7163. Preliminary observations. 7164. Doctrine of exemplary damages qualified by some and wholly repudiated by other courts. 7165. Right of recovery of exemplary damages depends on motive. 7166. Willful and wanton injuryIllustrations. 7167. "Gross negligence." 7168. Further of "gross negligence." 7172. Gross negligence in sale of drug. 7173. Malpractice of physicians. SECTION 7174. Liability in the case of a pri- 7175. Ratification by corporation. 7178. Lessor of a railroad may be 7180. Wrongful ejection of passenger. 7181. Further of ejection of passen- 7182. Failure to stop trains. cars. 7184. Refusal to sell tickets. 7186. Dishonor of railroad tickets. § 7163. Preliminary Observations.-Damages variously characterized as exemplary, punitive, or vindictive damages, or smart money, may be assessed in certain cases. The theory on which these damages are given is simply the theory of punishment and public example. The giving of such damages in any case is admitted to be an anomaly in legal procedure, and the soundness of the doctrine has always been questioned. The principle, as heretofore noted, is unique in that it imports into civil actions a segment of the criminal law, but the doctrine has been accepted as the general rule in England and in most of the States of the United States, and is too well settled now to be shaken. "As the question of intention is always material in an action of tort, and as the circumstances which characterize the transaction 'Ante, § 7152. are, therefore, proper to be weighed by the jury in fixing the compensation of the injured party, it may well be considered whether the doctrine of exemplary damages cannot be reconciled with the idea that compensation alone is the true measure of redress." Whether or not the case is one which justifies exemplary damages is a question for the court to determine in its instructions to the jury.3 §7164. Doctrine of Exemplary Damages Qualified by Some and Wholly Repudiated by Other Courts.-In some jurisdictions, the doctrine of exemplary damages, in form at least, is repudiated, and damages for aggravation are looked upon as compensatory. In the language of one of the courts holding this view: "The true rule as I understand it, is to instruct the jury that if they find that the defendant has been malicious, the rule of damages will be more liberal; that instead of awarding damages only for those matters which are capable of exact pecuniary valuation, they may take into consideration all the circumstances of aggravation-the insults, offended feelings, degradation, etc.-and endeavor according to their best judgment to award such damages by way of compensation or indemnity as the plaintiff on the whole ought to receive and the defendant ought to pay."5 Other courts repudiate the doctrine entirely, and hold that the allowance of any damages in addition to compensation is unauthorized, howsoever designated. Here the view is taken that "it is not the 6 Milwaukee &c. R. Co. v. Arms, 91 U. S. 489. The ingrafting of this notion on to personal suits has resulted in an anomalous rule, the doctrine of punishment being a sort of hybrid between the display of ethical indignation and the imposition of a criminal fine: Haines v. Schultz, 5 N. J. L. 481. Exemplary damages may be recovered, not as a penalty for a public wrong, but in vindication of a private right which has been willfully invaded, and as a warning to others: Oliver v. Columbia &c. R. Co., 65 S. C. 1; s. c. 43 S. E. Rep. 307. Actual damages are such as are incurred when the wrongful act has caused a loss or injury which can be assessed in money, the universal and cardinal principle being that the person injured shall receive compensation commensurate with his loss or injury, and no more: Hutchison v. Summerville, 66 S. C. 442; s. c. 45 S. E. Rep. 8. Murphy v. New York &c. R. Co., 29 Conn. 499; Chicago v. Martin, 49 Ill. 241; Morford v. Woodworth, 7 Ind. 93; Kountz v. Brown, 16 B. Mon. (Ky.) 586; Chiles v. Drake, 3 Metc. (Ky.) 146; Heil v. Glanding, 42 Pa. St. 493; Ware v. St. Paul Water Co., 1 Dill. (U. S.) 405; s. c. 3 Chic. Leg. N. 41. 