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Forrester v. S. P. Co.

December 31, 1913

MAMIE A. FORRESTER, AS THE ADMINISTRATRIX OF THE ESTATE OF DICK FORRESTER, DECEASED, RESPONDENT, V. SOUTHERN PACIFIC COMPANY (A CORPORATION), APPELLANT.


Appeal from Second Judicial District Court, Washoe County; W. H. A. Pike, Judge.

C. R. Lewers and Lewers & Henderson, for Appellant.

J. B. Dixon and Summerfield & Curler, for Respondent.

By the Court, Talbot, C. J. (after stating the facts):

1. Any conflict in regard to the testimony was for the jury, and the facts may be regarded as shown by the substantiated evidence for the plaintiff. (Lowman v. Bank, 31 Nev. 306; Murphy v. So. Pac. Co., 31 Nev. 120, 21 Ann. Cas. 502; Sultan v. Sherwood, 18 Nev. 454; McGurn v. McInnis, 24 Nev. 370; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1050.)

In the able briefs and arguments of respective counsel the contentions of the parties have been clearly presented. On behalf of the appellant it is urged that the entire action abated on the death of Dick Forrester; that the court had no jurisdiction to appoint Mamie A. Forrester as administratrix, or to substitute her as plaintiff; that punitive damages are not allowed in Nevada, and are not recoverable in this action; that the damages are excessive; and that the court erred in the admission of hearsay testimony and in the giving and refusing of instructions.

2. The attack upon the letters of administration is purely collateral. If it be admitted that such attack may be made when the court is without jurisdiction, we conclude it cannot avail here, because under the facts shown the court had jurisdiction to grant the letters. Reliance is placed upon the opinion in Re Bailey's Estate, 31 Nev. 378, Ann. Cas. 1912a, 743. Aside from the holding there that letters may be granted to a nonresident, the facts are distinguishable. Bailey was killed by the explosion of an engine in Lincoln County, and left no property except a gold watch and ring and a little money on his person, and a right of action for damages for his alleged wrongful death. Letters were issued in a different county, and the decision was in a direct proceeding to have them set aside. No question was presented similar to the one raised here as to whether the

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district court may grant letters of administration in the county in which a person dies, upon his estate consisting of a pending suit brought by him in that county for breach of contract or damages.

3. For respondent it is claimed that the action, being one to recover damages sustained in Nevada, is statutory, and did not abate on the death of Dick Forrester, that letters of administration were properly issued, and that the respondent is entitled to recover under the following statutes:

“Section 1. Whenever any person shall suffer personal injury by wrongful act, neglect or default of another, the person causing the injury shall be liable to the person injured for damages; and where the person causing such injury is employed by another person or corporation responsible for his conduct, such person or corporation so responsible shall be liable to the person injured for damages.

“Sec. 2. Such liability, however, where not discharged by agreement and settlement, shall exist only in so far as the same shall be ascertained and adjudged by a state or federal court of competent jurisdiction in this state in an action brought for that purpose by the person injured.” (Stats. 1905, p. 249.)

“Sec. 165. Actions for the recovery of any property, real or personal, or for the possession, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases where the same might have been maintained by or against their respective testators or intestates in their lifetime.” (Comp. Laws, 2951.)

We are also cited to the following cases, which hold that the right of action for the negligent killing of a person is an asset of his estate, and warrants the appointment of an administrator: Jordan v. Chicago Ry. Co., 125 Wis. 581, 104 N. W. 803, 1 L. R. A. n.s. 885, 110 Am. St. Rep. 865, 4 Ann. Cas. 1113; In re Mayo, 60 S. C. 401, 38 S. E. 634, 54 L. R. A. 660; Findlay v. Chicago Ry. Co., 106 Mich. 700, 64 N. W. 733; Hutchins v. St. Paul Ry. Co.,

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44 Minn. 5, 46 N. W. 79. In the note, 1 L. R. A. n.s. 885, it is said that this proposition is sustained by the preponderance of the authorities, and that the right to make collateral attack on the appointment of an administrator on the ground that there were no assets to sustain such appointment is denied in most of the decisions, as cited in the note in 18 L. R. A. 243.

