
    James Donivan, Resp’t, v. The Manhattan Railway Company, App’lt
    
      (New York Common Pleas, General Term,
    
    
      Filed January 16, 1893.)
    
    
      1. Master and servant—Wilful tort of servant.
    For the wilful tort of a servant a master is not answerable in punitive damages, unless he authorize or ratify the tort, or be guilty of misconduct in the employment or retention of the servant.
    3. Same—Punitive damages—Intent.
    Punitive damages being imposed as a punishment for the wilful or reckless misconduct of a wrongdoer, cannot be inflicted regardless of his intent, whether good or bad.
    3. Same—Corporations.
    It is error, therefore, to charge that a corporation master is responsible in punitive damages for an inexcusable assault and battery by its servant, when the evidence authorizes the inference that the servant acted from an innocent motive and in the supposed discharge of his duty.
    4. Same.
    When a proposition of law is true only with a qualification of limitation, it is error to charge it absolutely and unconditionally, if the evidence calls for the application of the qualification or limitation.
    5. Same.
    It is error, therefore, to charge that a corporation master is liable in punitive damages for the wilful tort of its servant, in the absence of evidence that the master authorized or ratified the tort, or was guilty of misconduct in the employment or retention of the servant.
    6. Same—Ratification of tort.
    The mere retention of a servant after his wilful tort, without proof of knowledge of the tortious quality of the act on the part of the master, is insufficient to authorize an inference of a ratification of the tort.
    7. Same.
    A carrier corporation is not liable in punitive damages for an assault and battery by its servants on a passenger, unless the corporation authorize or ratify the tort, or wrongfully employ or retain the servant.
    8. Trial—Charge.
    When the evidence as to a fact is conflicting, it is error so to charge as to give the jury to understand that they may find the fact on the testimony of the plaintiff’s witnesses alone.
    Appeal from judgment on a verdict, and from an order denying a new trial.
    Action for injuries inflicted on plaintiff by defendant’s servants in ejecting him from the platform of defendant’s railway. Plaintiff had a verdict in the sum of $16,000.
    
      Edward G. James, for app’lt; Michael H. Cardozo, for resp’t.
   Pryor, J.

Assuming the aspect of the case most favorable to the plaintiff, as presented by the pleadings and proofs, he has recovered a judgment against the defendant for a wilful injury by its servants while he sustained to it the relation of passenger. Dwinelle v. R. R. Co., 120 N. Y., 117; 30 St. Rep., 578; Car perder v. R. R. Co., 97 N. Y., 494; Stewart v. R. R. Co., 90 id., 588. The validity of the judgment is challenged by many exceptions, of which two only need be subjected to consideration.

In compliance with a request of the plaintiff, the judge charged: “If the jury find that the plaintiff, at the time he was ejected from the platform, was not committing any breach of regulation or other misconduct,-and was not intoxicated, they have a right to find that the attempt to eject him was an utterly inexcusable assault and battery, for which the defendant may be held liable for punitive damagesto which instruction the defendant duly excepted.

Upon its terms, the proposition submitted to the jury cannot be upheld. It affirms that the plaintiff being without fault, the attempt to eject him of itself subjected the defendant to punitive damages; whereas, the law is that the denunciation of punitive damages is directed against the evil intent of the wrongdoer, and in the absence of that intent is unwarrantable. Hamilton v. Third Ave. R. R. Co., 53 N. Y., 25. It may be, and the evidence tends to establish, that defendant’s servants, in ejecting the plaintiff, honestly and reasonably believed him to be guilty of misconduct; in which event they, and a fortiori the defendant, would not be liable beyond the measure of mere compensation. ' And yet, without reference to the intent of the defendant’s servants, whether good or bad, the charge authorized the jury to award punitive damages simply upon the ground of an unjustifiable assault on the plaintiff. Here was clear error, Hamilton v. R. R. Co., 53 N. Y., 25, 29-30, and, since, for anything apparent in the record, the jury exonerated the servants from improper motive, the error is inevitably fatal to the judgment. Cleghorn v. R. R. Co., 56 N. Y., 44, 49.