'Bixby v. Dunlap, 56 N. H. 466; Chiles v. Drake, 3 Metc. (Ky.) 146; s. c. 74 Am. Dec. 406. 5 Bixby v. Dunlap, 56 N. H. 466. Wilson v. Bowen, 64 Mich. 133; Stilson v. Gibbs, 53 Mich. 280; s. c. 18 N. W. Rep. 815; Bank of Commerce v. Goose, 39 Neb. 437; s. c. 23 L. R. A. 190; 58 N. W. Rep. 84; Boldt v. Budwig, 19 Neb. 739; Riewe v. McCormick, 11 Neb. 264; s. c. 9 N W. Rep. 88; Fay v. Parker, 53 N. H. 342; s. c. 16 Am. Rep. 270. See also, Spokane Truck &c. Co. v. Hoefer, 2 Wash. 45; s. c. 25 Pac. Rep. 1072; 11 L. R. A. 689; 26 Am. St. Rep. 842; Murphy v. Hobbs, 7 Colo. 541; s. c. 49 Am. Rep. 366; 5 Pac. Rep. 119; Pueblo v. Timbers, 31 Colo. 215; s. c. 72 Pac. Rep. 1059. province of the jury, after full damages have been found for the plaintiff so that he is fully compensated for the wrong committed by the defendant, to mulct the defendant in an additional sum to be handed over to the plaintiff as a punishment for the wrong he has done the plaintiff." Another court says: "If it is said that these damages are imposed as a punishment, it is a full and sufficient answer to say that the State inflicts punishment, and not individuals." Elsewhere it is held that punitive damages are not recoverable where the defendant has been prosecuted criminally for the matters on which the recovery of such damages is sought." An act in Kentucky permitting recovery of exemplary damages for "death by wrongful act" was held not to be unconstitutional as to those cases of killing where an indictment would lie, as in conflict with the spirit of the Constitution forbidding an offender to be punished twice for the same offense.10 In Connecticut, however, this doctrine is denied; it is there held that such damages cannot "be recovered in an action for an injury which is also punishable by indictment, as libel, and assault and battery."11 § 7165. Right of Recovery of Exemplary Damages Depends on Motive. Liability for punitive damages rests primarily upon wrong motive,1 ,12 and such damages are recoverable only where the injury was wantonly and willfully inflicted,13 or with a reckless indifference to 'Wilson v. Bowen, 64 Mich. 133. See also, McChesney v. Wilson, 132 Mich. 252; s. c. 93 N. W. Rep. 627; 9 Det. Leg. N. 591. Riewe v. McCormick, 11 Neb. 264; s. c. 9 N. W. Rep. 88. 9 ⚫ Patterson v. New Orleans Light &c. Co., 110 La. An. 797; s. c. 34 South. Rep. 782. 10 Chiles v. Drake, 3 Metc. (Ky.) 146. 11 Austin v. Wilson, 4 Conn. 273. 12 Webb v. Gilman, 80 Me. 177; s. c. 6 N. Eng. Rep. 166; 13 Atl. Rep. 688; Fohrmann V. Consolidated Traction Co., 63 N. J. L. 391; s. c. 43 Atl. Rep. 892; Haines v. Schultz, 50 N. J. L. 481; s. c. 14 Atl. Rep. 488; Day v. Holland, 14 Or. 464; s. c. 15 Pac. Rep. 855; Milwaukee &c. R. Co. v. Arms, 91 U. S. 489. 