$7167. "Gross Negligence."--Willful and wanton conduct justifying the award of exemplary damages may occur where the conduct is so gross as to raise the presumption of a conscious indifference to consequences, or a wanton disregard of the rights of others.25 Such conduct was held to have been displayed in a case where a motor car was propelled through a narrow city street at a rate of from twelve to twenty miles an hour without sounding the gong, and it was shown that the motorman was looking back and not ahead;20 where an inexperienced child was put to work with dangerous machinery without being warned of the danger,27 and where the evidence showed that cross ties under the track at the point where a train was derailed by a broken rail were unsound, decayed and rotten, and that the rail which broke and caused the accident was old, and the company repaired the old track with old rails.28 It is only where this reckless disregard of the rights of others and conscious indifference to consequences are shown that it properly can be said that exemplary damages are recoverable. Such conduct will justify the recovery of exemplary damages only where it contributed to the injury.29 The confusion resulting from the use in such cases of the term "gross negligence," which is a purely relative term, has already been pointed out.30

Alabama &c. R. Co. v. Arnold, 30 Ala, 600; St. Louis &c. R. Co. v. Hall, 53 Ark. 7; s. c. 42 Am. & Eng. R. Cas. 208; 13 S. W. Rep. 138; Yerian v. Linkletter, 80 Cal. 135; 8. c. 22 Pac. Rep. 70; Florida Cent. &c. R. Co. v. Mooney, 40 Fla. 17; &. c. 24 South. Rep. 148; Florida Southern R. Co. v. Hirst, 30 Fla. 1; &c. 11 South. Rep. 506; 16 L. R. A. 631; Chattanooga &c. R. Co. v. Liddell, 85 Ga. 482; s. c. 11 S. E. Rep. 853: 8 Rail. & Corp. L. J. 296; East Tennessee &c. R. Co. v. Lee, 90 Tenn. 570; s. c. 18 S. W. Rep. 268; Missouri Pac. R. Co. v. Shuford, 72 Tex. 165; s. c. 10 S. W. Rep. 408; Wood v. American Nat'l Bank, 100 Va. 306; s. c. 40 S. E. Rep. 931; 4 Va. Sup. Ct. Rep. 133; Milwaukee &c. R. Co. v. Arms, 91 U. S. 489; s. c. 23 L. ed. 374.

* Patterson v. South &c. R. Co. (Ala.), 7 South. Rep. 437; Illinois e. R. Co. v. Stewart (Ky.), 23 Ky. L. Rep. 637; s. c. 63 S. W. Rep. 596; Louisville &c. R. Co. v. Mitchell,.87 Ky. 327; s. c. 8 S. W. Rep. 706; Louisville &c. R. Co. v. Hall, 115 Ky.

567; s. c. 74 S. W. Rep. 280; 24 Ky. L. Rep. 2487; Louisville &c. R. Co. v. Simpson, 111 Ky. 754; s. c. 23 Ky. L. Rep. 1044; 64 S. W. Rep. 733; Brasington v. South Bound R. Co., 62 S. C. 325; s. c. 40 S. E. Rep. 665; Gulf &c. R. Co. v. Compton, 75 Tex. 667; s. c. 13 S. W. Rep. 667. It was proper to give an instruction authorizing the jury to award punitive damages if the negligence was gross, there being an instruction properly defining "gross negligence": Felton v. Holbrook (Ky.), 56 S. W. Rep. 506.

2 Louisville R. Co. v. Teekin, Ky.; s. c. 78 S. W. Rep. 470; 25 Ky. L. Rep. 1692.

American Lead Pencil Co. v. Davis, 108 Tenn. 251; s. c. 66 S. W. Rep. 1129.

28 Alabama &c. R. Co. v. Hill, 90 Ala. 71; s. c. 8 South. Rep. 90; 9 L. R. A. 442; 31 Cent. L. J. 376; 44 Am. & Eng. R. Cas. 441.