Assuming, however, that the persons who inflicted the injury on the plaintiff were responsible to him in punitive damages, still the defendant was not so answerable merely because of its relation to the actual wrongdoers ; and if this proposition be correct, it follows that, since the charge imputed liability for punitive damages to the defendant because simply of that relation, the instruction involves a vicious principle, and is again fatal to the judgment.

The principle of punitory damages in a civil action crept into the jurisprudence of England by imperceptible approaches; is recognized by no other system of law; and is impugned by writer’s and judges of authority as illogical, unphilosophical and pernicious to tlie administration of justice. 2 Greenleaf on Ev., § 253, note 2; Fay v. Parker, 53 N. H., 342 ; 16 Am. Rep., 270; Murphy v. Hobbs, 7 Colo. 541; 49 Am. Rep., 366, 370 ; Stewart v. Maddox, 63 Ind., 51; Spokane &c. Co. v. Hoefer, 2 Washington, 45; 26 Am. St., 842.

Conceding the doctrine to be incorporated into the jurisprudence of this state, the question for adjudication is, whether for the wilful tort of his servant, a master, without more, is liable in punitory damages ? Upon principle the answer is obviously in the negative. Since punitory damages are inflicted as a punishment for the evil intent or bad conduct of the wrongdoer, and since ex hypothesi the master is guilty of no such intent or conduct, in reason and justice he is not amenable to the penalty. “ When there has been no intentional offense committed, when a party has only done what he honestly believed to be his duty, punishment is not deserved.” Grover, J., in Hamilton v. R. R. Co., 58 N. Y., 30. Nor are the absurdity and injustice of the contrary rule mitigated, but aggravated rather, by the imputation of the guilt of the servant to the innocent master. , Vicarious punishment is not a principle of human law. A judgment for compensatory damages affords a plaintiff complete reparation for his injury; and if, in the interest o£ the public, punishment should be inflicted, common justice requires that it fall only on the guilty. Of late only has a master been made responsible in compensation for the wilful tort of his servant, Mali v. Lord, 39 N. Y., 381; to push the principle of vicarious liability to the point of imposing punishment for an imputed offense would not only violate all analogy, but would shock every instinct of justice.

How stands the question upon authority ? In some other jurisdictions decisions sustain the principle of the absolute liability of a master in exemplary damages for the wrongful act of his servant; but the clear preponderance of adjudication is to the contrary. Hagan v. R. R. Co., 3 R. I., 88; 62 Am. Dec., 377, and cases collected in Note, 385, 386; Gulf, etc., R. R. Co., 80 Texas, 362; 26 Am.St., 749, where it is ruled that: “Amasteris not liable in exemplary or punitive damages for the tort of his servant unless he authorized it, or, with knowledge of the wrong, adopted or ratified it, so as to make it his act in fact.”

In Ricketts v. R. R.. Co., 33 West Va., 433 ; 25 Am. St., 901, the law is propounded thus: “ A railway corporation is not answerable in exemplary damages for an assault on a passenger by one of its agents made in a malicious, unlawful or unnecessary manner, when there is no evidence that it was ever authorized, ratified or approved by the corporation, or that the servant was incompetent or of known bad character.” A recent writer of repute says: “ The better and more reasonable doctrine seems to be that the railway company is not to be held liable in exemplary damages for injuries caused by the negligence of its servants, unless it be shown that the servants’, act was wilful, and was either authorized or ratified by the company.” Patterson on Railway Accident Law, 471, § 392.

But, whatever the weight of decisions abroad, in this state, at least, the question is concluded by authoritative adjudications. In Cleghorn v. R. R. Co., 56 N. Y., 44, the proposition is : “ For negligence, however gross or culpable, of a servant while engaged in the business of the master, the latter is not liable in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established, however, by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant knowing that he was incompetent, or, from bad habits, unfit for the position he occupied.”