If the deceased left any claim or right of action in the pending suit, we see no reason why it should not be regarded as property, nor why letters of administration may not be granted upon it in the county in which the case is pending if he is a nonresident and leaves no other property in the state. If it be conceded that there is also a right of action in California, this would not make the appellant liable for damages, for as in ordinary rights of action between individuals upon which suits may be brought in different states the judgment of the court first taking jurisdiction may be pleaded as a bar to further recovery. If no right of action survived, this would be a complete defense for the appellant, without attacking collaterally, or otherwise, the letters of administration. The right of action was a transitory one, and the action pending in Washoe County at the time of Forrester's death there was property upon which letters of administration could be issued.

In the case of Pyne, Administrator of the Estate of Henry C. Austin, Deceased, v. Railway Company, 122 Ky. 304, 91 S. W. 742, 5 L. R. A. n.s. 756, Austin, a citizen of Indiana, was injured by being run over by an engine in Jeffersonville, Ind. He brought suit in Kentucky to recover damages for the injury, which he claimed was caused by the gross negligence of the company's servants in charge of the engine. Some time after this suit was filed, and while still residing in Indiana, he died. Aside from the suit or cause of action, he owned no property in Kentucky. An administrator was appointed in Kentucky, and the suit was revived in his name. The company defended, denied negligence, pleaded contributory negligence, and alleged that at the time of his death Austin was a resident of Jeffersonville, Ind.; that he

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owned no estate of any kind in Kentucky, and had no debt owing to him in Kentucky. It was also asserted as a defense by the company that the injury occurred in Indiana, the cause of action arose under the laws of that state, and that it was provided by the statute in Indiana that: “A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person and actions for seduction, false imprisonment, and malicious prosecution.”

The statutes of Kentucky provided that letters of administration might be granted in that state in the county where the decedent died, or where his estate or part thereof shall be, or where there may be any debt or demand owing him. The court said: “Construing these sections, it has been held that where a nonresident has been killed in this state by the tort of another, administration will be granted upon his estate in this state, even for the sole purpose of suing to recover damages for the tort, because the statute which gives the right of action to the estate of such decedent for such death, ex necessitate rei, confers jurisdiction, by implication, to appoint an administrator to prosecute the suit. (Brown v. Louisville & N. R. Co., 97 Ky. 228, 30 S. W. 639.) It has also been held that where a resident of this state is killed by the tort of another out of this state, administration may be granted upon his estate in this state. But it has been held, also, that where a nonresident of this state is killed by the tort of another out of the state, and who has not estate or property in this state, there cannot be administration granted upon his estate in this state. (Hall v. Louisville & N. R. Co., 102 Ky. 484, 43 S. W. 698, 80 Am. St. Rep. 358; Turner v. Louisville & N. R. Co., 110 Ky. 879, 62 S. W. 1025.) * * * Whether an action should survive to the personal or real representatives of the plaintiff is a matter of policy to be settled for itself by each state. It goes to the remedy alone, and does not really affect the cause of action as being actionable. Such remedies are not extraterritorial. Generally the remedy is governed by the law of the forum,

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and not by the lex loci. As the plaintiff's cause of action accrued to him, not by the statute of Indiana, but under the common law, prevailing there as it does here, when he sued upon it in this state, whether upon his death before the termination of the suit, it would be allowed his personal representative to continue to prosecute it, affects the remedy only, and is a matter wholly within the control of the state where the suit is pending. (Baltimore & O. R. Co. v. Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677.) In this state, as we have seen, the cause of action is permitted to survive, and a revivor in the name of the personal representative of the decedent is allowed.”

