Bass v. Chicago & Northwestern Railway Co.

42 Wis. 654

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

Lyon, J.

In the case of the Railroad Co. v. Finney, 10 Wis., 388, it was said that, although a principal is liable to the extent of compensatory damages for a malicious injury inflicted upon another by his agent acting within the scope of his employment, yet he is not liable to exemplary or punitory damages, unless he directed the injurious act to be done, or subsequently confirmed it. But if the principal directed the act, or, not directing it, if he subsequently adopted or confirmed it, the rule is recognized that he is liable to pu-nitory damages.^

On the first appeal in the present case (36 Wis., 450), the rule of damages was much discussed, but was not then determined by the court, the judgment going upon another ground. But in the case of Craker v. The Railway Co., id., 657, decided at the ensuing term, the rule stated and recognized in Railroad Co. v. Finney was, after mature consideration, held to be the true rule; and it was sanctioned and followed in this case on the second appeal. 39 Wis., 636. That the rule was thus correctly settled, we entertain no doubt whatever.

If, therefore, the brakeman of the defendant ejected the plaintiff from the car under circumstances which would authorize an assessment of punitory damages were the action against bim, tbe defendant may be held for like damages in this action, if, with notice or knowledge of the cond uct of its brakeman, it adopted or confirmed his acts.

(ATs to what will amount to a ratification or adoption by the principal of the wrongful act of the agent or servant, it was said in Craker v. The Railway Co., that “ responsibility for exemplary damages in cases of ratification will be an admonition for the prompt dismissal of offending officers, as their retention might well be held evidence of ratification.” p. 676. And when this case was here on the second appeal, it was held that, because the testimony tended to prove that the defendant retained the brakeman in its service, and promoted him to a position of greater responsibility, after notice that he had committed the wrongs complained of, it should have been submitted to the jury, under proper instructions, to determine whether there had been a ratification by the defendant of the wrongful acts of its brakeman. 39 Wis., 642. These decisions establish the proposition (and it is probably res adjucli-catco in this case), that if the defendant retained the brakeman in its employment, and especially if it promoted him in its service, with knowledge that he had assaulted the plaintiff and forcibly ejected him from the car under the circumstances stated in the complaint, that is or may be such a ratification or adoption by the defendant of the wrongful act of the brakeman, as will authorize the imposition of punitory damages in this action.

' We are now to inquire whether the facts specially found by' the jury are sufficient to sustain the judgment for punitory damages, and, if so, whether those findings are supported by the evidence. The jury found that there were no vacant seats in the gentlemen’s car; that the plaintiff entered the rear or ladies’ car peaceably, without being forbidden or barred from entering the same by any officer or servant of the railway company; that, while in said car, the brakeman seized the plaintiff, and, without requesting him to leave the car or offering bim a seat elsewhere, forcibly ejected him from the car in a rude and violent manner, and when the train was in motion; 'that there were vacant seats in the ladies’ car; that some officer of the defendant company had knowledge of the facts of the case before this action was commenced, and the company itself received such notice and information on the day the action was commenced; that the company retained the offending brakeman in its service, and promoted him to a higher position, with knowledge that he had assaulted the plaintiff and forcibly ejected him from the car in the manner and under the circumstances alleged in the complaint; and that the defendant ratified such acts of its brakeman. The jury also found that the brakeman used, no more force than was necessary to prevent the plaintiff from occupying the ladies’ car, and that he did not intend to inflict bodily injury upon the plaintiff. i

We think these findings are sufficient to sustain a judgment for punitory as well as compensatory damages against the defendant, within the rule on that subject above stated. The forcible expulsion of the plaintiff in a rude and violent manner, when the train was in motion and without any request to him to leave the car, notwithstanding the brakeman did not intend to injure him, and used no more force than was necessary to get him out of the car, would be sufficient ground for assessing punitory damages against the brakeman, were the action against him; and the retaining of the offending brakeman in its service after notice of the facts is, under the circumstances of the case, an adoption or confirmation of the acts of the brakeman by the defendant, which renders it liable for

