Ellison, J.
The plaintiff sued for and recovered damages in the trial court for being wrongfully ejected from defendant’s street car. The evidence tended to show that soon after getting onto the car a controversy arose between plaintiff and the conductor as to a transfer ticket. Plaintiff contended it was good for a ride [303]*303and the conductor telling him to pay or he would put him off. Plaintiff, though protesting that it was unjust, paid his fare in money. Whereupon the conductor continued the controversy and applied to plaintiff some grossly offensive remarks, and finally, calling the “gripman” to his assistance, forcibly ejected plaintiff from the car, though still retaining his fare. No report of the matter was made to the company either by the plaintiff, the conductor or the gripman, but on learning of the conductor’s conduct the defendant discharged him, as well as the gripman, from its service. The court gave, over defendant’s objection, the following instruction, permitting plaintiff to recover punitory or exemplary damages, in addition to damages compensatory :
“2. And, if the jury shall find for the plaintiff, they will allow him as his actual damages such sum as will fairly compensate him for his physical injuries, if any, and for his humiliation, if any was suffered, in being ejected from defendant’s car; and, if the agents of defendant, with malice toward plaintiff, and in the manner and under the circumstances set forth in the preceding instruction, ejected plaintiff from said car, then in addition to the actual damages above authorized, if any such were sustained, the jury may allow plaintiff, by way of punishing defendant and making an example of it for others in like cases, such further sum as the jury believe will be effective in that behalf. The whole amount of the verdict of the jury, however, cannot exceed five thousand dollars.”
This action of the court is the chief matter we are asked to review. It is apparent from the testimony that the defendant did not directly, or by any circumstance, ratify the action of its servants. Nor does it appear that they had any knowledge of any such misbehavior of these servants at any other time.
The terms exemplary, vindictive and punitory damages are used interchangeably, but by whichever name we call them they are allowed as smart money, as a [304]*304punishment over and above compensation. The question then immediately arises, for what is the defendant to be punished in this case ? What has it done ? All that can be brought against it is, that it employed the man who did the injury. But that was a lawful and proper thing to do if it did not know (and which is not pretended) of his liability to commit such a wrong. It has not rendered itself accessory after the fact, for upon learning of the affair it discharged the wrongdoer, thereby refusing to adopt or ratify his act. To uphold the instruction, then, we would be compelled to say that one may be punished for a wrong he did not commit ; for a wrong he did not wish to be committed, and which he denounced when he learned of its commission. This would be contrary to law and fundamental right. In determining what sum should be allowed as exemplary damages, the turpitude of the defendant’s conduct alone is to be considered, not to appreciate the injury or distress of the sufferer, in the particular instance, but contemplating, in behalf of the public, the act as exemplifying the wrongdoer’s vicious mind. 1 Sutherland, Damages, 723. It is a question of action, or at least acquiescence, on the part of him sought to be held responsible. Punishment should never be inflicted upon one, as a punishment, who has committed a wrong by implication only. Such damages are everywhere said to have for one of their principal objects an example and warning to others that they may not commit the same wrong ; and such is the instruction complained of, but of what profit is the example of warning, if a party may be punished who does not do the wrong and could not prevent it % The example should be made of those who do the wrong. So they are allowed for the purpose of deterring a repetition of the wrong by the same person ; but how can one be deterred from doing that which he cannot by any human foresight prevent \ The theory upon which such damages are allowed is that the party sought to be punished has voluntarily committed a [305]*305wrong which he might have abstained from committing. That he’ has done that which by an exercise of his will he could have avoided. The only possible answer to these suggestions is that the act of the servant is the act of the master. But the act of the servant is the act of the master only in theory or by implication of law which makes the master liable to render full compensation for such act; and when we go beyond this and ask to inflict punishment, we enter the domain of personal responsibility which must be founded on the act of the wrongdoer in fact, and the punishment inflicted on the perpetrator alone.
Plaintiff has, of course, a right to compensatory damages, for however innocent and blameless defendant may in fact be, it must nevertheless stand for the act of the conductor in so far as to compensate plaintiff for all legal injury received. In this respect the conductor is, pro Tiae vice, the corporation. And when we consider the extent to which the courts may go, under our adjudications, by way of compensating the injured party, it will be seen that we are not fixing the limits any too narrow in the views to which we have given expression.
It is, however, contended that controlling decisions of the supreme court uphold the instruction of the trial court. It is undoubtedly the rule that in actions of tort, where the wrong complained of has been wilfully, maliciously or wantonly committed, exemplary damages may be allowed. This rule has been frequently stated. But the rule has its exceptions or qualifications. One of these is that the master will not be held liable for exemplary damages for the wrong of his servant if he neither authorized it before commission, or ratified it after commission. Slight acts of ratification it is true will be held to be sufficient, but there must be either prior authorization or subsequent ratification. Some confusion has unnecessarily resulted from the fact that the courts have, in cases where the facts upon which [306]*306the exception is based did not appear, merely stated the rule without the exception.. But in no case which I have been able to discover in the decisions of this state has the exception been rejected where it appeared among the facts disclosed in the evidence. The exception to the rule is stated and recognized in Perkins v. Railroad, 55 Mo. 201; Graham v. Railroad, 66 Mo. 536, and Randolph v. Railroad, 18 Mo. App. 609. But it is insisted that whatever recognition was given to the exception, as stated in these cases, was practically disavowed in the case of Hicks v. Railroad, 68 Mo. 329. In that case the rule is stated and no mention made of the exception, and no point seems to have been urged in that regard by counsel. "We have no means of knowing what the evidence was, but in view of the fact that the experienced counsel appear not to have brought the exception to the rule to the attention of the court, and when we consider that the judge delivering the opinion in that case is the same who wrote the opinion in Graham v. Railroad, supra, where he expressly recognized the exception, we are led to the conclusion that the evidence was such, as to exclude the exception.
