
    HAMILTON against THE THIRD-AVENUE RAILROAD COMPANY.
    
      New York Superior Court; General Term,
    
    
      October, 1872.
    Amendment.—Exceptions.—Railroad Companies. —Regulations as to Expulsion for NonPayment of Fare.—Exemplary Damages.—Master and Servant.
    It is in the discretion of the court at the trial to allow the complaint to be amended, by increasing the amount of damages claimed, without previous notice of motion therefor.
    In an action for damages, the defendant by omitting to ask the court to direct a verdict, and going to the jury without objection, precludes himself from objecting, on a motion for a new trial, that the verdict was'against the evidence.
    Where a conductor is instructed by the railroad company employing him, that he must put off from the cars, with as little force as may be necessary, any passenger who does not pay his fare or produce a transfer, the company are liable to a passenger put off by the conductor, in case of non-payment, for any abuse of authority, and for injuries resulting from any error of judgment or mistake of fact by the conductor as well as for those which arise from negligence or reckless performance of his duty.
    Compensatory damages (in the case of personal injuries) are such as will compensate the plaintiff for the injuries actually sustained, including his pain and anguish of mind and body.
    
    Exemplary damages are those which are given as an example, by way of punishment, to prevent a repetition of the wrongful act complained of. They are something in the character of a punishment by the people, with the difference, however, that the person injured is the one that recovers the damages instead of the people by fine or imprisonment.
    
      For an assault committed by an agent in the line of his duty and within the scope of his employment, the master is liable, and is liable in exemplary damages in a proper case.
    
    Corporations are not exempted from liability for exemplary damages for acts committed by their servants.
    Appeal from an order denying a motion for a new trial, and from a judgment.
    This action was brought by Thomas Hamilton against The Third-Avenue Railroad Company, to recover damages claimed to have been sustained by plaintiff, in consequence of being put off one of the defendant’s cars for an alleged non-payment of fare.
    Upon the trial plaintiff testified that a few minutes after twelve o’clock, on June 30, 1868, he took passage at Ninetieth-street and Third-avenue on defendant’s car No. 75, on its downward passage, and paid the usual fare of seven cents ; that, upon reaching the depot at Sixty-Fifth-street, the car turned and went into the depot, and its conductor told the passengers to “ change cars that plaintiff, with the other passengers, left car No. 75 ; that defendant’s car No. 3 was waiting to receive them; that being told by the conductor of" car No. 3 that, if he came off" car No. 75, he was all right and would not need a transfer ticket, he went in and seated himself in car No. 3 ; that car No. 3 thereupon proceeded on its trip towards the City Hall, and at about Fifty-Ninth-street its conductor asked plaintiff for his fare ; that plaintiff declined to pay again; that thereupon the car was stopped and the conductor fetched plaintiff to the front platform to put him off; that plaintiff then took hold of a handrail by the window to resist the attempt to push him off; that the conductor pinched plaintiff’s hand and pulled it open, and then succeeded in forcing plaintiff off; that the plaintiff thereupon took the next car, and upon payment thereon of six cents fare, was carried to his destination.
    The defendant produced three or four witnesses, who testified that car No. 75 did not run so as to connect with car No. 2; that car No. 75 was a “through car,” and on the day specified by plaintiff did not run into the depot, but continued its through trips, and that for this reason the occurrence, as stated by the plaintiff, could not have happened.
    The case was submitted to the jury, and under the charge of the court to the effect, among other things, that in case they found for the plaintiff, they might assess exemplary as well as compensatory damages, the jury found a verdict for plaintiff to the amount of five hundred dollars.
    The defendant moved upon a case made, at special term, for a new trial; which motion was denied.
    The present appeal was from the order denying motion for new trial, and also from the judgment.
    
      
       That future suffering may be considered if there be competent evidence respecting it, see also Matteson v. N. Y. Central R. R. Co., 62 Barb., 364.
    
    
      
       See Jackson v. Second Ave. R. R. Co., 47 N. Y., 274.
    
   By the Court.

Freedman, J.

The defendant, by omitting to move for the direction of a verdict, and by going to the jury without objection, conceded that the case presented a sufficient conflict of evidence to authorize its submission to the jury. Having voluntarily taken the chance of a favorable verdict at their hands, which would have concluded the plaintiff upon the facts, we must hold, upon the authority of Rowe v. Stevens, recently decided by this court, and reported in 12 Abb. Pr. N. S., 339, that the defendant cannot be permitted to complain of an adverse verdict by arguing that the case presented no evidence to be submitted to the jury, or at least presented such a preponderance of evidence on defendant’s side as to admit of no other verdict except- one in defendant’s favor.

Allowing, at the commencement of the trial, the amount claimed in the complaint, to be increased from three thousand dollars to five thousand dollars, without a previous notice of motion therefor, was a matter resting in the discretion of the court (Richtmeyer v. Remsen, 38 N. Y., 206; Meyer v. Fiegel, 7 Robt., 122). Not the slightest harm has accrued to the defendant from such amendment, and consequently no reason exists for the interference of the general term with the exercise of that discretion.