Are the findings supported by the evidence? The correctness of the finding that the defendant had notice of the wrongful act of its brakeman, as found by the jury, is challenged by the learned counsel for the defendant. Rut the testimony tends to show that, immediately after the plaintiff was ejected from tbe car, the conductor of tbe train was informed by a passenger of wbat bad occurred — was told that tbe plaintiff, notwithstanding bis crippled condition, bad been kicked out of tbe car like a dog. It was beld on tbe first appeal in tbis action (36 Wis., 463), that, as to passengers on trains, tbe officers in charge of them are to be considered as the corporation itself, and that the corporation is responsible for the acts of such officers in tbe conduct and government of its trains to tbe same extent that the officers would be liable were they tbe owners of tbe railroads. A qualification of tbis doctrine in respect to liability for punitory damages is stated in the Craker case; but it does not affect tbe question under consideration. It requires no affirmative testimony to prove that tbe conductor of a passenger train is tbe officer to whose charge tbe railway company has committed tbe train; and clearly, within the doctrine above stated, immediate notice to tbe conductor in charge of tbe train, that a wrong has been inflicted upon a passenger by one of bis (tbe conductor’s) subordinates, is notice to tbe corporation. Tbis is so, because tbe whole power and authority of the corporation as to passengers on tbe train is vested in the commanding officer of tbe train, and it is quite immaterial whether such officer has or has not power to discharge tbe offending subordinate, or whether he does or does not report bis information to bis superior officer. It is-also quite immaterial whether tbe conductor or bis superior officers did or did not believe tbe information received by him or them. "When tbe defendant, through its conductor, was informed (it matters not by whom) that its brakeman bad committed a great personal outrage upon tbe plaintiff, it retained tbe brakeman in its service at its peril of tbe fact. By thus retaining him, it adopted and confirmed bis act, whatever it was, and assumed tbe liabilities resulting therefrom.

But even were notice to tbe conductor insufficient to charge the defendant with notice, a verified complaint in tbis action, which contains a statement oe tbe wrongs inflicted upon tbe plaintiff, was served within a few days after the canse of ac-tionarose; and certainly that was notice to the defendant of the facts therein stated. Notice at the time or after the action was commenced, may be as effectual to fix the liability of the defendant to punitory damages, as notice before the action was commenced. And, because notice and ratification are not the grounds of the action, or of any claim for special damages, but are merely incidents which may affect the amount of general damages to be recovered, we think it was not necessary to allege the same in the pleadings. In these respects the case is not unlike an action for slander or libel, in which it is always competent for the plaintiff to show the express malice of the defendant in the words or publication complained of, for the purpose of increasing damages; and the weight of authority seems to be, that to this end he may show a repetition of the alleged libel or slander by the defendant, as well after as before the commencement of the action. (Townshend on Libel and Slander, § 395, and cases cited.) And, doubtless, he may make this proof without alleging in his complaint such repetition of the defamatory words. At least, we are aware of no rule of pleading which requires such an allegation.

We conclude, therefore, that there is sufficient testimony to support the finding that the defendant had notice of the wrongful acts of its brakeman before the action was commenced, and that the notice was repeated by the service of the complaint. The remaining special findings of fact require no discussion; for certainly there is testimony in the case tending to prove, and sufficient to support, each of them.

Certain rulings of the court on objections to the admission of testimony are assigned as error. One of these rulings was the admission of the .statements made to the conductor concerning the transaction, soon after the plaintiff was ejected from the car. Another was the admission of a conversation between the brakeman and the plaintiff, immediately after the plaintiff was ejected from tbe car, and while lie was standing on the platform.

If notice of the acts of the brakeman given to the conductor was notice to the defendant company, it necessarily follows that statements of the transaction made to the conductor are admissible in evidence as tending to prove such notice. The conversation between the brakeman and plaintiff occurred almost immediately after the plaintiff’s expulsion from the ear, and under circumstances from which we think it may be fairly inferred that it was a part of the transaction itself — that it pertained to the res gestee. The conversation, however, does not seem to be of much importance in the case.

A single other ruling on the admissibility of testimony is alluded to in the brief of counsel; but the testimony admitted is of little or no consequence in the case, and could not have influenced the jury one way or the other. It is unnecessary further to consider it.

