
    WINTERS v. COWEN et al.
    (Circuit Court, N. D. Ohio, W. D.
    October 10, 1898.)
    No. 1,418.
    1. Carriers or Passengers — Sale of Tickets — Repudiation of Contract.
    A railroad company which authorizes another company to issue and sell mileage tickets good over its road makes the latter company its agent, and cannot repudiate the contract so made with a passenger who in good faith buys a ticket from such agent.
    2. Exemplary Damages — Including Expenses of Litigation.
    Under the decisions of the Ohio courts, where punitive or exemplary damages are allowable, the jury may take into consideration the fair and reasonable expenses to which the plaintiff has been subjected in the vindication of his rights by litigation.
    3. Same — Implied Malice — Ejectment of Passenger bv Carrier.
    Where the general passenger agent of defendant railroad company deliberately repudiated a large number of mileage tickets which had been issued and sold to the public by his‘authority, and, in consequence of bis orders, plaintiff, who had purchased one of such tickets in good faith, was ejected from a train, such a reckless disregard of the duties of the defendant and the rights of its ticket holders, by one of its controlling-officers, constituted implied malice, and warranted the Imposition of exemplary damages.
    On Motion for New Trial.
    Mot tor & McKenzie and James M. Brown, for plaintiff.
    J. H. Collins, for defendants.
   HAMMOND, J.

Briefly, the fads are that the defendants and the Cincinnati, Jackson & Mackinaw Company had an interchangeable mileage hook arrangement, and, by a ticket agent at Cincinnati, sold mu1 of the books to the plaintiff. It was repudiated by the defendants, and the plaintiff was ejected from their train without violence, indignity, or other injury than that resulting from the inconvenience and delay incident to the occasion, as it appears in the proof. The Mackinaw Company had sent for sale in hulk at wholesale something over BOO of these books to the agent in Cincinnati. Instead of selling for cash, as he was expected to do, he trusted the broker, who did not pay, and, failing to recover them, the Mackinaw Company instructed all its conductors to outlaw every book presented within the designated numbers covering the 000. hooks. It also demanded of the defendants that they should reject, according to a list of the numbers, each of these 000 outlawed books; but the defendants, declining to take this burden, repudiated its contract by refusing to receive any book Vhalever issued by the Mackinaw Company, and so instructed their conductors. The plain! iff’s book was not in the outlawed list, having been purchased before the trouble arose. The correspondence between the general passenger agents of these two companies, who were the officials responsible for this ejection of the plaintiff, shows how recklessly they disregarded the rights of the public holding their interchangeable mileage books, innocently, and without notice of any. trouble in the premises. It was an entirely unjustifiable performance on their part to ignore the right of the plaintiff certainly, and others of the public who had bought books unaffected with the alleged in-ürmity. Even as to the 600 tickets, they were not stolen or embezzled or counterfeited;- nor were they in any sense defective on their face or in their issue. By their own neglect the companies had put them on the market without receiving, as they expected, cash for them; and the proposition was to impose this loss on the public, or, at least, to mitigate it by putting all holders to the trouble of an investigation, delay, and expense of attention to the matter of securing a refunding of their money, which comparatively few would incur perhaps. These superior officials did not seem to care for the loss, inconvenience, or injury resulting from the rejection of their tickets to passengers; nor for the human indignation they would feel at being put off a train while holding a good ticket, or else being forced to pay fares unlawfully demanded, with only a suggestion to carry their complaints to a distant headquarters, and show that they had a good claim against the company, — to prove that they were innocent of the offense of buying a ticket which the company had itself placed on the market, but which, through the mismanagement of its own agents, had been sold to brokers on a credit that had failed. And on the witness stand neither of them seemed to regret the predicament of the plaintiff, or to recognize that he had the least ground of complaint on any score. The purchase money of his ticket was not tendered, even by the pleadings here, or otherwise. My purpose in charging the jury was to restrain their natural sense of the outrage of this transaction,' and to confine their verdict within temperate limits. It is rather larger than I would have given if on the jury, or if the case had been tried 'without a jury, for the reason that the conductor’s treatment of the plaintiff was so very gentlemanly, and he discharged the disagreeable duty imposed by his superiors with so much regard for the plaintiff’s situation that there is no just cause dor complaint of his conduct on that occasion.