13 Ensley R. Co. v. Chewning, 93 Ala. 24; s. c. 9 South. Rep. 458; Murphy v. New Haven &c. R. Co., 29 Conn. 496; Welch v. Durand, 36 Conn. 182; Ford v. Charles Warner Co., 1 Marv. (Del.) 88; s. c. 37 Atl. Rep. 39; Petit v. Colmary, Del. -; s. c. 55 Atl. Rep. 344; Illinois &c. R. Co. v. Welch, 52 Ill. 184; Kirton v. North Chicago St. R. Co., 91 Ill. App. 554; Cady v. Case, 45 Kan. 733; s. c. 26 Pac. Rep. 448; Leavenworth &c. R. Co. v. Rice, 10 Kan. 426; Jacobs v. Louisville &c. R. Co., 10 Bush (Ky.) 263; Parker v. Jenkins, 3 Bush (Ky.) 587; Hamilton v. Morgan's &c. S. S. Co., 42 La. An. 824; s. c. 8 South. Rep. 586; McFee v. Vicksburg &c. R. Co., 42 La. An. 790; s. c. 7 South. Rep. 720; Hawes v. Knowles, 114 Mass. 518; Jackson v. Schmidt, 14 La. An. 807; Hoffman v. Northern &c. R. Co., 45 Minn. 53; s. c. 47 N. W. Rep. 312; Edelman v. St. Louis Transfer Co., 3 Mo. App. 503; Laird v. Chicago &c. R. Co., 78 Mo. App. 273; Whipple v. Walpole, 10 N. H. 130; Aaron v. Southern R. Co., 68 S. C. 98; s. c. 46 S. E. Rep. 556; Brasington v. South Bound R. Co., 62 S. C. 325; s. c. 40 S. E. Rep. 665; Oliver v. Columbia Nav. &c. Co., 65 S. C. 1; s. c. 43 S. E. Rep. 307; Watts v. South Bound R. Co., 60 S. C. 67; s. c. 38 S. E. Rep. 240; Hull v. Richmond, 2 Woodb. & M. 346; Emblem v. Myers, 6 Hurl. & N. 54; Davis v. Western Union Tel. Co., 46 W. Va. 48; s. c. 32 S. E. Rep. 1026 14 the rights of others. Where the defendant's negligence is simply a want of ordinary care, and where no wantonness is exercised, only compensatory damages should be awarded.15 Mere allegations of vexation, distress and anxiety of mind because of the acts complained of, will not support a recovery of exemplary damages.16 $7166. Willful and Wanton Injury-Illustrations.-What conduct the law will consider equivalent to a willful or wanton act is as hard to define as negligence itself, and, in the nature of things, is so dependent upon the particular circumstances of each case as not be susceptible of general statement. A distinct idea on this subject can be best conveyed by a few illustrations: In a case where the plaintiff was injured by the falling wall of a house which was in the process of being demolished, and the proprietor had constructed a barrier on the sidewalk to prevent people from passing too near the building, but, through an error of judgment, had not made it sufficient for the purpose, and the plaintiff was injured in consequence, it was held not to be a case for punitive damages.17 Such, also, was held to be the law in a case where a brakeman, in the discharge of his duty, was injured by a projecting awning, although the attention of the railroad authorities had been called to its dangerous condition.18 But where the defendant fired a pistol in shooting at a mark, and the ball struck some other object, and glanced and hit the plaintiff, and it was found that the injury was unintentional, but was the result of gross and culpable negligence on the part of the defendant, it was held that the (not shown in action for delay of telegram); Claiborne v. Chesapeake c. R. Co., 46 W. Va. 363; s. c. 33 S. E. Rep. 262. To authorize the recovery of exemplary damages in an action for tort, the petition must show that the injury was wanton, willful or malicious, and it is not sufficient to allege simply such matters as warrant the recovery of actual damages, without characterizing them as wanton, willful or maHicious: Potter v. Stamfli, 2 Kan. App. 788; s. c. 44 Pac. Rep. 46. "Lake Shore &c. R. Co. v. Roseweig, 113 Pa. St. 519; s. c. 4 Cent. Rep. 712; Mack v. South Bound R. Co., 52 S. C. 323; s. c. 29 S. E. Rep. 905; 40 L. R. A. 679; 3 Chic. L. J. Wkly. 272; Brasington v. South Bound R. Co., 62 S. C. 325; s. c. 40 S. E. Rep. 665; Reynolds v. Braithwaite, 131 Pa. St. 416; s. c. 25 W. N. C. (Pa.) 269; 47 Phila. Leg. Int. 426; 20 Pitts. L. J. (N. S.) 361; 18 Atl. Rep. 1110. 