29 Missouri &c. R. Co. v. Johnson, 72 Tex. 95; s. c. 10 S. Ŵ. Rep. 325. 30 See Vol. I, § 18, et seq.

§ 7168. Further of "Gross Negligence."-In Illinois, it is held that a corporation cannot be made liable in exemplary damages for an injury resulting from the gross negligence of an employé; as said in one case : "A private corporation cannot be liable to punitive damages, merely for gross negligence of its servants. If the company employs incompetent, drunken, or reckless servants, knowing them to be such, or, having employed them without such knowledge, retains them after learning the fact, or after full opportunity to learn it, the company would no doubt be liable. Or if its servants, whilst in the employment of the company, and engaged in carrying on the business of the company, should willfully or wantonly produce injury to others, then the company would no doubt be liable to such damages. With its servants a mere omission of duty, although grossly negligent, should not be sufficient; but some intention to inflict the injury, or a reckless, wanton disregard for the safety of others, should appear to warrant punitive damages."31

§ 7169. Award and Amount of Exemplary Damages within the Discretion of the Jury.-Whether exemplary damages are to be allowed in a case where they are proper is within the discretion of the jury, and this discretion should not be controlled or directed by instructions to the jury that it is their "duty" to assess such damages, or that they "should" assess such damages. 32 This discretion extends to the amount of the damages,33 and the amount so allowed will not be disturbed on appeal if not so grossly excessive as to indicate prejudice, partiality, or corruption.3

34

§ 7170. Exemplary Damages Proper Only where Actual Damages have been Suffered.-Exemplary damages are never more than instances of some cause of action for real and substantial damages suffered by the complaining party, and when given at all are given only in addition to the real and actual damages suffered by him. It is not

31 Illinois &c. R. Co. v. Hammer, 72 Ill. 353, per Walker, C. J.

*Salem 'v. Webster, 192 Ill. 369; s. c. 61 N. E. Rep. 323; aff'g s. c. 95 Ill. App. 120; Kentucky &c. R. Co. v. Gastineau, 83 Ky. 119; Louisville &c. R. Co. v. Brooks, 83 Ky. 129. The use of the word "may" in a charge in an action for personal injuries, in speaking of the jury's right to award punitive damages under the circumstances therein mentioned, obviates the objection that the instruction indicated that

punitive damages under the circumstances enumerated were a matter of right, and not of, the discretion of the jury: Wade v. Columbia Electric St. R. Co., 51 S. C. 296; s. c. 29 S. E. Rep. 233; 64 Am. St. Rep. 676.

33 Parsons v. Missouri Pac. R. Co.. 94 Mo. 286; s. c. 12 West. Rep. 615; 6 S. W. Rep. 464; Yazoo &c. R. Co. v. Mitchell, 83 Miss. 179; s. c. 35 South. Rep. 339.

44.

34 Lally v. Cantwell, 40 Mo. App.

the

purpose of the doctrine to give a right of action solely for exemplary damages. However, in Alabama, it has long been settled that the infliction of actual damages is not an essential predicate to the imposition of exemplary damages, and there such damages are allowed although the actual injury suffered is purely nominal.

36

$7171. Financial Condition of Defendant. The financial standing of the defendant may be taken into account by the jury in fixing the amount to be awarded as exemplary damages, and evidence to show his wealth is relevant on the theory that the object of exemplary damages is that of punishment for a wanton and willful act, which purpose would be defeated by a disproportionate verdict; for example, an amount clearly excessive in the case of a poor man, might not be regarded as punishment at all by a man of great wealth.37 Evidence on this subject may be introduced by either party, and the defendant is not to be denied the right to make a showing of his poverty by the fact that the subject has not been gone into by the plaintiff.3

38

$7172. Gross Negligence in Sale of Drug.-It has been held with great propriety in Kentucky, where exemplary damages are allowed for gross negligence, that the act of a drug clerk in selling morphine for calomel, and placing it in a box labeled "Calomel, one-quarter

*Paterson v. Dakin, 31 Fed. Rep. 682; Dickinson v. Atkins, 100 Ill. App. 401; Martin v. Leslie, 93 Ill. App. 44; Adams v. Salina, 58 Kan. 246; s. c. 48 Pac. Rep. 918; Schippel V. Norton, 39 Kan. 567; s. c. 16 Pac. Rep. 804; Stonestreet v. Crandell, 10 Kan. App. 575; s. c. 62 Pac. Rep. 249; Western Union Tel. Co. v. Cross, 116 Ky. 5; s. c. 74 S. W. Rep. 1098; 25 Ky. L. Rep. 268; Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335; s. c. 70 S. W. Rep. 878; 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; Lacy v Gentry (Tex. Civ. App.), 56 S. W. Rep. 949; Malin v. McCutcheon, Tex. Civ. App. —; . c. 76 S. W. Rep. 586.