Free access — add to your briefcase to read the full text and ask questions with AI
Ellison, J.
The plaintiff sued for and recovered damages in the trial court for being wrongfully ejected from defendant’s street car. The evidence tended to show that soon after getting onto the car a controversy arose between plaintiff and the conductor as to a transfer ticket. Plaintiff contended it was good for a ride [303]*303and the conductor telling him to pay or he would put him off. Plaintiff, though protesting that it was unjust, paid his fare in money. Whereupon the conductor continued the controversy and applied to plaintiff some grossly offensive remarks, and finally, calling the “gripman” to his assistance, forcibly ejected plaintiff from the car, though still retaining his fare. No report of the matter was made to the company either by the plaintiff, the conductor or the gripman, but on learning of the conductor’s conduct the defendant discharged him, as well as the gripman, from its service. The court gave, over defendant’s objection, the following instruction, permitting plaintiff to recover punitory or exemplary damages, in addition to damages compensatory :
“2. And, if the jury shall find for the plaintiff, they will allow him as his actual damages such sum as will fairly compensate him for his physical injuries, if any, and for his humiliation, if any was suffered, in being ejected from defendant’s car; and, if the agents of defendant, with malice toward plaintiff, and in the manner and under the circumstances set forth in the preceding instruction, ejected plaintiff from said car, then in addition to the actual damages above authorized, if any such were sustained, the jury may allow plaintiff, by way of punishing defendant and making an example of it for others in like cases, such further sum as the jury believe will be effective in that behalf. The whole amount of the verdict of the jury, however, cannot exceed five thousand dollars.”
This action of the court is the chief matter we are asked to review. It is apparent from the testimony that the defendant did not directly, or by any circumstance, ratify the action of its servants. Nor does it appear that they had any knowledge of any such misbehavior of these servants at any other time.
The terms exemplary, vindictive and punitory damages are used interchangeably, but by whichever name we call them they are allowed as smart money, as a [304]*304punishment over and above compensation. The question then immediately arises, for what is the defendant to be punished in this case ? What has it done ? All that can be brought against it is, that it employed the man who did the injury. But that was a lawful and proper thing to do if it did not know (and which is not pretended) of his liability to commit such a wrong. It has not rendered itself accessory after the fact, for upon learning of the affair it discharged the wrongdoer, thereby refusing to adopt or ratify his act. To uphold the instruction, then, we would be compelled to say that one may be punished for a wrong he did not commit ; for a wrong he did not wish to be committed, and which he denounced when he learned of its commission. This would be contrary to law and fundamental right. In determining what sum should be allowed as exemplary damages, the turpitude of the defendant’s conduct alone is to be considered, not to appreciate the injury or distress of the sufferer, in the particular instance, but contemplating, in behalf of the public, the act as exemplifying the wrongdoer’s vicious mind. 1 Sutherland, Damages, 723. It is a question of action, or at least acquiescence, on the part of him sought to be held responsible. Punishment should never be inflicted upon one, as a punishment, who has committed a wrong by implication only. Such damages are everywhere said to have for one of their principal objects an example and warning to others that they may not commit the same wrong ; and such is the instruction complained of, but of what profit is the example of warning, if a party may be punished who does not do the wrong and could not prevent it % The example should be made of those who do the wrong. So they are allowed for the purpose of deterring a repetition of the wrong by the same person ; but how can one be deterred from doing that which he cannot by any human foresight prevent \ The theory upon which such damages are allowed is that the party sought to be punished has voluntarily committed a [305]*305wrong which he might have abstained from committing. That he’ has done that which by an exercise of his will he could have avoided. The only possible answer to these suggestions is that the act of the servant is the act of the master. But the act of the servant is the act of the master only in theory or by implication of law which makes the master liable to render full compensation for such act; and when we go beyond this and ask to inflict punishment, we enter the domain of personal responsibility which must be founded on the act of the wrongdoer in fact, and the punishment inflicted on the perpetrator alone.
Plaintiff has, of course, a right to compensatory damages, for however innocent and blameless defendant may in fact be, it must nevertheless stand for the act of the conductor in so far as to compensate plaintiff for all legal injury received. In this respect the conductor is, pro Tiae vice, the corporation. And when we consider the extent to which the courts may go, under our adjudications, by way of compensating the injured party, it will be seen that we are not fixing the limits any too narrow in the views to which we have given expression.