There was an incident occurring at the trial which possibly inflamed the jury somewhat, though everything was done by the court to prevent that mishap, it being quite apparent that the defendants here sued were not responsible for it, nor their counsel. Shindler, the Mackinaw Company’s passenger agent at that time, and who was largely, if not entirely, responsible for the reckless disregard of the rights of the plaintiff in the premises, by assuming, as he did, that he might reject perfectly good tickets sold to unsuspecting purchasers, and forcing the defendants, by his unreasonable demands, to assume that they might lawfully reject all tickets, good or bad, because it was burdensome to them to distinguish good from bad, was called as a witness for the plaintiff. He demanded of the plaintiff in open court, before the jury, that his fees and mileage should be paid before he would testify; and, this being ruled in his favor, they were paid. When it was developed in the testimony that he was largely responsible for the trouble, there was an evident dissatisfaction at his ill-natured demand for his fees in 'advance; but the court, by admonition and restraint of counsel, protected the defendants against any undue influence of the incident. So, take it altogether, there is no reason for setting aside the verdict for $1,000, because it is too large.

The main ground urged for a new trial is the contention that the de- ' fendants were not perpetually bound by their contract for interchangeable mileage tickets, and might revoke it, leaving the purchasers from the .Mackinaw Company to look to them to refund the purchase money. The answer to this is that the plaintiff purchased his book ¡before this trouble arose, and it was already a contract with defendants. Cut, beyond (his, these tickets were pro hac the defendant’s i.wi) rickets, and the issuing company’s agents were its own agents for ¡heir sale. They should have been withdrawn from use with due regard lo the rights of holders, or from the hands of agents, and not exposed to sale; for surely the traveler who goes to an authorized a gene having the tickets on hand, and offering them for sale, cannot be required to investigate the traffic contracts "to see if they do in fact authorize their sale. Once they are authorized and put upon the market, an innocent purchaser, without knowledge of the revocation of authority, would be protected in their purchase, by enforcing the coniraet of carriage in his favor. This is the familiar law of agency ami the law of sale of such paper as railroad tickets. Railroad Co. v. Winter, 143 U. S. 60, 69, 12 Sup. Ct. 356.

The concern I have had about the inslructions to the jury relate to the matter of exemplary damages. The distinction taken between punitive and exemplary damages may not bo technically correct, but it -wars designed to eliminate from the minds of the jurors any disposition to punish the defendants, and yet to permit, them to enlarge their verdict, if they saw (it, by allowing exemplary damages to the extent of reasonable compensation for necessary expenses of vindication -by litiga (ion not strictly falling within t he hill of costs, such as a reasonable compensation to attorneys. The jury was told that:

“The plaintiff lias a right to recover whatever reasonable and temperate Mim o£ money will compensate him for liis actual losses as they appear in I he proel:, to which you may rightly add such sum as, in your judgment, will protect the public against wrongful acts of like character by common carriers, — by way of example, not by way of punishment, for I wish to insist upon a distinction between the two, whether it be a technical distinction or not. It is a practical distinction, which we should bear in mind senas not to be misled by the barí» use of words. Every common carrier owes the public a duly in lilts respect, somewhat different from other parties to a contract; and it is for the vindication of that public duty that the law permits jurors to go beyond mere compensatory damages, and allow exemplary damages, where ¡here has been nothing but erroneous judgment, and yet a. mbless disregard of the duty of a public carrier to comply with its contract of carriage and recognize the tickets it issues which are binding upon it; and sometimes the law permits jurors, where there has been actual insult and personal injury, degradation, and humiliation, to add smart money or punitive damages.”

There was an application of this to the facts of the case, and it was further explained that, in this principle of giving exemplary damages, reasonable allowance might be made by the jury, if they thought the case was one for exemplary damages, for incidental expenses and attorney’s fees (hat could not be recovered if there were only a case for compensatory damages and nothing more. It might not be lawful to take proof of the lawyer’s fees and expenses to be allowed as such, by way of compensation; but, if the jury determined to give exemplary damages on the facts, they could consider that the plaintiff had been at such, expense necessarily, and fix the amount so as to coyer such fair and reasonable estimate as they might make. This is the substance of the instructions, and, on the authority of the Ohio cases, I am disposed to adhere to them as correct. Roberts v. Mason, 10 Ohio St. 278; Railroad Co. v. Ensign, 10 Ohio Cir. Ct. R. 21; Railway Co. v. Ensign, 56 Ohio St. 760, 49 N. E. 1115. That was a strong case for punitive damages, in an action for assault and battery; but, if the case be one for only exemplary damages, — if there be a distinction,— X am not able to see why the same principle does not apply. Modern cases have somewhat mitigated the law against carriers in this matter of exemplary damages, by excluding from its allowance those cases where the agent of the carrier was acting outside the scope of his duty, and the malice, express or implied, was that of the agent, and not the principal. Or, to state it otherwise, that breach of public duty, which is so flagrant in its character that it demonstrates that there has been a reckless disregard of the right of the public in the particular case of the passenger who is wrongfully ejected, must be, in the given case, a breach by the carrier company itself, in the sense that the wrongful act constituting the breach was an authorized act, and not the mere individual act of the agent, done beyond the scope of his authority. Such a reckless disregard is implied malice, or is the equivalent of malice, in a technical or legal sense, for which the law allows exemplary damages, as well as for actual malice or ill will; but it must be in its implication attributable to the carrier, and not to the particular employé on his individual account, unless it may be that the recklessness is founded in the act of the carrier in selecting an incompetent employé or agent; and, where there is no blame in the selection of the agent, the test is that of his authority,— the scope of his authority.