In the Joy case the United States Supreme Court held that the right of an administrator to revive and continue an action for personal injuries commenced before the death of the person injured, is controlled by the law of the place where the action is pending, and not by the law of the state where the injury occurred and the cause of action arose; that an action brought in Ohio by the injured person to recover damages for injuries sustained by the negligence of the defendant in Indiana does not abate upon the death of the person injured, but may be continued by his administrator appointed in Ohio, although if no suit had been brought the action would have abated both in Indiana and Ohio, and if suit had been brought in Indiana the action would have abated in that state. The following is the last paragraph of the opinion in that case: “It is scarcely necessary to say that the determination of the question of the right to revive this action in the name of Hervey's personal representative is not affected in any degree by the fact that the deceased received his injuries in the State of Indiana. The action for such injuries was transitory in its nature, and the jurisdiction of the Ohio court to take cognizance of it upon personal service or on the appearance of the defendant to the action cannot be doubted. Still less can it be doubted that the question of the revivor of actions brought in the courts of Ohio for personal injuries is governed by the laws of that

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state, rather than by the laws of the state in which the injuries occurred.”

In Martin v. Wabash Ry. Co., 142 Fed. 650, 73 C. C. A. 646, 6 Ann. Cas. 582, it was held that an action for personal injuries survived under the statute of Illinois, and the court said: “Whether a cause of action survives by law is not a question of procedure, but of right, and is determinable when the action is one arising at common law, not by the law of the state where the injuries were inflicted, but by the law of the state where the action is brought. (Martin, Admr., v. Baltimore and Ohio R. R. Co., 151 U. S. 691, 14 Sup. Ct. 533, 38 L. Ed. 311; Baltimore and Ohio R. R. Co. v. Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677.)”

In Webber v. St. Paul City Ry. Co., 97 Fed. 140, 38 C. C. A. 79, it was held that an action for personal injuries did not abate on the death of the person injured, under the statute of Minnesota. It is said in the opinion: “There is nothing in the statute to the effect that a cause of action ex contractu, arising out of an injury to the person, shall survive, while such a cause ex delicto shall abate. In order to sustain the contention of counsel for the plaintiff in error, it is necessary to ingraft a sweeping exception upon the act of the legislature, so that it will read: ‘A cause of action arising out of an injury to the person dies with the person, except in cases in which the injury was the breach of a contract.' * * * When the legislature has lawfully established a rule which limits the time or manner of maintaining a class of actions, and has made no exception to that rule, the conclusive presumption is that it intended to make none, and the courts have no power to do so. (Madden v. Lancaster Co., 27 U. S. App. 528, 539, 12 C. C. A. 566, 573, and 65 Fed. 188, 195; McIver v. Ragan, 2 Wheat. 25, 29, 4 L. Ed. 175; Bank of State of Alabama v. Dalton, 9 How. 522, 528, 13 L. Ed. 242; Vance v. Vance, 108 U. S. 514, 521, 2 Sup. Ct. 854, 27 L. Ed. 808.) * * * Counsel for the respective parties to this action have presented a careful and exhaustive review of the decisions of the English and American courts upon the rule of the

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common law that a personal action dies with the person. But the statute of Minnesota is so plain and positive in its terms that we do not feel at liberty to disregard, evade, or explain it away, and we must decline to follow them in this discussion. * * * When the language of a statute is unambiguous, and its meaning is clear, arguments by analogy or from history and attempted judicial construction serve only to create doubt and to confuse the judgment. They serve to obscure far more than to elucidate the meaning of the law. There is no safer or better canon of interpretation than that, when the terms of a statute are plain and its meaning is clear, the legislature must be presumed to have meant what is expressed, and there is no room for construction. (Knox County v. Morton, 32 U. S. App. 513, 516, 15 C. C. A. 671, 673, 68 Fed. 787, 789; U. S. v. Fisher, 2 Cranch, 358, 399, 2 L. Ed. 304; Railway Co. v. Phelps, 137 U. S. 528, 536, 11 Sup. Ct. 168, 34 L. Ed. 767; Bedsworth v. Bowman, 104 Mo. 44, 49, 15 S. W. 990; Warren v. Paving Co., 115 Mo. 572, 576, 22 S. W. 490; Davenport v. City of Hannibal, 120 Mo. 150, 25 S. W. 364.)”