*Alabama &c. R. Co. v. Sellars, Ala. 9; s. c. 10 Ry. & Corp. L. J. 224; 9 South. Rep. 375; Parker v. Mise, 27 Ala. 480; Telegraph Co. v. Henderson, 89 Ala. 510; s. c. 7 South. Rep. 419; Railroad Co. v. Heddleston, 82 Ala. 218; s. c. 3 South. Rep.

こう

Barkly v. Copeland, 74 Cal. 1;

s. c. 15 Pac. Rep. 307; 5 Am. St. Rep. 413; Greenberg V. Western Turf Assn., 140 Cal. 357; s. c. 73 Pac. Rep. 1050; Brown v. Evans, 17 Fed. Rep. 912; Mullin v. Spangenberg, 112 Ill. 140; Farman v. Lauman, 73 Ind. 568; McCarthy v. Miskeon, 22 Minn. 90; Belknap v. Boston &c. R. Co., 49 N. H. 358; Matheis v. Mazet, 164 Pa. St. 580; s. c. 30 Atl. Rep. 434 (not improper for the court to say that there is a very great difference in a penalty as between a rich man and a poor man); Cumberland Telephone &c. Co. v. Shaw, 102 Tenn. 313; s. c. 52 S. W. Rep. 163; Harman v. Cundiff, 82 Va. 239; Gilman v. Brown, 115 Wis. 1; s. c. 91 N. W. Rep. 227; Cosgriff v. Miller, 10 Wyo. 190; s. c. 68 Pac. Rep. 206; Courvoisier v. Raymond, 23 Colo. 113; s. c. 47 Pac. Rep. 284; Cumberland Teleg. &c. Co. v. Poston, 94 Tenn. 696; s. c. 30 S. W. Rep. 1040.

38 Johnson v. Smith, 64 Me. 535.

grain," was evidence of gross negligence, entitling the plaintiff to an instruction defining that degree of negligence, and telling the jury, if they believed such negligence existed, they might award punitive damages against the employer for a death caused thereby.39

§ 7173. Malpractice of Physicians.—Exemplary damages in addition to compensatory damages are recoverable against physicians where the injuries suffered by a patient are due to willful misconduct in the treatment administered. If, however, there is no evidence from which malice on the part of the physician can be presumed, punitive damages should not be awarded.41

40

§ 7174. Liability in the Case of a Private Corporation or Employer for Negligence of Agents or Servants.-There is no dissent to the proposition that the employer, whether a corporation or an individual, is liable in exemplary damages for injuries willfully, maliciously or recklessly inflicted by his servant or agent.42 Discord only appears where an attempt is made to apply this principle. Authority of the highest character makes this liability depend on the questión whether the wanton and willful act has been committed at the direction of the employer or subsequently ratified and adopted by him.**

42 Highland Ave. &c. R. Co. v. Robinson, 125 Ala. 483; s. c. 28 South. Rep. 28; Louisville &c. R. Co. v. Whitman, 79 Ala. 328; Dinsmoor v. Wolber, 85 Ill. App. 152; Louisville &c. R. Co. v. Kelly, 100 Ky. 421; Lake Shore &c. R. Co. v. Prentice, 147 U. S. 101.

