoking car when a stop occurred. After that stop, the witness started back to the rear of the train. He met a man on the way who told him of the fact that plaintiff had been ejected. Witness then entered the last car, from the rear end of which plaintiff had been put off, and his testimony then goes on thus:
“I went right in; I rushed in the car and asked Mr. Howe if he put that man off, and he said he did. I asked him to stop and get him; I told him I was afraid he was hurt, and he just remarked that he ought to have broke his darned neck, or damned neck, I couldn’t say for certain which it was.”
This testimony was objected to as incompetent, irrelevant and calculated to mislead the jury; but the objection was overruled and defendant duly excepted. The court remarked, in making the ruling, “The declarations of Captain Howe are competent.”
' The witness above quoted testified, on his direct examination, that this conversation with the conductor, Mr. Howe, took place about eight or ten feet from the • .front door of the rear passenger car; and that the train “had stopped some time before that.”
On his cross-examination, he further said, on this point, in answer to a question as to the interval of time between the stopping of the train and his start from the smoking car, that, to the best of his knowledge it was eight or ten minutes.
This statement is thought by some of my learned colleagues to have been intended by the witness to [148]*148refer to some other “stop” than that at which plaintiff was put off.
At all events, it is clear that the conversation with the conductor was not later than these eight or ten minutes after the ejectment. It may have been earlier; but it was plainly after the fact; after the conductor had finished the act, and had gone to the other end of the car where he met Mr._ Johnson, the witness.
The whole evidence does not bring that conversation into any other relation to the act of plaintiff’s ejection, than is indicated by the facts giveh above.
The question then is, was the conversation admissible.
The main ground on which plaintiff seeks to justify its admission is that it formed - a part of the res gestae. On that ground my learned brother, Maoearlane, has sustained its admissibility, though, it seems to ine, he apparently experiences some difficulty in reaching that result.
In Missouri it is too well settled by precedents to-admit of doubt that no such conversation could be given in evidence with the force of an admission by 'defendant. Price v. Thornton (1846), 10 Mo. 135; Rogers v. McCune (1854), 19 Mo. 558; McDermott v. Railroad (1881), 73 Mo. 516; Adams v. Railroad (1881), 74 Mo. 553; Aldridge’s Adm’r v. Midland, etc., Co. (1883), 78 Mo. 559; Devlin v. Railroad (1885), 87 Mo. 545.
The conductor was employed to represent the company in the management and control of its train.
The company was answerable for his actions within the fair scope of that employment. But the company was certainly not bound by any declaration of his-motives which did not accompany, or form part of some act or transaction within the apparent line of the service for which he was employed.
But it is needless to again go over the ground [149]*149■which the last group of decisions covers. Under those cases it is plain that, if the conversation between the witness and the conductor in this case has any proper standing as evidence, it can not be as an admission, but must be as a part of that essential, or descriptive, matter belonging to the main transaction itself, which tne law calls res gestee, for want of any English term, equally expressive.
It is far from my present purpose to attempt any sort of definition of res gestee.
Definitions are, no doubt, useful and necessary to impart general conceptions of the subjects with which jurisprudence deals; but they do not "always suffice to solve the difficulties met in the practical administration of law.
In the case at hand, the train men ejected the plaintiff from the train a few minutes, at least, before the conversation in question took place. The former act is the fact with which the conversation must be connected as a circumstance, to bring the conversation properly into the res gestee.
The conversation had two distinct bearings as a piece of evidence. First, it embraced an implied admission that the conductor had put the plaintiff off the train; and, secondly, it indicated motive, that is to say, hostility to plaintiff. Proof of the former, we might overlook as harmless, having no prejudicial effect on defendant’s rights; for both sides admitted that plaintiff was ejected from the train. La Duke v. Township of Exeter (1893), 97 Mich. 450.
But upon the question of the conductor’s motive of hostility to plaintiff in ejecting him, the conversation was vitally material, and could not justly be considered harmless, in view of the issue of exemplary damages which the court saw fit to submit to the jury. The plaintiff was not entitled (as against the present [150]*150defendant) to prove that motive by a declaration of the conductor after the fact, as the Missouri cases already mentioned show.
