bility to exemplary damages. One of the courts, discussing the diverging views on this question, well states the reasons upholding this view in these words: "If corporations,-artificial beings, who can act only through agents and servants,-in their varied and multitudinous and constantly recurring business dealings with the public, can never be held liable in punitive damages for the acts of their servants unless expressly authorized by them, no matter how gross and outrageous the wrongful act of the servant, we feel perfectly safe in declaring that no recovery for more than mere compensatory damages will ever again be awarded against corporations. Corporations never expressly authorize their servants to beat or insult those having business relations with them, and they rarely ratify such conduct. Having, by the constitution of their being, to act solely by agents or servants, they must, as a matter of sound public policy, be held liable for all the acts of their agents and servants who commit wrong while performing the master's business, and in the scope of their employment; and this to the extent of liability for punitive damages in proper cases."49 Another authority says: "We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to railroad corporations in their capacity of common carriers of passengers; and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the corporation to maltreat and insult a passenger, or to cases where such an act is directly or impliedly ratified; for no such cases will ever occur. A corporation is an imaginary being. It has no mind but the mind of its servants; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands; and these minds and hands are its servants'

48 Highland &c. R. Co. v. Robinson, 125 Ala. 483; s. c. 28 South. Rep. 28; St. Louis &c. R. Co. v. Wilson, 70 Ark. 136; s. c. 66 S. W. Rep. 661; Fell v. Northern Pac. R. Co., 44 Fed. Rep. 248; Dinsmoor v. Wolber, 85 Ill. App. 152; Pullman Palace Car Co. v. Reed, 75 Ill. 125; St. Louis &c. R. Co. v. Dalby, 19 Ill. 535; Toledo &c. R. Co. v. Harmon, 47 Ill. 298; Chesapeake &c. R. Co. v. Dodge, (Ky.), 23 Ky. L. Rep. 1959; s. c. 66 S. W. Rep. 606 (no off. rep.); Hawkins v. Riley, 17 B. Mon. (Ky.) 101; Lexington R. Co. v. Cozine, 111 Ky. 799; s. c. 23 Ky. L. Rep. 1137; 64 S. W. Rep. 848; Smith v. Mid

dleton, 112 Ky. 588; s. c. 23 Ky. L. Rep. 2010; 66 S. W. Rep. 388; 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; Philadelphia Traction Co. v. Orbann, 119 Pa. St. 37; s. c. 12 Atl. Rep. 816; 21 W. N. C. (Pa.) 76; Reeves v. Southern R. Co., 68 S. C. 89; s. c. 46 S. E. Rep. 543; Quinn v. South Carolina R. Co., 29 S. C. 381; s. c. 1 L. R. A. 683; 7 S. E. Rep. 614.

49 Pullman Palace Car Co. v. Lawrence, 74 Miss. 782; s. c. 22 South. Rep. 53.

minds and hands. All attempts, therefore, to distinguish between the guilt of the servant and the guilt of the corporation, or the malice of the servant and the malice of the corporation, or the punishment of the servant and the punishment of the corporation, is sheer nonsense, and only tend to confuse the mind and confound the judgment.

**

It is our judgment, therefore, that actions against corporations for the willful and malicious acts of their agents and servants in executing the business of the corporation should not form exceptions to the rule allowing exemplary damages. On the contrary, we think this is the very class of cases, of all others, where it will do the most good, and where it is the most needed."

$7177. Municipal Corporations Not Generally Liable.-It follows, from the nature of municipal corporations, that exemplary damages can rarely be recovered in an action against them for personal injuries. "It is scarcely conceivable that a case could be made against a corporation justifying punitive damages. *** The city is not a spoliator, and should not be visited by vindictive damages. Where aggression and malice are absent, the damages cannot exceed compensation for the injury done; in other words, they cannot be punitive."51 "Vindictive or punitive damages are not to be given unless there is proof that the injury was willful, which is scarcely possible in the case of this class of corporations."52 A different rule, however, is announced in a New Hampshire case, in which it was held that a "town" might be liable in exemplary damages for injuries resulting from a defective bridge, if it had been guilty of gross negligence in failing to repair.53 And in California, in an action for the wrongful death of a child, under the statute of that State permitting the plaintiff to recover exemplary damages in such cases where the circumstances justify them,5* a verdict of $5,000 against the city of San Francisco was sustained.55

$7178. Lessor of a Railroad may be Liable for Acts of Lessee. -On grounds like unto those making a corporation liable in punitive

Goddard v. Grand Trunk R. Co., 57 Me. 202, 223. See also, Hanson V. European &c. R. Co., 62 Me. 84; Chicago &c. R. Co. v. Herring, 57 Ill. 59; Jeffersonville R. Co. v. Rogers, 38 Ind. 116; Baltimore &c. R. Co. v. Blocher, 27 Md. 277; Quigley V. Central Pacific R. Co., 11 Nev. 350.