43 Ristine v. Blocker, 15 Colo. App. 254; s. c. 61 Pac. Rep. 486; McGehee v. McCarley, 91 Fed. Rep. 462; Palo Alto v. Pacific Postal Tel. Cable Co., 103 Fed. Rep. 841; Rouse v. Metropolitan St. R. Co., 41 Mo. App. 298; Kastner v. Long Island R. Co., 76 App. Div. (N. Y.) 323; s. c. 12 N. Y. Ann. Cas. 77; 78 N. Y. Supp. 469; Bingham v. Lipman, 40 Or. 363; s. c. 67 Pac. Rep. 98; Houston &c. R. Co. v. Cowser, 57 Tex.

293; International &c. R. Co. v. Garcia, 70 Tex. 207; s. c. 7 S. W. Rep. 802; International &c. R. Co. v. MeDonald, 75 Tex. 41; s. c. 42 Am. & Eng. R. Cas. 211; s. c. 12 S. W. Rep. 860; Gary v. Wells &c. Co. (Tex. Civ. App.), 40 S. W. Rep. 845; Downey v. Chesapeake &c. R. Co., 28 W. Va. 732; Ricketts v. Chesapeake &c. R. Co., 33 W. Va. 433; s. c. 41 Am. & Eng. R. Cas. 42; 10 S. E. Rep. 901: 7 L. R. A. 354; Rueping v. Chicago &c. R. Co., 116 Wis. 625; s. c. 93 N. W. Rep. 843; Vassau v. Madison &c. R. Co., 106 Wis. 301; s. c. 82 N. W. Rep. 152; Lake Shore &c. R. Co. v. Prentice, 147 U. S. 101. Exemplary damages cannot be recovered against a carrier for the malicious act of the conductor of a train to the injury of a passeneger, which has not been ratified or adopted, if there was no carelessness in the selection of employés, or in the establishment of regulations, or, in short, if the carrier or its officers by whom it is controlled, have not been guilty of any malice, gross negligence or oppression: Dillingham v. Anthony, 73 Tex. 47; s. c. 3 L. R. A. 634; 11 S. W. Rep. 139.

The reasons sustaining this view have been thus stated: "In cases. where punitive or exemplary damages have been assessed, it has been done upon evidence of such willfulness, recklessness or wickedness,. on the part of the party at fault, as amounted to criminality, which, for the good of society and warning to the individual, ought to be punished. If in such cases or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages as will operate as punishment and teach the lesson of caution to prevent a repetition of criminality, yet we do not see how such damages. can be allowed where the principal is prosecuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of his agent's act. No man should be punished for that of which he is not guilty."

§7175. Ratification by Corporation.-Ratification may be shown within this rule by the retention of the servant in his employment by the master after knowledge of the particular misconduct complained of. So, a sleeping car company has been held to have ratified a wanton and willful assault made by a porter upon a passenger, where the company attempted to prove upon the trial that the acts of the porter were not improper, by making an unwarranted and violent attack upon the character of the injured person with knowledge derived from the conductor's report of the facts of the case. And so, 4 person injured by contact with a telegraph wire negligently allowed to touch electric-light wires has been held entitled to exemplary damages if the employés of the company acted in a spirit of mischief or criminal indifference in producing the condition and it was known to the company's managers, or if the managers did not exercise proper care in selecting the employés, or if they knew or had means of know-ing that they were not skillful, prudent or careful.47

$7176. Further of Ratification.-But the rule that is in accord with reason and the weight of authority makes a direct authorization or express ratification of the servant's wanton act within the general scope of his employment unnecessary to charge the employer with lia

"Hagan v. Providence &c. R. Co., for exemplary damages: Dillingham 3 R. I. 88. v. Anthony, 73 Tex. 47; s. c. 3 L. R. A. 634; 11 S. W. Rep. 139.

"Tanger v. Southwest Missouri Elec. R. Co., 85 Mo. App. 28. The mere retention of the conductor in the same position after knowledge of his misconduct does not operate as a ratification of his willful and malicious act in insulting a passenger so as to make the carrier liable

46 Pullman Palace Car Co. v. Lawrence, 74 Miss. 782; s. c. 15 Nat. Corp. Rep. 124; 22 South. Rep. 53; 1 Miss. Dec. (No. 5) 4; 8 Am. & Eng. R. Cas. (N. S.) 59.

Henning v. Western Union Tel. Co., 41 Fed. Rep. 864.