Craker v. Chicago & Northwestern Railway Co.

Ryan, C. J.

I. We cannot help thinking that there has been some useless subtlety in the books in the application of the rule respondeat superior, and some unnecessary confusion in the liability of principals for willful and malicious acts of agents.This has probably arisen from too broad an application of the dictum of Lord Holt, that “ no master is chargeable with the acts of his servant but when he acts in the execution of the authority given to him, and the act of the servant is the act of the master.” Middleton v. Fowler, 1 Salk., 282. For this would seem to go to excuse the master for the negligence as well as for the malice of his servant. One employing another in good faith to do his lawful work, would be as little likely to authorize negligence as malice; and either would then be equally dehors the employment. Strictly, the act of the servant would not, in either case, be the act of the master. It is true that so great *669 an authority as Lord Kenyon denies this in the leading case of McManus v. Crickett, 1 East, 106, which has been so extensively followed; and again, in Ellis v. Turner, 8 Term, 531, distinguishes between the negligence and the willfulness of the one act of the agent, bolding the principal for the negligence but not for the willfulness. It is a singular comment on these subtleties, that McManus v. Grickett appears to rest on Middleton v. Fowler, the only adjudged case cited to support it; and that Middleton v. Fowler was not a case of malice, but of negligence, Lord Holt holding the master in that case not liable for the negligence of his servant, in such circumstances as no court could now doubt the master’s liability. In spite of all the learned subtleties of so many cases, the true distinction ought to rest, it appears to us, on the condition whether or not the act of the servant be in the course of his employment, as is virtually recognized in Ellis v. Turner.

But we need not pursue the subject. For, however that””] may be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if be delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or willful, in the negligence or in the malice of the agent; the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow one owing a duty to another to commit the performance of his duty to a third, without responsibility for the malicious conduct of the substitute in performance of' the duty. If one owe bread to another and appoint an agent to furnish it, and the agent of malice furnish a stone instead, the principal is responsible for the stone and its consequences. In such cases, malice is negligence. Courts . are generally inclining to this view, and this court long since J affirmed it.

*670 In Railroad Co. v. Finney, 10 Wis., 388 , Dixon, C. J., says: “ It was insisted by tbe counsel for the plaintiffs in error, that in no case could a right of action arise against the principal, for the willful and malicious misconduct of the agent, unless it was previously authorized or subsequently ratified by him. On careful examination o"f this position, we are satisfied that it is incorrect. The case of Weed v. P. R. R. Co., 17 N. Y., 362 , will be found to be a clear and well reasoned case upon the subject. It was there 'held that it was no defense to an action against a railroad corporation, for its failure to transport a passenger with proper dispatch, that the delay was the willful act of the conductor in. charge of the train. The- rulé established by that cáse, as we think' with much reason, is, that where the misconduct of the agent causes a breach of the obligation or contract of the principal, there the principal will be liable in an action, whether such misconduct be willful or malicious, or merely negligent. The action, though undeniably in tort, is treated virtually as an action ex contractu, and governed by the same rule of damages, unless the malice or wantottness of the agent is brought home and directly charged to the principal. In this case, the contract between the plaintiff and defendant was, that in consideration of his having paid to them the fee demanded, they were carefully to transport him in their cars from Madison to Edgerton. It is no defense for their breach of this contract, that it was occasioned by the willful act of their agent. The corporation was incapable of executing it, except through the medium of its agents. If in doing so théy violate it, no matter from what motive, their acts are the acts, of their principals, who hold them out to the world as capable and faithful in the discharge of their duties. In no other way could the company be held to a performance of its contracts.” This was, perhaps, obiter iri that case; but, with a single qualification, presently made and not material in this .connection, we fully reaffirm it in this case.