In Atchison, Topeka and Santa Fe R. R. Co. v. Sowers, 213 U. S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695, it was decided that an action brought by a resident of Arizona for an injury sustained in New Mexico could be maintained in Texas, notwithstanding the statute of New Mexico, which by its terms would restrict the bringing of the action to the courts of New Mexico; and it was held that the rights of action which exist regardless of statute, such as rights of action for personal injuries, are maintainable wherever courts may be found that have jurisdiction of the parties and the subject-matter, when not inconsistent with any local policy, and that no state can pass laws having force over persons and property beyond its jurisdiction. The court said: “An action for personal injuries is universally held to be transitory, and maintainable wherever a court may be found that has jurisdiction of the parties and the subject-matter. (Rover

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on Interstate Law, 154, 155; McKenna v. Fisk, 1 How. 242, 11 L. Ed. 117; Dennick v. Railroad Co., 103 U. S. 11, 18, 26 L. Ed. 439.)”

In Christensen v. Floriston Pulp and Paper Co., 29 Nev. 552, we held that a right of action for damages for death resulting from personal injuries suffered in California was transitory, and that a suit for their recovery could be maintained in this state.

4. In the construction given to our act of 1905 by the United States Circuit Court for Utah (Coyne v. Southern Pacific Company, 155 Fed. 683), the question regarding whether an action like the present one survives was not before the court, and it is not assumed that consideration was given to the question before us for determination.

5. We have high regard for the decisions of the federal courts, and when they construe federal laws they are binding upon the tribunals of the different states. On the other hand, the federal courts follow the decisions of the highest court of a state construing the constitution and laws of a state, unless they conflict with the United States constitution or federal laws, notwithstanding that the federal court may believe that the opinion of the state court is improper. (N. Y. Cent. R. Co. v. Miller, 202 U. S. 584, 26 Sup. Ct. 714, 50 L. Ed. 1155; Union National Bank v. Railway Co., 163 U. S. 331, 16 Sup. Ct. 1039, 41 L. Ed. 177; Bacon v. Texas, 163 U. S. 221, 16 Sup. Ct. 1023, 41 L. Ed. 132; Supreme Lodge v. Meyer, 198 U. S. 508, 25 Sup. Ct. 754, 49 L. Ed. 1146.)

Although some courts with judges trained in the principles of the common law have declined to give a liberal construction to statutory enactments which are derogatory to and would overturn common-law principles, and in some instances may have been inclined to adhere to the rule that actions for damages resulting from torts, even when coupled with breach of contract, did not survive, notwithstanding statutory provisions, we conclude that the language of the sections before quoted include the cause of action alleged in this case. As these

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statutes provide that “all actions founded upon contracts may be maintained by and against executors and administrators in all cases where the same might have been maintained by or against their respective testators or intestates in their lifetime,” and that persons causing another to suffer personal injury by neglect or default shall be liable for damages in an action brought by the person injured, and as the injury here arose from the neglect and default of the defendant to keep its contract, and there is nothing in the words used excepting actions founded upon a tortious breach of a contract, and as this action is founded upon contract and is transitory and was properly brought and maintained by the person injured, the decedent, in his lifetime, it follows that it may be continued by his administratrix.

6. It is not the duty of the court to hold that the legislature did not mean what the language clearly indicates, or did not intend that this statute which they had taken the time to enact should have some effect different from the law existing at the time it was passed, or that cases which did not survive at common law should be excluded from the operation of the statute if they come within the ordinary meaning of the words employed.

7. Notwithstanding the argument that the cause of action should be treated as one in tort which abated upon the death of Forrester, the injury and damage to Forrester and his hardships and suffering while trying to reach his destination resulted from the failure of defendant to comply with its contract for carriage, as evidenced by the ticket sold to Forrester, and the insulting and humiliating words and conduct of the agent of the defendant at the time he ordered him to leave the train were inseparably connected with the breach of the contract by the defendant company. If this were not so, we would still be unable to escape the conclusion that the action is founded upon contract, for if Forrester had not obtained, possessed, or paid for the ticket, which was undoubtedly a contract, or paid fare, the payment of which would in effect be a contract, the company would have been authorized to eject him from the train.