In my judgment, this case falls rather within the category of the case of Railroad Co. v. Harris, 122 U. S. 597, 609, 7 Sup. Ct. 1286, than that of Railway Co. v. Prentice, 147 U. S. 101, 110, et seq., 13 Sup. Ct. 261. It is true, there was no physical violence in this case, and the recovery of exemplary damages here in no sense depends upon the treatment of the plaintiff by the conductor, and it is not at all like the last-cited case. Hor was there any such flagrant criminality as was found in the other case just cited, by the “controlling officers,” to use the language of the opinion, who wantonly disturbed the peace of the community. But this is only a difference in degree. The disregard of the plaintiff’s right was, in the nature of that right and its relation to this subject of exemplary damages, just as flagrantly wrongful in the one case as the other, and the principle of making an example for the benefit of others is equally applicable. It is not the character or extent of the injury that invokes the principle, and these cited cases all say that the exemplary damages are not given in behalf of the plaintiff, nor to soothe his injuries, but in behalf of the public, which has been wronged, the public right being vindicated through the plaintiff. This principle is especially applicable to common carriers, and to enforce the rights of those who must resort to them for that service. Therefore, we do not, as in the cases of trespassers upon persons or property producing physical injuries by violence, rely altogether upon that character of injury to determine the right of the public, through the jury, to impose exemplary damages. Those considerations may enter into the amount of the damages, hut the right to inflict them depends upon the purpose to compel attention to a public duty. Mr. Justice Gray, in the Prentice Case, supra," cites and appj'oves a case from Rhode Island where, on the facts of that case, exemplary damages were refused; but the approved principle of law quoted from that ca.se fully covers this, and justifies the instructions given to the jury. Hagan v. Railroad Co., 3 R. I. 88. The use of the word “criminality” in these opinions must not be misunderstood as meaning" offenses under the criminal law, but only such indifference of others’ rights as amounts to criminal or censurable negligence.

After referring to cases of aggravated misconduct or lawless acts, and saying that “the discretion of the jury in such cases is not controlled by any very definite rules,” Mr. Justice Field, in Railroad Co. v. Humes, 115 U. S. 512, 519, 6 Sup. Ct. 110, 113, uses this language:

“For injuries resulting- from a neglect of dutie,s, in the discharge of which the public is interested, juries are also permitted to assess exemplary damages. These may perhaps bo considered as falling under the head of cases of gross negligence, for any neglect, of duties imposed for the protection of life or property is culpable, and deserves punishment.”

See, also, Scott v. Donald, 165 U. S. 58, 86-89, 17 Sup. Ct. 266; Milwaukee v. Arms, 91 U. S. 489, 495, where Mr. Justice Davis states the rule thus:

•‘To do this, there must have been some willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences.”

Ill will is not necessary to constitute malice in law. It is enough if the act he wrongful, done intentionally, without just cause or excuse. Bromage v. Prosser, 4 Barn. & C. 247, 255.

In this case the “controlling officers” of the two companies, charged with the entire duty of regulating the passenger'traffic and the management of this business between themselves and the public, after entering into a contract for interchangeable mileage tickets, putting them upon the market, and selling one of them to the plaintiff, without the least justification in fact or law, repudiated their contract with him; and this, under circumstances showing the most entire want of care in the premises. This, certainly, does raise a conclusive presumption of a conscious indifference to consequences. They consulted no counsel in a grave matter of legal liability, and, upon their own assumptions of law, acted recklessly and wholly in disregard of the rights of all ticket holders similarly situated as the plaintiff was. Without manifesting the least regret for the injury to the phi intiff., they showed on the witness stand a confidence in their own knowledge of (he legal liability and duty imposed by the circumstances under which they acted, that demonstrated the conceit of their own infallibility. It well accounts for tbeir selfish attention to their own profit, convenience, and comfort in the matter of dealing with the tickets they had put out and wished to recall, and at the same time their reckless and wanton inattention and care for the rights of the public. Motion overruled.  