
    Julius Lewine, Respondent, v. The Interborough Rapid Transit Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Damages — Exemplary damages — Instructions — As to exemplary damages against corporation.
    Where two actions are brought by a passenger against a carrier, one for false imprisonment and the other for an alleged assault, and they are tried together, it is error for the court to instruct the jury that the right of freedom of the person “if infringed upon, is one that should be punished in an exemplary manner. If you believe that this plaintiff was unlawfully and falsely imprisoned, you may inflict to such a degree as, in your discretion, you believe proper, vindictive or punitive damages upon the defendant, to punish it for the acts of its servants which brought upon this plaintiff humiliation, mortification, embarrassment and disgrace,” where the court makes no reference to the necessity for proof that the action of the servants was wanton or malicious and that the employer was implicated with the servants in the commission of the tort or that it had expressly or impliedly authorized or ratified the act of its employees.
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.
    Charles A. Gardiner (Vine H. Smith, of counsel), for appellant.
    Boudin & Liebman, for respondent.
   Seabury, J.

The plaintiff brought two actions against this defendant to recover damages. In one action the plaintiff sought to recover for an alleged false imprisonment and, in the other, for an alleged assault. By stipulation between the attorneys for the parties these actions were tried together. The judgment recovered in favor of the plaintiff must be reversed because of an improper instruction given to the jury in the charge of .the court. The court, in its charge to the jury, said: The right of freedom of person is a right which, in our jurisprudence, we desire to hold inviolate and, if infringed upon, is one that should be punished in an exemplary manner. If you believe that this plaintiff was unlawfully and falsely imprisoned, you may inflict to such a degree as, in your discretion, you believe proper, vindictive or punitive damages upon the defendant, to punish it for the acts of its servants which brought upon this plaintiff humiliation, mortification, embarrassment and disgrace.” To this charge the defendant duly excepted. An employer is not liable for punitive damages for every false imprisonment or assault committed by his employee while acting within the scope of his employment. In order to justify- an award of punitive or vindictive damages in such a case there must be proof that the action of the servant was wanton or malicious, and that the employer was implicated with the servant in the commission of the tort, or that he had expressly or impliedly authorized or ratified the act of his employee. The charge in question was erroneous in that it made no reference to the necessity for proof of such wanton or malicious conduct, or to the implication of the employer in such conduct. It authorized the infliction of punitive damages if the jury found that “ the plaintiff was unlawfully and falsely imprisoned.” Such an instruction was prejudicial to the defendant and calls for the reversal of this judgment. In Craven v. Bloomingdale, 171 N. Y. 439, 450, the court, after reviewing the authorities which established the rule relative to the award of punitive damages, said: It is apparent that, when the trial judge, m the case before us, having instructed the jury as to the law of compensatory damages, told them, in effect, that they had.also the power, if they thought proper, to add, to such a sum as they fixed for compensation, an amount for punitive or vindictive damages, the jury were furnished no rule under which the latter damages could he assessed; they were simply told that they had the power to award them.” In the present case the charge is not only open to the objection that the court failed to define the circumstances under which the jury were authorized to award punitive damages, hut also that the charge carried to the jury the intimation that they “ should ” award such damages.

The judgment is reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve, J., concurs; MacLean, J., taking no part.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  