Many exceptions were taken to the charge of the judge, and -to his refusals to give the jury certain instructions, and to submit to them certain specific questions of fact, proposed on behalf of the defendant. To discuss these in detail would be tedious and unprofitable. It is quite sufficient to say that, after careful consideration, we are satisfied that the rulings and instructions are in substantial accord with the views above expressed, and that the questions of fact submitted to the jury covered and included the whole issue, and were sufficiently specific.

It only remains to determine whether the compensatory damages assessed by the jury are excessive. On the first trial of the action, the verdict, under instructions which allowed the jury to assess exemplary damages, was for $4,500. On the second trial, under an instruction which confined the jury to give only compensatory damages, the verdict was for the same sum. On the last trial, the jury assessed the compensatory damages at $2,500, and the exemplary damages at $2,000. In reversing tbe judgment upon tbe second verdict, we did not indicate (as bad been done in some other cases) a sum above wbicb we thought tbe jury ought not to go in their assessment. While, perhaps, we formed no definite opinions on that subject, we were convinced that an award of $4,500 for merely compensatory damages was excessive, under all the circumstances of the case. These damages have now been reduced nearly one-half, and, although the amount is still large, perhaps larger than we should award were it our duty to make the assessment, yet, in view of the previous verdicts, and upon due consideration of all the facts found by the jury, we are not prepared to say that the sum awarded is so dispro-portioned to the injury sustained as to bear marks of passion, prejudice, partiality or corruption on the part of the jury. Because we cannot say this, we cannot disturb the judgment on the ground that the damages are excessive, See Birchard v. Booth, 4 Wis., 67, and cases cited in Vilas & Bryant’s notes (p. 97, new ed.).

Binding no material error in the record, we must afiirm the judgment of the circuit court,

Ryan, C. J.

I have always regretted that this court the rule of punitory damages in actions of tort. In the controversy between Prof. Greenleaf and Mr. Sedgwick, I cannot but think that the former .was right in principle, though the weight of authority may be with the latter. It is difficult on principle to understand why, when the sufferer by a tort has been fully compensated for his suffering, he should recover anything more. And it is equally difficult to understand'why, if the tortfeasor is to be punished by exemplary damages, they should go to the compensated sufferer, and not to the public in whose behalf he is punished. The reasons against punitory damages are peculiarly applicable in this state, since the just and broad rule of compensatory damages sanctioned by this court in Craker v. Railway Co., 36 Wis., adopted 657. But the rule was adopted as long ago as 1854, in McWilliams v. Bragg, 3 Wis., 424, and has been repeatedly affirmed since. It is therefore too late to overturn it by judicial decision. That could well be done now by legislative enactment only."'J

When this case was first here, it was said of the officers of railroad trains: “They act on the peril of the corporation, and their own. -Indeed, as that fictitious entity, the corporation, can act only through natural persons, its officers and servants, and as it of necessity commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and comfort m tran-situ, under conditions of such peril and subordination, we are disposed to hold that the whole power and authority of the corporation, pro Jiao vice, is vested in these officers; and that, as to passengers on board, they are to be considered as the corporation itself; and that the consequent authority and responsibility are not generally to be straitened or impaired by any arrangement between the corporation and the officers; the corporation being responsible for the acts of the officers in the conduct and government of the train, to the passengers traveling by it, as the officers would be for themselves, if they were themselves the owners of the road and train. We consider this rule essential to public convenience and safety, and sanctioned by great weight of authority.” Bass v. Railway Co., 36 Wis., 450.

The rule here suggested would undoubtedly justify punitory damages against a railroad company for the tort of an officer of its train to a passenger, whenever it should be liable for the tort itself, and the nature of the tort would warrant such damages against the officer himself.