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Bakolay, J.
— This is an action to recover damages for personal injuries sustained by plaintiff by reason of his alleged unlawful ejection from defendant’s train.
The defense is that plaintiff was justifiably ejected, and that no unnecessary force was used in putting him off. The defensive allegations were put in issue by plaintiff’s reply. The cause then came to trial in due course.
The jury found for plaintiff in the sum of $7,500, under instructions which need not be closely examined, since the cause should go back for another reason, and the objectionable features of the old instructions can be removed in event of another trial.
It may be well, however, to mention (before leaving the subject of the instructions) that they were framed so as to authorize the jury to award, not merely compensatory damages for plaintiff’s injuries, but also exemplary damages, in the discretion of the jury, if they found that the conductor, and other agents of defendant, acted wantonly and maliciously in ejecting him from the cars.
There was evidence given by plaintiff and defendant, respectively, tending to support their several theories of the case already outlined.
Plaintiff’s testimony was to the effect that he was ejected from the rear platform of the last car of one of defendant’s passenger trains, by the conductor and brakeman, oue dark night, about 10 or 11 o’clock, in September, 1890, without cause, while the train was in motion, and in a dangerous place.
On-the other hand, defendant’s evidence accounted for the rejection by plaintiff’s refusal to pay fare, [147]*147insulting conduct on his part toward fellow passengers, particularly women; negatived all unnecessary force, and any unlawful act by defendant’s agents, and especially denied that he was ejected while the train was in motion.
During plaintiff’s case, one of his witnesses was allowed to testify that he (the witness) was in the smoking car when a stop occurred. After that stop, the witness started back to the rear of the train. He met a man on the way who told him of the fact that plaintiff had been ejected. Witness then entered the last car, from the rear end of which plaintiff had been put off, and his testimony then goes on thus:
“I went right in; I rushed in the car and asked Mr. Howe if he put that man off, and he said he did. I asked him to stop and get him; I told him I was afraid he was hurt, and he just remarked that he ought to have broke his darned neck, or damned neck, I couldn’t say for certain which it was.”
This testimony was objected to as incompetent, irrelevant and calculated to mislead the jury; but the objection was overruled and defendant duly excepted. The court remarked, in making the ruling, “The declarations of Captain Howe are competent.”
' The witness above quoted testified, on his direct examination, that this conversation with the conductor, Mr. Howe, took place about eight or ten feet from the • .front door of the rear passenger car; and that the train “had stopped some time before that.”
On his cross-examination, he further said, on this point, in answer to a question as to the interval of time between the stopping of the train and his start from the smoking car, that, to the best of his knowledge it was eight or ten minutes.
This statement is thought by some of my learned colleagues to have been intended by the witness to [148]*148refer to some other “stop” than that at which plaintiff was put off.
At all events, it is clear that the conversation with the conductor was not later than these eight or ten minutes after the ejectment. It may have been earlier; but it was plainly after the fact; after the conductor had finished the act, and had gone to the other end of the car where he met Mr._ Johnson, the witness.
The whole evidence does not bring that conversation into any other relation to the act of plaintiff’s ejection, than is indicated by the facts giveh above.
The question then is, was the conversation admissible.
The main ground on which plaintiff seeks to justify its admission is that it formed - a part of the res gestae. On that ground my learned brother, Maoearlane, has sustained its admissibility, though, it seems to ine, he apparently experiences some difficulty in reaching that result.
In Missouri it is too well settled by precedents to-admit of doubt that no such conversation could be given in evidence with the force of an admission by 'defendant. Price v. Thornton (1846), 10 Mo. 135; Rogers v. McCune (1854), 19 Mo. 558; McDermott v. Railroad (1881), 73 Mo. 516; Adams v. Railroad (1881), 74 Mo. 553; Aldridge’s Adm’r v. Midland, etc., Co. (1883), 78 Mo. 559; Devlin v. Railroad (1885), 87 Mo. 545.