In Bass v. Railway Co., ante, p. 463, speaking of railroad *671 officers in charge of passenger trains, we said: “ They act on the peril of the corporation, and their own! Indeed, as that fictitious entity, .the corporation, can act only through natural, persons, its officers and servants, and as it, of necessity, commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and comfort in transitu, under conditions of such peril and subordination, we are disposed to hold that the whole \ power and authority of the corporation, pro hac vice, is vested in these officers; and that, as to passengers on board, they are to be considered as the corporation itself; and that the consequent authority and responsibility are riot generally to be straitened or impaired by any arrangement between the corporation and the officers, the corporation being responsible for the acts of the officers in the conduct and government of the train, to the passengers traveling by it, as the officers would be for themselves, if they were themselves the owners of the* road and train. We consider this rule essential to public con-_j venience and safety, arid sanctioned by great weight of authority.” We have carefully reconsidered all that was said in Bass v. Railway Go., and reaffirm the doctrine of that case. And what it was there said, in the passage cite'd, we were disposed to hold, we now hold, with a single qualification which we will presently make and need not notice here.

So far as they relate to the duties-of railroad companies to their passengers, and their responsibility for the officers of their trains, Railroad Go. v. Finney and Bass, v. Railway Go. are in perfect accord, though the latter case carries the principle more into detail; but both rest on the same principle.

In Bass v. Railway Co., we had occasion also to consider somewhat the nature of the obligations of railroad companies to their passengers under the contract of carriage ; the “ careful transportation” of Railroad Co. v. Finney. On the-authority of such jurists as Story, J., and Shaw, C. J.,- we likened them to those of innkeepers. And, speaking of female pas *672 sengers, we said: “ To such, tbe protection which is the natural instinct of manhood towards their sex, is specially due by common carriers.” In Day v. Owen, 5 Mich., 520 , the duties of common carriers are said to “ include everything calculated to render the transportation most comfortable and least annoying to passengers.” In Nieto v. Clark, 1 Clifford, 145, the court says: “ In respect to female passengers, the contract proceeds yet further, and includes an implied stipulation that they shall be protected against obscene conduct, lascivious behavior, and every immodest and libidinous approach.” Long before, Story, J., had used this comprehensive and beautiful language, worthy of him as jurist and gentleman, in Chamberlain v. Chandler, 3 Mason, 242 : “ It is a stipulation, not for toleration merely, but for respectful treatment, for that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evils without reluctance, and that promptitude which administers aid to distress. In respect to females, it proceeds yet further; it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lasciviousness, and against that wanton disregard of the feelings which aggravates every evil.” These things were said, indeed, of passage by water, but they apply equally to passage by railroad. Commonwealth v. Power, 7 Met, 596.

These were among the duties of the appellant to the respondent, when she went as passenger on its train: duties which concern public welfare. These were among the duties which the appellant appointed the conductor to perform for it, to the respondent. If another person, officer or passenger or stranger, had attempted the indecent assault which the conductor made upon the respondent, it would have been the duty of the appellant, and of the conductor for the appellant, to protect her. If a person, known by his evil habits and character as likely to attempt such an assault upon the respondent, had been upon the train, it would have been the duty of the appellant, and of *673 the conductor for the appellant, to the respondent, to protect her against the likelihood. Stephen v. Smith, 29 Vt., 160 ; Railroad Co. v. Hinds, 53 Pa. St., 512; Commonwealth v. Power, supra; Nieto v. Clark, supra; and other cases cited in Bass v. Railway Co. "We do not undertand it to be denied that if such an assault on the respondent had been attempted by a stranger, and the conductor had neglected to protect her, the appellant would have been liable. But it is denied that the act of the conductor in maliciously doing himself what it was his duty, for the appellant to the respondent, to prevent others from doing, makes the appellant liable. It is contended that, though the principal would be liable for the negligent failure of the agent to fulfil the principal’s contract, the principal is not liable for the malicious breach by the agent, of the contract which he was appointed to perform for the principal: as we understand it, that if one hire out his dog to guard sheep against wolves, and the dog sleep while a wolf makes away with a sheep, the owner is liable; but if the dog play wolf and devour the sheep himself, the owner is not liable. The bare statement of the proposition seems a reductio ad ábsurdum. The radical difficulty in the argument is, that it limits the contract. The carrier’s contract is to protect the passenger against all the world; the appellant’s construction is, that it was to protect the respondent against all the world except the conductor, whom it appointed to protect her: reserving to the shepherd’s dog a right to worry the sheep. No subtleties in the books could lead us to sanction so vicious an absurdity.