And in Fisher v. R. R. Co., 34 Hun, 433, the supreme court in the first department, per Daniels, J. (Davis and Brady, JJ.,concurring), ruled that “ A railroad company cannot be held liable for punitive damages unless shown to have been itself guilty of gross neglect or misconduct.”

Such being the law of Mew York, the error in the charge under criticism is manifest, and consists in the omission of the requisite qualification of the liability of a master in punitory damages for the tort of the servant; namely, the privity or misconduct of the master himself. “We cannot say but that the jury may, under the charge, have allowed exemplary damages without finding the necessary facts authorizing them to do it, and hence the defendant may have been injured by the charge. We are constrained to hold that the charge was erroneous in this respect; the rule with its limitations should have been explicitly stated.” 56 N. Y., 49; 34 Hun, 433.

In the case at bar, the magnitude of the verdict itself imports an allowance for punitive damages; and supposing the evidence-to authorize such allowance, still we are unable, under the charge, to say that the jury did not render the verdict without finding the defendant guilty of any participation in the wrong or other misconduct. A reversal of the judgment results, therefore, without reference to the state of the evidence.

We may add, however, that upon a critical examination of the-record, we find no proof of any misconduct of the defendant. The only circumstance adduced to fix the defendant with exemplary damages is the alleged fact that “ after the ticket agent reported the occurrence,” and the plaintiff commenced his suit, the-defendant did not discharge the servant, but resisted the action “ upon the sole issue that the plaintiff was guilty of misconduct, and that the servant had a right to eject him.” It is not apparent that the defendant was apprised of the wrongful nature of its servant’s act, without which knowledge there could be no ratification; but, on the contrary, by the very terms of counsel’s -proposition, it is manifest that the defendant believed its servants innocent of any wrong, and rightfully ejected the plaintiff because of misconduct. But, to authorize an inference of ratification, it must appear that the party ratifying had knowledge of all the facts and circumstances attending the transaction. Vincent v. Rather, 31 Tex., 77; 98 Am. Dec., 516; Gulick v. Grover, 33 N. J. L., 463; 97 Am. Dec., 728, and note; Billings v. Morrow, 7 Cal., 171; 68 Am. Dec., 235, and note. “A company cannot be held to ratify an assault and battery committed by its servant by retaining him in its service, where it believed his account of the affair and thought.it just to preserve the status quo until a judicial determination of the matter.” Williams v. Pullman & Company, 40 La. Ann., 87; 8 Am. St., 512.

The judgment is invalidated by another and still more obvious error in the charge. A question of moment on the amount of damages, and strenuously contested on the trial, was, whether plaintiff’s injuries would, in time, pass away, or develop ultimately into some fatal form of mental malady. The issue hanging in-suspense on the balance of expert testimony, the learned trial judge charged that “if the jury believe, from the evidence of the physicians called on the part of the plaintiff, that the injuries which the plaintiff had sustained will develop into some serious condition hereafter, the plaintiff is entitled to recover damages for such pain and suffering as the jury believe he will sustain.” Thus, in terms, the determination of the disputed fact, material to the amount of recovery, was submitted to the jury on the plaintiff’s evidence alone, to the exclusion of all contrary evidence adduced by the defendant. Argument is unnecessary to demonstrate the mischievous illegality of this instruction. The direction to the jury should have been to ascertain the fact upon all the evidence. Slate v. Whit, 72 Am. Dec., 548.

As we cannot know but that the fact was found for the plaintiff upon the strength of his evidence, and in total disregard of the contradictory testimony produced by the defendant, the proposition presented to the jury necessarily requires a reversal of the judgment.

Judgment and order reversed, and a new trial directed, costs to ■abide the event.

Daly, Ch. J., and Bischoff, J., concur.  