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In Samuels v. New York City Ry. Co., 52 Misc. Rep. 137, 101 N. Y. Supp. 534, the court said: “If the plaintiff's story is true, he was grossly assaulted, wantonly insulted, and wrongfully ejected from the defendant's car by its servant. * * * On this evidence the defendant clearly committed a breach of its contract of carriage, for which the plaintiff is entitled to recover substantial damage, even though he proved no loss of wages or of time, or physical injuries. He is entitled to recover compensatory damages for injury done to his feelings, and for the indignity suffered. (Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503; Hines v. Dry Dock, 75 App. Div. 391, 78 N. Y. Supp. 170.)”

If the action were not based upon the ticket contract both by allegation and proof, it may be assumed that the defendant would have demurred or moved for a non-suit, because the plaintiff could not recover for being ejected from the train when traveling without a ticket or payment for passage amounting to a contract, when, as in this case, no more force was used than was necessary to remove Forrester from the car, and such removal constituted a breach of contract of carriage. If the action were for some insult, assault, or tortious act of the train agent not connected with the breach of the contract, and Forrester had been given passage in compliance with the terms of the ticket, the provision of the statute for the survival of all actions founded upon contract would not apply.

Cases may arise, and have arisen, in which damages would be recoverable purely in tort for the expulsion of a person from a train when traveling without a ticket or the payment of a fare, with the right of the company to eject him in the absence of a contract or obligation of passage. If a person without a ticket or right to be carried were injured by being put off a moving train, or on a bridge or desert, under circumstances of unusual hardship, damages would be recoverable for injuries sustained, but an action for their recovery would not be based upon contract.

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8. If damages for a tortious breach of a contract are recoverable by the party injured, it was within the power of the legislature to provide that an action commenced by him for their recovery should not abate upon his death. Some states have statutes providing that all causes of action survive, others that all causes of action with specified exceptions survive, and others that certain specified actions survive. Under these statutes actions survive notwithstanding they would abate at common law.

In Melzner v. N. P. Ry. Co., 41 Mont. 162, 17 Pac. 148, it was urged under the citation of cases that the Montana statute providing for the survival of actions did not affect the abatement of an action for personal injury, and applied only to actions which survived at common law. It was held that the suit, which was purely in tort for injuries to a boy from being struck by a locomotive, survived, and that the damages could be recovered by his administrator.

We should not adhere too closely to common-law distinctions or obsolete methods of pleading abolished by our code which might result in a denial of the right to recover damages for any injury inflicted. The statutes control, regardless of the common-law principles under which actions for tort abated, and exemplary damages were not recoverable in actions on contract or in tort after the death of the person injured. The legislature long ago abolished the distinction in the forms of action, and in later passing the statutes we have quoted may not have intended to carry the common-law distinctions not mentioned as exceptions to the statute which if allowed to control would leave the statutes without any force in this case. A liberal view in regard to the form of the action for expulsion of a passenger was taken by the court in Railway Co. v. Brauss, 70 Ga. 368, and in Railroad Co. v. Hine, 121 Ala. 234, 25 South. 857.

9. If exemplary damages are allowable at all, there is no good reason why, if warranted by statute, and there is wantonness, oppression, and hardship, they should not

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be recoverable in an action for the tortious breach of a contract, or in a case where the passenger has bought a ticket or paid his fare, and is injured by failure of the company to keep its contract of carriage, as well as if he were injured by a tort in no way connected with the breach of a contract, or were expelled from the train with undue force, or under unwarrantable circumstances, when the company had a right to eject him for nonpayment of fare. Under our statutes such an action brought by the person injured and based on contract survives. The damage resulted from the failure of the company to perform its duty and keep its contract, and if exemplary damages are allowable, against public carriers as a warning or punishment, and to prevent a repetition of practices injurious to people traveling, they should be allowed under our statute for a wanton and oppressive breach of carriage, and to prevent railroad companies from ejecting passengers who are entitled to transportation.

Although railroads, as the best means for the convenient and speedy transportation of passengers and commodities, are among the most important factors in the progress and prosperity of the civilized world, and when properly managed are of great service and benefit, they are not without their obligations to the public. Many of the great railway systems of the country were built with the aid of government, state and municipal land grants and subsidies, and all of any importance depend upon or exist under public laws providing for incorporation, franchises, and condemnation of private property for right of way. From the profits of these roads, collected from the public, they have been improved and extended, and other roads have been built. Also, it is with money collected from the public that the railroad companies are enabled to pay high salaries and compensation to officers, attorneys, political agents, and other talented and skilful men to manage the business of the railroad companies, so that the best dividends may be paid and the largest revenues may be collected from the public, which is dependent upon the roads for transportation.