*Chicago v. Martin, 49 Ill. 246, per Breese, C. J. To the same effect see Chicago v. Langlass, 52 Ill. 256; Chicago v. Jones, 66 Ill. 349; Decatur v. Fisher, 53 Ill. 407; Bennett v.

damages for the willful acts of its servants, it has been held in one case that exemplary damages may be imposed on the lessor of a railroad because of the reckless conduct of servants of the lessee in the management of the train, by reason of which a person received personal injuries.56

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§ 7179. The Rule in Its Application to Carriers Generally.-To justify the award of exemplary damages to a passenger against a carrier, there must have been malice, wantonness, or such gross negligence as to imply willfulness on the part of the carrier.57 Under this view there may be no recovery of exemplary damages because of a failure of a railroad company to furnish a light at its depot at the proper time. So, punitive damages cannot be recovered for failure to transport a passenger because the engine has broken down, or for a failure to maintain a roadbed at its highest efficiency, as these are cases of simple negligence.60 But a recovery of such damages will be sustained where the evidence shows that the train was run at the rate of a mile a minute over a defective track, as this speed shows a reckless disregard of the rights of the passengers.1 Malice toward a passenger who was required by the servants of the carrier to surrender packages which he carried into the car in violation of a rule of the company which it had no right to adopt, cannot be inferred from mere asperities on the part of employés which were provoked by the passenger's own language and attitude.62

§ 7180. Wrongful Ejection of Passenger.-Exemplary damages have been awarded against a railroad company for the wrongful ejection of a passenger where the ejection was actuated by malice or vindictiveness, or was performed in a wanton or cruel manner with intent to inflict injury, insult or humiliation on the passenger.63 Damages

56 Hart v. Railroad Co., 33 S. C. 427; s. c. 12 S. E. Rep. 9; 10 L. R. 1 A. 794.

57 Wigton v. Metropolitan St. R. Co., 38 App. Div. (N. Y.) 207; s. c. 56 N. Y. Supp. 647; Boyd v. Blue Ridge R. Co., 65 S. C. 326; s. c. 43 S. E. Rep. 817; Henderson v. Galveston &c. R. Co. (Tex. Civ. App.), 38 S. W. Rep. 1136 (recovery for humiliation suffered because of failure of carrier to equip cars with water closets).

58 Alabama &c. R. Co. v. Arnold, 84 Ala. 159; s. c. 5 Am. St. Rep. 354; 4 South. Rep. 359.

50 Hansley v. Jamesville &c. R. Co., 117 N. C. 565; s. c. 23 S. E. Rep. 443; 32 L. R. A. 543.

60 International &c. R. Co. v. Brazzil, 78 Tex. 314; s. c. 14 S. W. Rep. 609; 44 Am. & Eng. R. Cas. 437.

61 Griffin v. Southern R. Co., 65 S. C. 122; s. c. 43 S. E. Rep. 445.

62 Bullock v. Delaware &c. R. Co., 61 N. J. L. 550; s. c. 4 Am. Neg. Rep. 419; 11 Am. & Eng. R. Cas. (N. S.) 837; 40 Atl. Rep. 650.

63 Atlanta Consol. St. R. Co. v. Keeny, 99 Ga. 266; s. c. 33 L. R. A. 824; 25 S. E. Rep. 629; 5 Am. & Eng. R. Cas. (N. S.) 305; Head v. Georgia Pac. R. Co., 79 Ga. 358; s. c. 7 S. E. Rep. 217; Southern Kansas R. Co. v. Rice, 38 Kan. 398; s. c. 16 Pac. Rep. 817; Finch v. Northern Pac. R. Co., 47 Minn. 36; s. c. 49 N. W. Rep. 329; St. Clair v. Missouri

64

of this character have been held properly awarded where the passenger was abused and insulted and required to leave the train without being given reasonable time to produce his ticket; where the passenger presented his mileage book to the conductor, who complained that it was not his book and seized him by the collar, jerked him into the aisle and would have ejected him from the train if he had not paid cash fare; where a passenger, given a complicated ticket not easily understood, attempted to use the ticket for travel in the manner he thought the ticket permitted and was ejected by the conductor before reaching his destination under aggravating circumstances and with insult and vilification by the conductor. So, carrying a passenger, who refused to pay his fare, to the next regular station, where he would have no protection from the inclemency of the weather, before ejecting him from the train, notwithstanding his protest and his desire to be ejected at the time of his refusal, when he was near home, may be considered by the jury in determining whether or not exemplary damages should be awarded.67

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7181. Further of Ejection of Passenger-Mistake.-It is essential to liability to exemplary damages for the ejection of a passenger that the railroad employés should have acted with malice. It is not sufficient that they acted under a mistake as to the legal rights of the passenger. So, a passenger ejected from a train through the mistake

