
    Tracy v. The Athens & Pomeroy Coal & Land Co.
    
      Mines and mining — Wilfully driving entries under, and removing coal from, another’s land — Refusal to direct ver- ■ diet not prejudicial where no recovery awarded — Charge to jury — Knowledge and acts of mine superintendent imputed to employer — Wilfully, intentionally and wrongfully taking coal — Measure of damages — Exemplary or punitive damages for agent’s acts.
    
    (No. 19654
    Decided June 15, 1926.)
    Error to the Court of Appeals of Meigs county.
    This is a proceeding in error to reverse the Court of Appeals of Meigs county. The original action was one for damages for wrongful taking of coal. The amended petition contains two causes of action.
    
      In the first cause of action it is averred:
    “At some time or times between the 1st day of January, 1920, and the 7th day of December, 1920, the exact date or dates being unknown to this plaintiff, the Athens & Pomeroy Coal & Land Company, defendant, willfully, knowingly, wrongfully, and unlawfully mined, took, and carried away large quantities of plaintiff’s coal, amounting in all to about 2,500 tons, from the premises hereinabove described, to the damage of the plaintiff in the sum of $10,000.”
    Por a second cause of action plaintiff complains that the defendant willfully broke and entered the premises by driving entries and rooms in the coal thereunder, and by removing coal therefrom, and that the entries and rooms were so driven as to render unminable a large amount of coal, to his damage in the sum of $4,000, and has further damaged him in the mining of the remaining coal in the sum of $2,000. The total damages prayed for were $16,000.
    The defendant in its answer admitted that it had mined and removed 1,896 tons of coal from the premises, denied the allegations of the amended petition, and especially denied that the removal of the coal was willfully done.
    Upon the trial a verdict was returned for the plaintiff for $5,000, and the answers to special interrogatories indicated that that amount was returned for the damages assessed on the first cause of action, and that nothing was returned as to the second cause of action. Motion for new trial was overruled, judgment entered upon the verdict, and error prosecuted to the Court of Appeals. Upon hearing in that court, error was found to the prejudice of the coal company, in this, to-wit:
    “First. That the court erred in overruling the motion of the Athens & Pomeroy Coal & Land Company, plaintiff in error, made at the conclusion of the evidence to arrest from the jury all the evidence on the second cause of action in the plaintiff’s amended petition, and to direct the jury to return a verdict for the said the Athens & Pomeroy Coal & Land Company, plaintiff in error, the defendant below, upon said second cause of action.
    “Second. That the court erred in instructing the jury that as a matter of law the knowledge and acts of the mine superintendent were the knowledge and acts of the Athens & Pomeroy Coal & Land Company, the plaintiff in error, the defendant below, and that, if the trespass was willful upon the part of the mine superintendent of the defendant below, it was willful on the part of the defendant below, the Athens & Pomeroy Coal & Land Company.”
    The court further found that the other errors complained of by the coal company were not well taken. Judgment of reversal was entered. To reverse this judgment of the Court of Appeals, error is now prosecuted to this court.
    
      Mr. D. Curtis Reed, for plaintiff in error.
    
      Mr. A. D. Russell and Messrs. Jones & Jones, for defendant in error.
   By the Court.

The reversal by the Court of Appeals in this case is based upon two grounds: First, for error in the court failing to grant the motion of the coal company to direct a verdict in its favor on the second cause of action in the plaintiff’s amended petition; and, second, for error in the court’s general charge on the instruction to the jury that as a matter of law the knowledge and acts of the mine superintendent were the knowledge and acts of the Athens & Pomeroy Coal & Land Company.

As to the first alleged ground of error, Ave are not disposed to regard the same as prejudicial, because whatsoever error there might have been therein was corrected by the special finding of the jury awarding the plaintiff no recovery upon the second cause of action; and, further, if the two causes of action were improperly joined, the question of misjoinder might have been raised by demurrer or answer, which would have been the better practice. See Section 11311, General Code.

It is apparent that the verdict of $5,000 might have been returned by the jury on the first cause of action alone, if they found that the 1,896 tons of coal were taken by the coal company purposely, willfully, intentionally, and wrongfully, and assessed the measure of damages that the coal company was liable for at the market value of the coal so taken at the mouth of the mine, or on the tipple, without any deduction for the cost of production. An amount so returned for coal taken in the year 1920 might under this record have been within the sum found by the jury. The position of plaintiff in error that no part of the recovery in this case was based upon the second cause of action is consistent with the record, and we cannot find that the court’s failure to grant the motion was prejudicial to defendant in error.

As to the second ground of reversal, we are of opinion that the Court of Appeals was right in its conclusion finding that the trial court charged that the knowledge of the mine superintendent was knowledge and notice to the defendant of the willful and intentional, as well as wrongful, taking of the coal in question. This instruction, when taken in connection with the measure of damages, which we find the court of common pleas correctly gave to the jury, and which the Court of Appeals approved, was prejudicially erroneous. The landowner, for coal wrongfully taken, is entitled to compensation which would be the value of the coal in place. If, however, the coal was wrongfully, intentionally, and purposely taken, then the measure of damages becomes larger, in this, that the landowner is entitled to retain any amount which the wrongdoer has expended in mining, removing, and transporting the coal from its natural state to the mouth of the mine Or on the tipple. The law does not permit a willful wrongdoer to profit by recovering any part of the expense which he may have incurred by reason of his wrongful act, or any profit thereon, but allows this amount to the injured party as a part of his measure of damages for the wrong that he has suffered. This right is based upon the willful character of the taking.

Exemplary or punitive damages, being awarded not by way of compensation to the sufferer, but by way of punishment to the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though, of course, liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive, or malicious intent on the part of the agent. In other words, where that which is tantamount to punitive or exemplary damages is to be recovered by reason of the willful character of the wrongful act, proof of this knowledge and willfulness on the part of the party producing the wrong must be made. The employer cannot be punished for the personal guilt of his servant or agent, unless the employer authorized, ratified, or participated in the wrongdoing. 5 Fletcher on Corporations, Section 3354; Mechem on Agency, Sections 2013, 2014, 2015; L. S. & M. S. Ry. v. Prentice, 147 U. S., 101, 13 S. Ct., 261, 37 L. Ed., 97.

While in the brief of counsel reference is made to other errors claimed to have been committed by the trial court, we do not deem the same prejudicial, but approve the view taken thereof by the Court of Appeals. Entertaining these views, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Day, Kinkade and Robinson, JJ., concur.  