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It has long been settled by the courts of the country, including the highest, that when the rates fixed by the railroad companies are excessive they may be regulated or reduced by public authority. It must also be conceded that a railroad is liable for damages for failure to comply with its contract, or the terms of the ticket which it has sold. The passenger, whether traveling in a special car or on a first- or second-class ticket, is entitled to be carried to his destination without being insulted or subjected to discourteous treatment by the employees of the company. We have heretofore held that railroad companies are bound to the highest degree of care for the safety and protection of passengers, and are responsible for the slightest negligence or want of skill in either themselves or their servants. (Murphy v. Southern Pacific Co., 31 Nev. 125, 21 Ann. Cas. 502; Sherman v. Southern Pacific Co., 33 Nev. 404, and cases cited.)

In view of the amount of the verdict and the important principles of law involved, we have given careful consideration to the contentions of the appellant “that punitive damages are not allowable in any case under the established principles of the law,” and particularly that this is so in Nevada under the case of Quigley v. C. P. R. R., 11 Nev. 350, 21 Am. Rep. 757, “that if punitive damages may be recovered in this state in a proper case, they cannot be recovered in this action,” and that the company is not liable for the act of the agent in ejecting Forrester from the train.

In considering objections to the allowance of punitive damages, the Supreme Court of Kansas, in Cady v. Case, 45 Kan. 733, 26 Pac. 448, said: “The principal question discussed in this case upon the argument was whether exemplary damages ought to be allowed in any civil action, and we are asked to re-examine this question, and reverse the prior decisions of this court permitting exemplary or vindictive damages. Our own decisions for a long time have established that, whatever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law allows the jury to give what

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is called exemplary or vindictive damages. We could not depart from this doctrine now without overruling all of the prior decisions of this court upon this subject, and we are not willing to do so. * * * ‘And after all this discussion the Supreme Court of the United States decides the law as laid down in these instructions. Mr. Justice Grier, delivering the opinion of the court, well says: “If repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by the statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured.” We have no doubt that such is the law. Whether it be founded in sound reason or not is not so much our province to say as to determine if it be law. The writer hereof believes it to be not only good law, but founded on sound principles, and beneficial in its application. It often furnishes the only restraint upon a bad man, who cares little for his neighbor's character, his person, or his property. The party injured pursues the wrongdoer to punishment when society is too careless to do so.' These decisions have since been followed in the cases of Hefley v. Baker, 19 Kan. 9; Titus v. Corkins, 21 Kan, 722; Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625; Winstead v. Hulme, 32 Kan 568, 4 Pac. 994; Railway Co. v. Rice, 38 Kan. 403, 404, 16 Pac. 817, 5 Am. St. Rep. 706; Clark v. Weir, 37 Kan. 98, 14 Pac. 533; West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530; Manufacturing Co. v. Boyce, 36 Kan. 351, 13 Pac. 609, 59 Am. Rep. 571.”

Mr. Sedgwick, in his work on Damages (9th ed.), at sections 351 and 352, quotes the foregoing language of the Supreme Court of the United States, and from many decisions, showing that courts generally sustain the allowance of punitive damages. He says: “These authorities were followed by such a multitude of cases that the principle became, by the middle of the last century, as fully established by weight of authority as any doctrine

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of the law. In the first edition of this treatise, the doctrine was recognized as so established; and this opinion, in the face of able and persistent opposition, has prevailed. * * * So in Connecticut, in an action on the case for gross negligence, it was held by Church, J., in delivering the opinion of the Supreme Court of Errors: ‘There is no principle better established and no practice more universal than that vindictive damages or smart money may be and are awarded by the verdict of juries, and whether the form of the action be trespass or case.' So in Pennsylvania, Gibson, J., delivering the opinion of the court, said: ‘In cases of personal injury, damages are given not to compensate but to punish.'”

