
    Lancaster v. Hamburger.
    
      Patron of street railway — Incurs no liability to conductor — Por reporting conductor’s misconduct — III will of reporter not culpable.
    
    A patron of a street railway company incurs no liability to a conductor by reporting to the superintendent of the company such conductor’s misconduct while on duty, toward a passenger, though in making the report he is prompted by ill will and a desire to secure the conductor’s discharge from the service of the company.
    (No. 8197
    Decided April 26, 1904.)
    Error to the Superior Court of Cincinnati.
    Lancaster brought suit against Hamburger, the substance of the allegations of his petition being, that he had, for a long time, been in the employ of the Cincinnati Street Railway Co. in the capacity of a conductor on its Madison avenue line; that at some time prior to December 31, 1898, the defendant, who had conceived a violent dislike to him, and who had repeatedly threatened to procure his discharge from said employment, did, without excuse, cause, or justification, and actuated solely by a malicious desire to injure plaintiff, falsely and maliciously say to the superintendent of said company that plaintiff, while ■on duty as conductor, had been guilty of misconduct and of violation of the rules of the company, in consequence of which charge plaintiff was, on that day, •discharged from said employment, to his damage in the sum of ten thousand dollars. The defendant, .answering, denied the allegations of malice, and .averred that while he and others were traveling as passengers on the car of said company which was in •charge of plaintiff as conductor, the plaintiff was .guilty' of rude and ungentlemanly conduct towards them, which defendant reported to the superintendent of the company, and that the superintendent, ■after investigating the subject, discharged the plaintiff from the company’s service. The bill of exceptions taken upon the trial is as follows:
    “The plaintiff to maintain the issues on his behalf •offered evidence tending to prove that prior to the month of December, 1898, he was employed by the ■Cincinnati Street Railway Co. as conductor, that on •or about the thirty-first of December, 1898, he was •discharged; that with continued service and good behavior his wages would, had he remained in said employment, have been increased, according to a ■uniform and regular system of promotion then and thereafter practiced by said company and its successor ; that he was not able after his said discharge, though having used diligent and reasonable effort in that behalf, to earn as much as he had earned prior to his discharge; that prior to said discharge, ■during November and December, 1898, the defend.ant made complaint two or three times to the superintendent, or other officer of said street railway company, of the plaintiff and of Ms manner of performing his duties as such servant, of said company, and represented that he had been guilty of misconduct, impoliteness or rudeness and of the-violation of some rule of said company while on duty as conductor, and that he did not perform his duties, as such servant of said company according to certain of the rules of said company then in force; that in consequence of said complaints and representations of defendant the plaintiff was discharged as-aforesaid; that said complaints and representations were induced by the dislike and ill feeling of the defendant for the plaintiff, and a desire to eause his. discharge without justification and were not warranted by the facts; that the defendant said to or in the presence of third persons in November and December, 1898, that he would have the plaintiff discharged, even if it cost him all he was worthy that during said months he threatened and informed the plaintiff that he would have him discharged and that after said threats and avowal of said purpose the defendant complained of the plaintiff to the superintendent, or other officer of said company, with the purpose of causing and procuring his discharge, and did thereby cause and procure his* discharge; that the plaintiff and defendant had two or three disputes during said months of November and December, 1898, in which disputes the defendant had threatened to have the plaintiff discharged, as aforesaid, and on one of the occasions a personal encounter was threatened between the plaintiff and the brother-in-law and friend of the defendant, then in defendant’s company; and that the plaintiff did not violate any of the rules of said company then in force in his dealings with the defendant.
    “And to maintain the issues on his part, the defendant offered evidence tending to prove that tho complaints made by the defendant were made absolutely, entirely and completely without malice and', in the best of good faith and were true in every respect and particular; that the plaintiff had repeatedly been guilty of rudeness and impoliteness-to the defendant and his wife while on duty as conductor, and that he had in reference to the defendant, and in his presence violated the rules of said company governing its servants, or some one or more of' said rules, particularly the rule against permitting-smoking; that no threats were made at any time by defendant with the purpose of causing the discharge* of the plaintiff from the employment of said street railway company, neither to the plaintiff nor to any third person; that the defendant had no ill will against, or dislike of the plaintiff, but on the contrary, that he refrained from complaining of the-plaintiff ón many occasions when the facts would have warranted such complaint; that the discharge-of the plaintiff was caused in no respect by the defendant or by any complaints or representations, made by him, but was caused by the plaintiff’s own. neglect of his duties and by his disobedience of the rules of the said street railway company, and that the plaintiff had violated certain rules of the company in his relations as an employe of the company with the defendant and his wife. ’ ’
    The portion of the charge which is now material is the following instruction, given at the request of the defendant: “It was the duty of the plaintiff' not to conform to any fanciful degree of conduct, nor to observe that degree of conduct which, perhaps, we would like to observe at all times as ideal,, but he was obliged to observe such degree of deportment, decorum, politeness and courtesy as is* common among ordinary men in their dealings with one another; and if he failed to observe such a standard, then he would be guilty of rudeness and the defendant in the case would have a right to make complaint. If, therefore, he was guilty of failure to enforce the rules in respect to smoking or guilty of impertinence, or if in enforcing the rulés of his employers he did so in such a manner that would intentionally cause defendant to be held up to the ridicule of fellow passengers, then if the defendant in the case made complaint, it made no difference what his motive was in making the complaint. He had the right to make the complaint and defendant would be entitled to the verdict. ’ ’
    The jury returned a verdict for the defendant and, the plaintiff’s motion for a netv trial having been overruled, judgment followed the verdict. The judgment was affirmed by the superior court at general term.
    