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Pac. R. Co., 29 Mo. App. 76; Rose V. Wilmington &c. R. Co., 106 N. C. 168; s. c. 11 S. E. Rep. 526; Tomlin son v. Wilmington &c. R. Co., 107 N. C. 327; s. c. 12 S. E. Rep. 138; Guy v. Pittsburg &c. R. Co., 6 Ohio N. P. 3; Patry v. Chicago &c. R. Co., 77 Wis. 218; s. c. 46 N. W. Rep. 56. In an action for wrongful ejection from a train and assault by the trainmen an instruction that "in actions of this kind, where a wanton and cruel assault is made, exemplary damages may be allowed," is not erroneous, as assuming that an assault was made: Illinois Cent. R. Co. v. Davenport, 177 Ill. 110; s. c. 52 N. E. Rep. 266; aff'g s. c. 75 Ill. App. 579. Plaintiff, accompanied by a lady, paid his street-car fare with a genuine coin, to defendant's conductor, who claimed it was a counterfeit and asked plaintiff to pay with other money. After plaintiff's refusal, and some dispute, the conductor took plaintiff by the collar, and pulled him, saying, "Come along, you've got to leave this car."

Plaintiff and the lady accompanying him went out peaceably. The conductor spoke harshly, and so loudly as to be heard by others in the car when it was in motion. It was held that plaintiff was not ejected from the car under such insulting and cruel circumstances as warranted the trial court's submitting the question of punitive damages to the jury: Vassau v. Madison &c. R. Co., 106 Wis. 301; s. c. 82 N. W. Rep. 152.

"Louisville &c. R. Co. v. Maybin, 66 Miss. 83; s. c. 5 South. Rep. 401. 65 Pittsburg &c. R. Co. v. Ensign, 6 Ohio C. D. 616.

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of the conductor cannot recover exemplary damages where he did not seek to relieve the conductor of his mistake, and seemed less intent upon reaching his destination than upon having a cause of action. against the company. So, a recovery was set aside where the passenger's ticket was refused on account of its presentation after its expiration, and the passenger put forth no effort to obtain money from his fellow passengers to pay his fare, and was peaceably ejected not more than eight miles from his destination, which he reached a few hours later than he would by train and without additional expense.7° And so, punitive damages were held not recoverable by a man who, having paid for a first-class ticket on a train, was removed politely and without unnecessary force to an inferior car in which all men unaccompanied by ladies were compelled to ride.71

§ 7182. Failure to Stop Trains.-The allowance of exemplary damages has been sustained in cases where the employés of a railroad company willfully, recklessly or capriciously refused to stop the train when signalled at a flag station.72 To entitle an intending passenger to these damages, the engineer must have seen him; and it is not sufficient that with reasonable care he could have seen him.73 These damages have been held recoverable of a railroad company for disregard of its statutory duty to stop at a station for a passenger when it has advertised for passengers for the train in question and has room for them of could

in making out a transfer or in informing plaintiff as to the destination of certain cars, where no malice or insult appears, punitive damages cannot be recovered: Carr v. Toledo Traction Co., 10 Ohio C. D. 296; s. c. 19 Ohio C. C. 281. Where plaintiff, a passenger on defendant's train, voluntarily left the train because the conductor refused to accept his ticket, it was error to give an instruction authorizing the jury to award punitive damages, as the conductor was honestly mistaken in supposing that the ticket had expired, and was led into the mistake by the indistinctness of the date stamped on the ticket, and by a warning he had received to look out for an unused ticket of the date that the ticket presented to him appeared to bear: Louisville &c. R. Co. v. Champion (Ky.), 68 S. W. Rep. 143; s. c. 24 Ky. L. Rep. 87. A rule of the defendant company required a transfer ticket to be punched, showing the time of its

issue, and the car and line on which the holder desired to ride. A conductor marked the places on plaintiff's transfer with a pencil, because he had lost his punch, and the conductor on the designated car refused to accept the transfer. Plaintiff testified that the conductor's manner in ejecting him was insulting. It was held that though plaintiff was entitled to compensation for the wrongful ejectment, it was error to award him punitive damages: Vicksburg R. &c. Co. v. Marlett, 78 Miss. 872; s. c. 29 South. Rep. 62.

Georgia &c. R. Co. v. Eskew, 86 Ga. 641; s. c. 12 S. E. Rep. 1061.

TO Louisville &c. R. Co. v. Turner, 100 Tenn. 213; s. c. 47 S. W. Rep. 223; 43 L. R. A. 140.

71 Holmes v. Carolina &c. R. Co., 94 N. C. 318.

72 Wilson v. New Orleans &c. R. Co., 63 Miss. 352; Morse v. Duncan, 8 Am. & Eng. R. Cas. 374.

73 Thomas v. Southern R. Co., 122 N. C. 1005; s. c. 30 S. E. Rep. 343.