But, a few months later, when the rule of damages in such case was more directly involved, the rule suggested in Bass v. Railway Co. was qualified. It was then remarked: “It is said in Railroad Co. v. Finney, that the plaintiff in such a case is not entitled to exemplary damages against the principal for the malicious act of the agent, without proof that the principal expressly authorized or confirmed it. Without now discussing what would or would not be competent or sufficient evidence of such authority or confirmation, we may say that we have, on very mature consideration, concluded that the rule in Railroad Go.v. Finney is the better and safer rule. "We are aware that there is authority, and perhaps the greater weight of authority, for exemplary damages in such cases, without privity of the principal to the malice of the agent, and that reasons of public policy are strongly urged in support of such a rule.But we adhei’e to what is said on that point in Railroad Co. v. Finney. We think that, in justice, there ought to be a difference in the rule of damages against principals for torts actually committed by agents, in cases where the principal is, and in cases where the principal is not, a party to the malice of the agent. In the former class of cases, the damages go upon the malice of the principal: malice common to principal and agent. In the latter class of cases, the recovery is for the act of the principal through the agent, in malice of the agent not shared by the principal; the principal being-responsible for the act, but not for the motive of the agent. In the former class, the malice of the principal is actual; in the latter, it must at most be constructive. And wre are inclined to think that the justice of the rule accords with public policy. Responsibility for compensatory damages will be a sufficient admonition to carrier corporations to select competent and trustworthy officers. And responsibility for. exemplary damages, in cases of ratification, will be an admonition to prompt dismissal of offending officers, as their retention might well be held evidence of ratification. The interest of these corporations and of the public, in such matters, shoxrld be made alike as far as possible. And we hold the rule, as we have stated it, the justest and safest for both.” Craker v. Railway Co., 36 Wis., 657.

So it is seen that, while the court modified the rule of recovery, mainly upon the ground of public policy, though partly out of consideration for railroad companies themselves, it still considered that when the corporation is liable for torts of officers of trains to passengers, not expressly authorized, it would be, stricti juris, liable for punitory as well as compensatory damages. And the rule was modified as an inducement to railroad companies not to uphold torts of their officers, but to absolve themselves from punitory damages by removing the offenders, as a protection to the public against oppression by persons operating passenger trains.

So, in Craker v. Railway Co., where the tortious officer was promptly dismissed, the court sanctioned compensatory damages only. So, in this case, where the tortious officer was retained, the court sanctions punitory damages as well. In the one case, the dismissal of the offending servant was held to be a disavowal of the act, purging it of malice as against the corporation. In the other, the retention of the offending servant is held as an avowal of his act, charging the corporation with his malice. It is difficult to understand how the latter can be wrong, if the former be right. The dismissal operated as condemnation; the retention as justification.

It was argued that the appellant could not sanction the conduct of the brakeman, because it had no knowledge of it. The jury has found that it had, and I think rightly. Aside from the finding, I should be disposed to say so on the evidence. It is true that the corporation proper could have no knowledge of the brakeman’s conduct, because it is an ideal entity, incapable of knowledge. But, in all its functions, it is always represented by officers charged with performance of them. The conductor was promptly notified of the conduct of the brakeman ; and it was his duty promptly to dismiss his inferior, if he had power; or promptly to report him to his own superior having power. Notice to the conductor was notice to the corporation. It appears also that the attorney of the corporation was afterwards charged, or charged himself, with inquiry into the facts. If he were seeking for the facts rather than for the justification of the tort, he seems to have shown somewhat less than a lawyer’s sagacity, by accepting the statement of the tortious brakeman, verified only by a suggestion of his good character by the conductor, whose silent acquiescence in the tort had made him, quoad the appellant, almost as guilty as the brakeman, a quasiparticeps delicti; both apparently interested in suppressing the truth, if the truth was against them. This looks very like indifference to the wrongs of the passenger, and sympathy with the offending officer. Certainly the corporation was put upon inquiry, with ample means of information. And this is equivalent to aetual knowledge, j

The learned counsel of the appellant made an ingenious and subtle argument, to show that ratification of the act of an agent cannot operate to ratify the motive of the agent; that though the principal may adopt the act, he cannot adopt the motive, because motive cannot be ex post facto.

I think it sufficient, in this case, to say that the coi’poration proper is incapable of motive, past or present; that it can intend or execute through its officers only, its motives and acts being always motives and acts of theirs; that, within the rule of Bass v. Railway and Craker v. Railway, the brakeman was pro hac vice the corporation •— his motive, its motive — his act, its act; that its primary liability is for both motive and act; that public policy excuses its liability for the motive, except upon express or implied privity of its superior officers charged with the general control of its trains; that its liability for the offending officer’s motive is suspended, chiefly as an inducement to dismiss him from the employment -which he abused by his act; that its retention of him in his employment, after notice,makes it expressly privy to his motive; that its ratification of his act and motive is properly but a reaffirmance of its own, and only restores it to a liability for the motive, which had been suspended, in favor of public policy, to await its own action to its offending servant upon bis tort.