      Mr. Charles B. Wilby; Mr. Charles E. Tenney and Mr. Oliver S. Bryant, for plaintiff in error,
    cited and commented upon the following authorities:
    
      Dial v. Holter, 6 Ohio St., 228; Hayner v. Cowden, 27 Ohio St., 292; Keeble v. Hickeringall, 11 East, 574; Carrington v. Taylor, 11 East, 571; Lumley v. Gye, 2 E. & B., 216; Temperton v. Russell, 1893, 1 Q. B., 715; Allen v. Flood, 1898, A. C., 1; Quinn v. Leathem, 1901, A. C., 495; Steamship Co. v. McGregor, 1892, A. C., 25; 23 Q. B. Div., 598; Frazier v. Brown, 12 Ohio St., 294; Chipley v. Atkinson, 23 Fla., 206; Lucke v. Clothing Cutters’ Association, 77 Md., 396; Barr v. Trades Council, 53 N. J. Eq., 101; Van Horn v. Van Horn, 52 N. J. Law, 284; Graham v. Railway, 47 La. An., 214; Ertz v. Produce 
      
      Exchange, 79 Am. St. Rep., 433; Bohn Mfg. Co. v. Hollis, 54 Minn., 223; Walker v. Cronin, 107 Mass., 555; Plant v. Woods, 176 Mass., 492; Moran v. Dunphy, 177 Mass., 485; Steamship Co. v. McKenna, 30 Fed., 48; Blumenthal v. Shaw, 77 Fed., 954; Connell v. Stalker, 20 Miscel. (N. Y.), 425; Curran v. Galen, 22 N. Y. Supp., 826; Doremus v. Hennessy, 52 Ill. App., 391; State v. Huegin, 85 N. W. Rep., 1046; Moores & Co. v. Bricklayers’ Union, 10 Re., 665; 23 Bull., 48; 46 Am. Law Reg. and Rev. (O. S.), 273; 16 Harv. Law Rev., 237; Perkins v. Pendleton, 90 Me., 166; Delz v. Winfree, 80 Tex., 400; Olive v. Van Patten, 7 Tex. Civ. App., 630; Robinson v. Land Association, 40 S. W. Rep., 843; Jackson v. Stanfield, 137 Ind., 592; Lally v. Cantwell, 30 Mo. App., 524; Morgan v. Andrews, 107 Mich., 33; Dannerburg v. Ashley, 5 Circ. Dec., 40; 10 C. C. R., 558; Mattison v. Railway Co., 5 Dec., 125; 3 N. P., 190.
    
      Messrs. Kelley & Hauck, for defendant in error,
    cited and commented upon the following authorities :
    
      Keeble v. Hickeringall (1707), 11 East, 574; Moran v. Dunphy, 177 Mass., 485; Kelley v. Ohio Oil Co., 57 Ohio St., 327; Townsend on Slander and Libel (4 ed.), sec. 42; Racroft v. Tayntor, 68 Vt., 219; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St., 198; Traction Co. v. Parish, 67 Ohio St., 189; Letts v. Kessler, 54 Ohio St., 73; Frazier v. Brown, 12 Ohio St., 294; Jenkins v. Fowler, 24 Pa. St., 308; Boyson v. Thorn, 98 Cal., 578; Fisher v. Fielding, 67 Conn., 106; Thornton v. Thornton, 63 N. C., 211; Chambers v. Baldwin, 91 Ky., 121; 
      Bourlier v. McCauley, 91 Ky., 135; Ency. Law and Proced., 645, 650, 663; Rice v. Albee, 164 Mass., 88; 172 Mass., 172; Cooley on Torts, 690; Hunt v. Simonds, 19 Mo., 583; Anderson v. Public Schools, 122 Mo., 67; Randall v. Hazleton, 12 All., 415; Bowen v. Matheson, 14 All., 499; Bank v. Bank, 27 Vt., 505; Glendon Iron Co. v. Uhler, 75 Pa. St., 467; Payne v. Railway Co., 13 Lea, 507; Heywood v. Tillson, 75 Me., 227; Perkins v. Pendleton, 90 Me., 166; Lally v. Cantwell, 30 Mo. App., 524; Glencoe Co. v. Hudson, etc., 138 Mo., 439; 16 Am. & Eng. Ency. Law, 1109 to 1116; 18 Am. & Eng. Ency. Law, 87.
   Shauck, J.