At sections 365 and 366, over the citation of authorities, Mr. Sedgwick says: “Oppression, brutality, or insult in the infliction of a wrong is a cause for the allowance of exemplary damages. * * * A woman in delicate health is wrongfully turned out of her house at night in a storm; she may recover exemplary damages. A passenger, wrongfully ejected from a railroad train with rudeness and violence, may recover exemplary damages, though mere indecorous conduct in expelling a passenger is held not to be sufficient cause for their infliction. So exemplary damages may be recovered where the wrongful act is accompanied with circumstances of insult and outrage. * * * If the injury is wantonly inflicted, exemplary damages may be recovered; as, for instance, where the act was done with reckless disregard of the rights of others, or of the consequences of the act. Thus in Baltimore and Yorktown Turnpike Road v. Boone, where the company exacted illegal fare, and the plaintiff on his refusal to pay was forcibly ejected, it was held that he could recover exemplary damages on the ground that the company had been guilty of criminal indifference to the obligations of public duty, which amounted to malice; and so, generally, exemplary damages may be given against a carrier for ejection of a passenger in wanton disregard of his rights, or for deliberate refusal to stop a train on signal. Thus, also, exemplary damages

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may be recovered for an unprovoked and causeless battery, and for reckless defamation.”

Another eminent text-writer, Mr. Cooley, in volume 2 (3d ed.) of his work on Torts, page 1017, states: “The master is liable for the acts of his servant, not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond. * * * So when a railway company puts a conductor in charge of a train, and he purposely and wrongfully ejects a passenger from the cars, the railway company must bear the blame and pay the damages. In this case the company chooses its servant and puts him in charge of its business, and the injury is done while performing it, and in the exercise of the power conferred. If the corporate authorities did not direct the act to be done, they nevertheless put a person of their own selection in a position requiring the exercise of discretionary authority, and, by intrusting him with the authority and with the means of doing the injury, have, through his agency, caused it to be done. As between the company and the passenger, the right of the latter to compensation is unquestionable. So for an assault upon a passenger by the conductor, brakeman, or other employee. A railroad company is liable for the use of excessive force by its employees in ejecting a passenger from its cars. And generally the master is liable for the wilful or intentional wrongs of his servant committed in the performance of his duty as servant or within the scope of his employment.

In Hale on Damages (2d ed.) at page 326, it is said: “It is usually held that corporations are liable to exemplary damages for the acts of their agents or servants, in cases where the agent or servant would be liable for such damages. This is placed upon the ground that otherwise corporations would never be liable for exemplary damages,

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since they can act only by agents or servants. Thus it has been said: ‘We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to railroad corporations in their capacity of carriers of passengers, and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the corporation to maltreat and insult a passenger, or to cases where such act is directly or impliedly ratified; for no such cases will occur.'” And in the same work at page 381: “Where a carrier fails to carry a passenger to his destination, and sets him down at some intermediate point, compensation may be recovered for all the expenses of delay, including loss of time and cost of a reasonable conveyance to his destination. He may also recover compensation for the indignity of the expulsion from the train, and, if there are aggravating circumstances, he may recover exemplary damages. Where by the fault of the carrier's agents, and without the passenger's fault, the ticket is not such a one as he should have to entitle him to passage, the carrier will be liable in damages for expelling him.”

In Philadelphia and Reading R. R. Co. v. Derby, 14 How. (55 U. S.) 468, 14 L. Ed. 502, the Supreme Court of the United States held that the master is liable for the tortious acts of his servant done in the course of his employment, even in disobedience of his master's orders. In Railroad Co. v. Hanning, 15 Wall. 657, 21 L. Ed. 220, that court said: “The rule extracted from the cases is this: The principal is liable for the acts and negligence of the agent in the course of his employment, although he did not authorize or did not know of the acts complained of. So long as he stands in the relation of principal or master to the wrongdoer, the owner is responsible for his acts. When he ceases to be such and the author is himself the principal and master, not a servant or agent, he alone is responsible.”

In Railroad Co. v. Quigley, 21 How. (62 U. S.) 202, 222, 16 L. Ed. 73, it was held that a ...


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