15 Columbus &c. R. Co. v. Bridges, 86 Ala. 448; s. C. 5 South. Rep. 864; Richmond &c. R. Co. v. Vance, 93 Ala. 144; s. c. 9 South. Rep. 574; Hayden v. Fair Haven &c. R. Co., 76 Conn. 355; s. c. 56 Atl. Rep. 613; Atchison &c. R. Co. v. McGinnis, 46 Kan. 109; s. c. 26 Pac. Rep. 453; Chicago &c. R. Co. v. O'Connell, 46 Kan. 581; s. c. 26 Pac. Rep. 947; American Nat'l Bank v. Morey, 113 Ky. 857; s. c. 69 S. W. Rep. 759; 24 Ky. L. Rep. 658; Parsons v. Missouri Pac. R. Co., 94 Mo. 286; s. c. 12 West. Rep. 615; 6 S. W. Rep. 464; Harmon v. Western Union Tel. Co., 65 S. C. 490; s. c. 43 S. E. Rep. 959. 16 Harmon v. Callahan (Tex. Civ. App.), 35 S. W. Rep. 705. 17 Jackson v. Richmond, 14 La. An. 806. 18 Illinois &c. R. Co. v. Welch, 52 Ill. 184. See also, Chicago &c. R. Co. v. Wilson, 63 Ill. 167; Rhodes v. Roberts, 1 Stew. (Ala.) 145. court was justified in finding for the plaintiff the expenses of litigation as a part of his damages. 19 Where the conductor of a passenger train, on being told by the station agent that he had checked the plaintiff's baggage, but had not had time to get him a ticket, and that the plaintiff would pay him on the train, told the agent to sell the plaintiff a ticket and he would hold the train, and then wantonly and willfully caused the train to leave, it was held that there was a case for the allowance of exemplary damages.20 In an Illinois case, however, where it was sought to recover punitive damages for an injury consequent upon the failure to keep a bridge in proper and safe repair, the court said: "To constitute willful negligence, the act done, or omitted to be done, must be intended. Mere neglect to keep a bridge in repair cannot, ordinarily, be alleged to be willful." This statement, to say the least, seems to be inaccurate. Whether or not the element of intention on the part of the defendant enters into the question of his liability seems to depend, properly, upon the character of the act or omission. Thus, where the plaintiff was attacked by vicious dogs belonging to the defendant (who knew their dangerous character, and allowed them to run at large), and his clothing was torn and his person injured, and parcels of goods in his possession were destroyed, the damages recovered were not limited to compensation for the personal injuries, the injuries to the clothes, and the value of the property destroyed, but the case was considered one for exemplary damages. 22 It can hardly be imagined that by permitting the dogs to run at large the defendant in this case intended the injury suffered by the plaintiff, any more than the bridge company in the former case intended the injury which resulted to the plaintiff from its failure to repair the bridge. In several of the States it has been held that exemplary damages may be recovered for "death by wrongful act," if the circumstances of the case are such as justify it.23 19 Welch v. Durand, 36 Conn. 182. 20 Gillman v. Florida Cent. &c. R. Co., 53 S. Car. 210; s. c. 31 S. E. Rep. 224. 21 Peoria Bridge Assn. v. Loomis, 20 Ill. 251, per Breese, J. To a similar effect see Wallace v. New York, 2 Hilt. (N. Y.) 452; s. c. 18 How. Pr. (N. Y.) 169. Where defendant had rendered a public wagon bridge unsafe by cutting apertures in the roadway, and had undertaken the responsibility of making the bridge passable for teams in the meantime, an instruction that if defendant had proceeded without regard to public rights, and with such carelessness and recklessness as to imply a disregard of social obligations, by reason of which a person driving over the bridge was injured, exemplary damages might be assessed, was proper: Hamerlynck v. Banfield, 36 Or. 436; s. c. 59 Pac. Rep. 712. 22 Von Fragstein v. Windler, 2 Mo. App. 598. 23 Myers v. San Francisco, 42 Cal. 215; Owen v. Brockschmidt, 54 Mo. 285; Bowler v. Lane, 3 Metc. (Ky.) 313. See ante, § 7080, et seq. |