
    Percy Walsh, Respondent, v. Hyde & Behman Amusement Company, Appellant.
    Second Department,
    May, 9, 1906.
    Assault and battery — when jury divides compensatory and punitive damages verdict for former confirmed although plaintiff not entitled to punitive damage—when master not liable to punitive damages for assault by servant.
    In an action for assault and battery in forcibly ejecting the plaintiff from a theater, when the court'has directed-the jury to divide the damages, stating what amount is fixed for compensation and what for punitive damages and the jury h&s so divided its verdict, the award of compensatory damages will be' allowed to stand,' although punitive damages .were not warranted by the evidence. / y
    
    
      Such punitive damages cannot be recovered when it is not shown that the defendant’s employees who ejected the plaintiff and threw him down three flights of ' stairs were known by the defendant to be improper or vicious servants, or to have been guilty of such conduct before.
    Appeal by the defendant, the Hyde & Behman Amusement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the -clerk of the county of Kings on the 21st day of June, 1905, upon the verdict of a jury, and also" from an Order entered in said clerk’s office on the 10th day of July, 1905, denying the defendant’s.motion for a new trial made upon the minutes.
    
      Hugo Hirsh, for the appellant.
    
      John M. Ward, for the respondent.
   Woodward, J.:

The plaintiff was concededly ejected from the defendant’s theatre, in the borough of Brooklyn,-on the evening of January 18, 1902. On the part of the plaintiff it is contended that he was thrown down three .flights' of stairs and badly beaten and bruised, such force being wholly unnecessary in ejecting him; that this was done while the plaintiff was in possession of" a ticket entitling him to a seat, and without any provocation on his part. The defendant’s witnesses testified to the effect that the plaintiff was drunk and that he was using vile and obscene language, and that no more force than was" necessary was used. The case was submitted to the jury, no motion to dismiss the complaint or for the direction" of a verdict being made, upon a charge to which there was no exception upon the merits of the case, and the jury has found in favor of the plaintiff.

The learned court in its charge to the jury told them that if they reached the point where it was necessary to determine the amount of the damages, that the plaintiff was entitled to compensation for the pain and suffering and also for the humiliation,-and "that they might go farther and “ give him damages for the purpose of punishing the defendant.” To this the defendant excepted, and if the matter had rested here we should be inclined to hold that the evidence did not show a state of facts charging the defendant with liability for punitivo damages, for it was not shown that the servants of the defendant who ejected the plaintiff • were known to the defendant to be improper servants, or- that they had ever been guilty of conduct which should have given notice of their vicious tendencies, though the fact that the defendant defended the conduct of its Servants under the theory that the plaintiff was drunk, where it appears that he' had not been drinking that day at all, might have a tendency to show ratification. But counsel for the plaintiff- asked -the court to permit the jury to divide the damages, stating what amount was found for compensation and what amount for punitive, and the court directed the jury to comply with this request, with the result that the jury found a verdict for $1,500 for compensatory damages, and $100 for punitive damages. This, it seems to us, protected the defendant; there can be no doubt that the charge-of the court in respect to compensatory damages was clear and correct, no exception being taken to that portion of the instruction, and the jury having found that the damages sustained by the plaintiff by his injuries and for the humiliation which he suffered amounted to $1,500, so. much of the verdict'is entirely warranted by the evidence, and affords no ground for complaint. As to the $100 for punitive damages, we are of the opinion that the evidence did not warrant the submission of that question to the jury, and that the judgment should be modified by /striking out the $100, and as thus modified the judgment should be affirmed.

The judgment should be modified as suggested above, and as so modified should be affirmed, together with the order appealed from, without costs.

Present — Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ.

Judgment modified in accordance with opinion of Woodward, J., and ás so modified, together with the order appealed from, unanimously affirmed, without costs..  