The conductor was employed to represent the company in the management and control of its train.
The company was answerable for his actions within the fair scope of that employment. But the company was certainly not bound by any declaration of his-motives which did not accompany, or form part of some act or transaction within the apparent line of the service for which he was employed.
But it is needless to again go over the ground [149]*149■which the last group of decisions covers. Under those cases it is plain that, if the conversation between the witness and the conductor in this case has any proper standing as evidence, it can not be as an admission, but must be as a part of that essential, or descriptive, matter belonging to the main transaction itself, which tne law calls res gestee, for want of any English term, equally expressive.
It is far from my present purpose to attempt any sort of definition of res gestee.
Definitions are, no doubt, useful and necessary to impart general conceptions of the subjects with which jurisprudence deals; but they do not "always suffice to solve the difficulties met in the practical administration of law.
In the case at hand, the train men ejected the plaintiff from the train a few minutes, at least, before the conversation in question took place. The former act is the fact with which the conversation must be connected as a circumstance, to bring the conversation properly into the res gestee.
The conversation had two distinct bearings as a piece of evidence. First, it embraced an implied admission that the conductor had put the plaintiff off the train; and, secondly, it indicated motive, that is to say, hostility to plaintiff. Proof of the former, we might overlook as harmless, having no prejudicial effect on defendant’s rights; for both sides admitted that plaintiff was ejected from the train. La Duke v. Township of Exeter (1893), 97 Mich. 450.
But upon the question of the conductor’s motive of hostility to plaintiff in ejecting him, the conversation was vitally material, and could not justly be considered harmless, in view of the issue of exemplary damages which the court saw fit to submit to the jury. The plaintiff was not entitled (as against the present [150]*150defendant) to prove that motive by a declaration of the conductor after the fact, as the Missouri cases already mentioned show.
The interval of time after the main fact is not, of itself, of controlling importance, though entitled to weighty consideration in determining what are res gestae.
The testimony indicates that the conversation of the witness with the conductor had no connection whatever with the scene out of which the alleged cause of action arises.
Nor was the conductor’s statement in any way connectible with that scene as a circumstance of it. It was an entirely independent event, notwithstanding it occurred within a comparatively short time after the act in which plaintiff played a part. But, so far as concerns any relation between the ejection of plaintiff and the conversation, the latter might as well have occurred eight or ten days, as two or three or ten minutes, afterwards.
Mere thoughts or feelings, engendered by a particular occurrence or fact, do not, in my opinion, form of themselves a sufficiently substantial connecting link, between the fact and the subsequent talk of an eyewitness about it, to make that talk a part of the res gestae of the fact. The suggestion to that effect in the learned opinion of my brother Macearlane does not, with due respect, seem to me maintainable, in its application to .the case at bar.
Without attempting to declare any general rule as to what matters constitute res gestee, and confining the ruling to the immediate facts of this case, it would seem to me very clear (were it not for the contrary opinion of some of my associates) that the conductor’s declaration is no part of the res gestee in the case before us.
[151]*151In my opinion the court should have excluded it.
2. Nor can it matter, in the result, that the defendant’s counsel, on cross-examination, asked the witness to repeat his account of the interview with the conductor. That course did not amount to a waiver of the right to urge the exception already saved to the ruling of the court in admitting that interview.
Counsel might properly conform to that ruling for the purposes of the trial, without thereby waiving the right to review the admission of incompetent evidence that had come in, over his objection. After that evidence was before the jury, he might then combat it, or meet it, as best he might, without waiving the exception already taken. Tobin v. Railroad (1891), 18 S. W. Rep. 996; Martin v. Railroad (1886), 103 N. Y. 626.
In my opinion the judgment should be reversed and the cause remanded for the reasons above given. It is so ordered.
Oantt, Sherwood and Burgess, JJ., concur. Black, 0. J., and Brace and Macearlane, JJ., dissent.