Courts have bad occasion to say, that pbilosopbical distinctions are often too nice to enter into rules of judicial decision. So I might say of the metaphysical reasoning of the learned counsel, against the possibility of ex 'post facto intent. The difficulty suggested would enter into -all ratification by principals of the acts ‘of agents. The position is certainly unsound in law; if indeed it can be taken as quite sound in metaphysics.

"When an agent does an act ex cdntractu for his principal, he intends to bind his principal. If without the scope of the agent’s authority, the principal is not privy to either the act or the intent. When the principal ratifies the act, his ratification relates back to the time of the act, not upon the theory that the principal shared the intent of the agent at the time of the act, but that he afterwards, by present intent, adopts for his own the past intent of the agent to bind him. And the ratification makes the intent and act of the agent the intent and act of the principal; not from the time of ratification, but at the time of the intent and act of the agent. The principal is then as much a party to the intent and act of the agent, as if they had been his own at the time of them. And his intent ex post facto to bind himself by the act, at the time of the act, is recognized in law. The character of the intent makes no difference in the rule. Either ex contractu or ex delicto, ratification implies want of authority of the agent to act for the principal. Eatification supplies the authority, nunc pro tunc. When an agent is appointed to perform the duties of 'his principal to a third person, and is guilty of tort in the performance of the duty, and the principal afterwards ratifies the tort, he is held, not to have shared the motive of the agent at the time, but to adopt it as his own, by present intent, relating back to the time of the tort. The motive of the tort is part of the tort. And ratification of the act, scienter, is ratification of the motive.

So, in law, an accessary after the fact is held privy to the antecedent crime of the principal. Accessorius sequitur na-tura,m sui principalis. So, in morals, one who knowingly adopts the wrongful act of another, is justly held accountable, im, foro conscientim, for its motive and its shame. And this is specially true when a superior ratifies the act of his inferior. In such a case, though the law may not reach it, morality applies the maxim, respondeat superior. So, even in metaphysics, it might perhaps be said that the mind of one who ratifies, goes back to the time of the act ratified, and thinks mmc pro tunic; is presently sensible of the circumstances as they happened, and of the operation of the actor’s mind upon them at the time; is presently conscious of the actor’s motive; and adopts the motive and the act, mmc, as truly as the actor thought and did, tunic. I speak as one inexpert, conscious of not being versed in mental philosophy, as counsel seems to be. I venture only to suggest the possibility that even metaphysics may recognize something in the nature of ex post facto motive.

Considered in an abstract philosophical view, it seems to me to be as difficult for the principal to do the act, as to intend the act, nunc pro tunc. Indeed, metaphysics, in the view of counsel, would probably exclude all agency, all responsibility upon the rule quod facit per alvum facit per se. But the law, practically, sanctions what abstract theory denies. One may intend and act by another; and ratification of an act may operate as ratification of the motive of the act. The whole argument against ratification of the motive might go as well against ratification of the act. And it seems, indeed, to be but a variation of the argument so elaborately made by counsel, in Craker v. Railway, that a principal cannot be a party to the tort of an agent in the course of his employment, because tbe tort is tbe voluntary act of tbe agent, to wbicb tbe principal is not privy. In sncb a case, metaphysics might excuse tbe principal, but tbe law will not. I do not care, however, to repeat tbe grounds on wbicb tbe court held tbe principal liable for the tort of tbe agent, in tbe discharge of tbe principal’s duty to another. Counsel must take tbe rule as- tbe law of this court, with all its consequences. And one of tbe consequences is tbe liability of railroad comjianies, in proper cases, to exemplary as well as compensatory damages, for torts of servants operating their trains, to passengers traveling on them. Tbe warning to dismiss tortious servants in such cases cannot be made too emphatic. Carrier corporations must fulfill their duty to their passengers; and that cannot well be done by retaining in tbe performance óf tbe duty, servants who abuse their trust by oppressing passengers committed to their care. If railroad companies neglect tbe warning, they must expect tbe consequences.

By the Gov/rtt — -The judgment of tbe circuit court is affirmed.