It is, however, contended that controlling decisions of the supreme court uphold the instruction of the trial court. It is undoubtedly the rule that in actions of tort, where the wrong complained of has been wilfully, maliciously or wantonly committed, exemplary damages may be allowed. This rule has been frequently stated. But the rule has its exceptions or qualifications. One of these is that the master will not be held liable for exemplary damages for the wrong of his servant if he neither authorized it before commission, or ratified it after commission. Slight acts of ratification it is true will be held to be sufficient, but there must be either prior authorization or subsequent ratification. Some confusion has unnecessarily resulted from the fact that the courts have, in cases where the facts upon which [306]*306the exception is based did not appear, merely stated the rule without the exception.. But in no case which I have been able to discover in the decisions of this state has the exception been rejected where it appeared among the facts disclosed in the evidence. The exception to the rule is stated and recognized in Perkins v. Railroad, 55 Mo. 201; Graham v. Railroad, 66 Mo. 536, and Randolph v. Railroad, 18 Mo. App. 609. But it is insisted that whatever recognition was given to the exception, as stated in these cases, was practically disavowed in the case of Hicks v. Railroad, 68 Mo. 329. In that case the rule is stated and no mention made of the exception, and no point seems to have been urged in that regard by counsel. "We have no means of knowing what the evidence was, but in view of the fact that the experienced counsel appear not to have brought the exception to the rule to the attention of the court, and when we consider that the judge delivering the opinion in that case is the same who wrote the opinion in Graham v. Railroad, supra, where he expressly recognized the exception, we are led to the conclusion that the evidence was such, as to exclude the exception. Certainly the court did not intend to disavow law it had but recently before announced, without even referring to the cases. And certainly, if the evidence had justified it, the experienced counsel in that case would not have refrained from calling to his aid an exception to a rule of law which he must have known had before been recognized.
It is not to be denied that the authorities in the country generally are not uniform, but it arises from the fact, as I conceive, that all those who have held that the master, in addition to making compensation, may be punished for the act of his servant, which he did not authorize or ratify, have failed to note the reason upon which, and for which, such damages are allowed. The reason and the only reason why such damages are allowed, as before intimated, is that their infliction will deter the [307]*307defendant from repeating the same act, and will be an example and warning to others not to commit the same wrong. Indeed, the object' and end of all punishment is not an atonement or expiation .for the wrong or crime committed, but it is a precaution against future offenses of the same kind. All human punishment says 2 Blackstone ( 3 book, 252) should tend to the amendment of the offender himself, or to deprive him of the power to do future mischief, or to deter others by his example. Now when one is confronted with this only foundation supporting the rule for such damages, he can come to but one conclusion as to whom the rule applies. There is hardly any need of argument or illustration. The matter is self-evident.
So strongly logical is this position that it cannot be combated without betraying an admission of its truth. Thus in Goddard v. Railroad, 57 Maine, 202, the judge writing the opinion says, by way of enforcing his argument, that the corporation ‘ ‘ can secure conductors and brakemen who will not assault and insult passengers. When it is thoroughly understood that it is not profitable to employ careless and indifferent agents or reckless and inslvent servants, better men will take their places, and not before. * * * It will be an impressive lesson to these defendants, and to the managers of other lines of public travel, of the risk they incur when they retain in their service servants known to be reckless, ill-mannered and unfit for their places.” That is, of course, the corporation must be an agent in the matter in failing to do that which by prudence and care it could have done. I take it to be a matter of course, that if the master is not careful and prudent in the selection of his servants, he has committed a wrong upon which a foundation may be laid for punishing him. But if the master has exhausted every reasonable endeavor to secure good servants, and is deceived in a way of which no business foresight could have given warning and discharges such servant as soon as he learns of his wrong, is the master [308]*308nevertheless to be punished for the wrong % This is not all; suppose the master, by prudence and care, does in fact select a good servant, one without a single bad trait of temper, disposition or character ; one who has a wide reputation for these characteristics, and yet, of a sudden, by one of those changes or freaks in the human makeup he commits a gross wrong, and the master disowns the act and discharges him : is such master to be held liable to the injured party not only for his loss of property, his pain of body and mind, his indignity and humiliation by way of compensatory damages, but in addition to this a further sum is to be added to punish him for what he did not do ? The matter can, perhaps, be brought closer to the perception if we leave out of view the corporation and consider the question as it will apply to the great variety of individuals who prosecute various business interests through the aid of servants. In such case the injustice of inflicting punishment for a wrong one does not commit, authorize or ratify can be more easily appreciated.
In support of the position which we have taken, I cite from among the array of authorities collected by counsel, the following: Craker v. Railroad, 36 Wis. 657; The Amiable Nancy, 3 Wheat. 546; Cleyhorn v. Railroad, 56 N. Y. 44; Sullivan v. Railroad, 12 Ore. 392; Hagan v. Railroad, 3 R. I. 88. For the error in giving the instruction complained of the judgment will be reversed and the cause remanded. Smith, P. J., concurs in a separate opinion ; Gill, J., dissents.