The detailed statements made by the court, in charging the jury, of other similar cases and of the action of the courts therein, and the remark to plaintiff’s counsel in reply to said counsel’s announcement, that he had no exceptions to take, involve no error, but present mere questions of propriety. These are not reviewable on a bill of exceptions, and can only be considered on a motion for a new trial, if assigned as a specific ground for the granting of a new trial, for the reason, that the jury may possibly have been influenced thereby. Not having been thus urged, we must disregard them on appeal.

Defendant’s exceptions to the rulings of the court below in admitting certain evidence, and to the refusal of the court to re-instruct the jury, after their retirement, under an elaborate charge covering the point respecting which additional information was sought, are clearly untenable.

On the trial defendants’ superintendent testified that “if a passenger leaves one car, and gets on another, he must either pay his fare or produce a transfer. If he does neither, the instructions of the company are, to put him off, using as little force as may be necessary. The only guide to the conductor is the fare or a transfer.” Upon this testimony the court was justified in charging, that putting a passenger off from a car in case of refusal to pay fare is within the line of the duty and employment of defendant’s conductors. And the jury having by their verdict adopted plaintiff’s version of the occurrence, instead of believing the testimony of defendant’s witnesses, defendant’s liability to respond in damages became fully established. For it is well settled that if an act is done by a servant in the business of the master and within the scope of his employment, the master is liable to third persons for any abuse of the authority conferred, and for injuries resulting from any error of judgment or mistake of" facts by the servant, as well as for those resulting from a negligent or reckless performance of his duties. This rule applies equally to corporations and natural persons (Weed v. Panama R. R. Co., 17 N. Y., 363; Sandford v. Eighth-Ave. R. R. Co., 23 Id., 343; Drew v. Sixth-Ave. R. R. Co., 26 Id. 51; Higgins v. Watervliet Turnpike Co., 46 Id., 23).

The remaining question, therefore, is, to what extent the law will hold the defendant liable. This is a grave and most important question. Upon this point the jury were instructed that, in case they found for the plaintiff, they might assess exemplary as well as compensatory damages. The latter were held to be such as would compensate the plaintiff for the injuries actually sustained, including his pain and anguish of mind, and body. The former were defined as damages which are given as an example, by way of punishment, to prevent a repetition of the wrongful act complained of, and they were described as something in the character of a punishment by the people, with the difference, however, that the person injured is the one that, recovers the damages, instead of the people by fine or imprisonment. At the same time the jury were severely cautioned against rendering a verdict for an excessive amount. They were instructed that the case is not one calling for severe punishment; that if they came to the conclusion, that they, must find damages for the plaintiff, and that they must be exemplary as well as compensatory damages, they should consider the character of the offense and fix a sum within the limits of reason, by way of example, but not as an act of impulse or of passion, and that they .should decide between the plaintiff and the corporation defendant as they .would decide .between man and man. These definitions and instructions were not only substantially correct, but eminently proper, if the case itself justified the instruction in any manner, that the jury might give exemplary in addition to compensatory damages. Damages for pain and anguish of body and mind are not exemplary or punitory in their character, in any strict or proper sense of those terms, but compensatory (Morse v. Auburn & Syracuse R. R. Co., 10 Barb., 621,) and in actions for injuries to the person occasioned by the negligence of the defendant it has been repeatedly held, that the plaintiff may recover damages for his pain and suffering not only down to the time of the trial, but future suffering, which the evidence renders reasonably certain must necessarily result from the injury, may also be compensated (Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y., 534; affirming S. C., 20 Barb., 282; Caldwell v. Murphy, 1 Duer, 233; affirmed in 11 N. Y. [1 Kern.], 416). The same rule as to compensatory damages applies with still greater force to actions of assault and battery, and it is no answer to the enforcement of the rule, that the assault was committed by an agent, if committed by such agent in the line of his duty and within the scope of his employment. In such case the master is liable as principal.

Now, in Caldwell v. New Jersey Steamboat Co. (47 N. Y., 296), the present court of appeals fully indorsed the principle that in any case, where exemplary damages may be recoverable against the servant, they should be allowed against the master, if it appears that he had reasonable notice of the negligent habits of the servant, or if he left the servant without control or supervision in the work. In addition, it was distinctly held, that corporations are not exempt from the infliction of punitive damages in a proper case.

That the case at bar is one of that character, seems to be clearly apparent from the decision of the supreme judicial court of Maine, in Goddard v. Grand Trunk Railway, reported as a leading case upon the points involved, in the tenth volume of the new series of the American Law Register. Justice Walton, in delivering the opinion of the court in that case in favor of sustaining a verdict of four thousand eight hundred and fifty dollars, discusses at length the question of the liability of corporations as common carriers of passengers, for the unlawful acts of their employees committed upon such passengers, to whom the said corporations, as such carriers, owe the legal duty of exercising the highest degree of care that human judgment and foresight are capable of, to make the journey safe. He then gives an interesting review of the origin, growth and application of the doctrine of exemplary damages, and points out that" the said doctrine is even more beneficial in point of public interest in its application to corporations than in its application to natural persons.

His reasoning upon this point commends itself so forcibly to the intellect, and it is so fully sustained by the numerous authorities cited in its support, that further elaboration of the subject here would be a work of supererogation. A simple reference to it is amply sufficient.

There being no error in the proceedings below, the judgment and order appealed from must be severally affirmed, with costs.

Curtis, J. concurred.  