In addition to the instruction set out in the foregoing statement of the case, the court gave to the jury a general charge, devoting much time to definitions and details, portions of it suggesting that there must have been some evidence’ whose tendency is not clearly shown in the bill of exceptions. The evidence not being before us we are. confined to the statement contained in the record with respect to its tendency. Counsel for the plaintiff now insist that the court erred in the general charge when it instructed the jury that no evidence had been offered by the plaintiff that the defendant, had solicited his discharge. In support of the criticism, it is said that such solicitation might properly be inferred from the evidence tending to show that the defendant bore ill will toward the plaintiff and, that prompted thereby, he had threatened to have him discharged, and had made complaints of his misconduct. The force of this criticism seems to be completely averted by the suggestion that the court might have added that the petition did not charge; that the defendant had made such solicitation.

Not being willing to give apparent approval to all that was said in the general charge, and not desiring to consider questions whose solution would not aid in determining the rights of the parties, we observe that the portion of the charge which related to the measure of damages has been rendered immaterial by the finding of the jury that the plaintiff was not entitled to recover at all, and that with respect to his right to recover the general charge contained nothing to detract from the force of the instruction requested and given, that if the plaintiff was guilty of the misconduct charged in the complaints made by the defendant to the superintendent of the company there could be no recovery, whatever motive prompted the defendant to make the complaints. The rights of the parties depend, therefore, upon the correctness of that instruction.

The ground of the present controversy, though lying near, is not within that covered by Allen v. Flood, 1898, A. C., 1 to 81. That case was reported at such great length that it is difficult to rescue the principles of the decision from the ocean of words in which they are submerged. But it is obvious that in the opinions favorable to the right to recover much weight was given to the fact that Allen, having control of so large a number of the workmen of the employers that he was able, by withdrawing them from their service, to occasion serious injury to their business, used that power to coerce the employers to discharge the complainants, with whose service they were entirely satisfied. In that case a recovery'was denied, and, following counsel for the plaintiff in an examination of the dissenting opinions, it seems quite clear that they proceeded upon considerations which are not presented here. Although a civil liability was held to have been incurred in the somewhat similar case of Quinn v. Leathem, 1901, A. C., 495, where Allen v. Flood was much discussed, it was because of “a combination of two or more without justification or excuse, to injure a man in his trade.” Neither of these cases, nor any of the others cited by counsel for the plaintiff,! can have the effect to disturb the rule generally recognized and well established in this state, that it isj immaterial by what motive one is prompted in thej exercise of a clear legal right or the performance of a duty. Frazier v. Brown, 12 Ohio St., 294; Letts v. Kessler, 54 Ohio St., 73; Kelley v. The Ohio Oil Company, 57 Ohio St., 327. Certainly the motive which prompts one to the commission of a wrongful act may be very material, for it may determine whether the injured party may recover exemplary, or only compensatory damages. The record does not admit a doubt that the defendant exercised a legal right, if, indeed, he did not perform a duty in making complaint to the superintendent of the company of the plaintiff’s misconduct. The evidence tended to show, and the instruction required the jury to find, that the plaintiff had been guilty of the misconduct of which complaint was made. The defendant and his wife were patrons of the street railway company, a common carrier of passengers, and entitled, in common with the public generally, to civil treatment while aboard its cars, and to the benefit of the rules designed for the safety and comfort of passengers. The plaintiff was the representative of the company who came in contact with its patrons, and through whom it discharged some of the most important duties it owed the public. Since it would not be practicable for the company to institute and maintain such supervision of the conduct of all its conductors as would secure the full performance of all their duties toward passengers, the patrons of the road should be encouraged to report their misconduct fairly and justly; nor should a patron of the company be required, by the consciousness of ill will toward the offender, to abstain from making a truthful report of such misconduct. Seeing that such misconduct naturally arouses resentment in all who observe it, it would result, from the contrary rule, that a conductor’s immunity from complaint would be in proportion to the offensiveness of his misconduct.

To prevent a possible misunderstanding of the point decided, it seems proper to say that we have no occasion to determine whether the instruction was as favorable to the defendant as it should have been. It required, as a condition to a verdict for the defendant, that the evidence should show that plaintiff had been actually guilty of the misconduct charged against him. It did not permit the defense to be made out by evidence that the defendant had made the complaints in the belief that they were true, and with < reasonable grounds for such belief. Another question might be presented if the instruction had been requested by the plaintiff and it had been followed by verdict and judgment in his favor. Restricting ourselves to the requirements of the case, we conclude that the instruction was not affected by any error prejudicial to the plaintiff.

Judgment affirmed.

Spear, O. J., Davis, Price, Crew and Summers, JJ., concur.  