The contract of carriage was very surely the contract of appellant, not of the agent who sold the ticket. It rested with the appellant to perform it by agents of its own choice, on its own responsibility. It chose the officers of the train, with the conductor at their head, to perform its contract for it. Where was the corporation and by whom represented, as to this contract and this passenger? Not surely in some foreign boardroom, by directors making regulations and appointing agencies *674 for the corporate business. They could not perform this contract. Not surely in some distant office, by a superintendent or manager issuing the orders of the directors to his subordinates. He could not perform this contract. Quoad this contract and this passenger, the corporation was present on this train to keep it and to care for her, represented by the officers of the train, who possessed, pro hac vice, the whole power and authority, and were the living embodiment of the ideal entity which made the contract, was bound to keep it, and is appellant here to contend that it has no responsibility for the flagrant violation of the contract, which the respondent paid it to make and to keep, by its sole present representative appointed to keep it on its behalf. Like the English Crown, it lays its sins upon its servants, and claims that it can do no wrong. We cannot bend down the law to such a convenience. The appellant tortiously broke this contract as surely as it made it: committed this tort as surely as it made the contract.

We are unwilling to waste time or patience in discussing the conductor’s violation of the appellant’s contract with the respondent. Every woman has a right to assume that a passenger car is not a brothel; and that when she travels in it, she will meet nothing, see nothing, hear nothing, to wound her .delicacy or insult her womanhood. It is enough to say that the appellant’s contract of careful carriage with the respondent was not kept, was tortiously violated by the officer appointed by the appellant to keep it.

And so the appellant seems at the time to have regarded it. It is very certain that it had a right to dismiss the conductor, as it did promptly and most properly, rescinding his contract of employment for violation of his duty. For that person violated his contract with' the appellant, by violating the appel-ant’s contract with the respondent.' He sinned in the course of his employment, against the appellant and the respondent alike: in one and the same act broke his own contract with the appellant, and the appellant’s with the respondent.

*675 We cannot think that there is a question of the respondent’s right to recover against the appellant, for a tort which was a breach of the contract of carriage. We might well rest our decision on principle.' But we also think that it is abundantly sanctioned by authority. Railroad Co. v. Finney, Bass v. Railway Co., Weed v. Railroad Co., Nieto v. Clark, Railroad Co. v. Hinds, and Railroad v. Rogers, supra; Railroad. Co. v. Derby, 14 How., 468 ; Moore v. Railroad Co., 4 Gray, 465 ; Ramsden v. Railroad Co., 104 Mass., 117 ; Maroney v. Railroad Co., 106 id., 153 ; Coleman v. Railroad Co., id., 160 ; Bryant v. Rich, id., 180 ; Railroad Co. v. Vandiver, 42 Pa. St., 365; Railroad Co. v. Anthony, 43 Ind., 183 ; Railroad Co. v. Blocher, 27 Md., 277 ; Railroad Co. v. Young, 21 Ohio St., 518 ; Sherley v. Billings, 8 Bush, 147 ; Seymour v. Greenwood, 6 Hurl. & N., 359; Bayley v. Railroad Co., L. R, 7 C. P., 415. There are cases, even of recent date, which hold the other way. But we think that the great weight of authority and the tendency of decision sanction our position.

II. It was not necessary to the decision of Bass v. Railway Co., and we were not then quite prepared, to pass upon the rule of damages in such cases as that and this. We were then aware of some apparent discrepancy between things said in that case and in Railroad Co. v. Finney, and purposely omitted all allusion to the latter case. In this case, as in Bass v. Railway Go., the rule of damages has been fully and well discussed, and is more or less'involved in the decision of this case. We have again considered it, and are now prepared to state our views of the rule in such cases.

It is said in Railroad Co. v. Finney, that the plaintiff in such a case is not entitled to exemplary damages against the principal, for the malicious act of the agent, without proof that .the principal expressly authorized or confirmed it. Without now discussing what would or would not be competent or sufficient evidence of such authority or confirmation, we may say that we have, on very mature consideration, concluded that the rule *676 in Railroad Co. v. Finney is the better and safer rule. We are aware that there is authority, and perhaps the greater weight of authority, for exemplary damages in such cases, without privity of the principal to the malice of the agent; and that Reasons of public policy are strongly urged in support of such a rule. Goddard v. Railroad Co., 57 Me., 202; Sanford v. Railroad Co., 23 N. Y., 343 ; Railroad Co. v. Rogers, 38 Ind., 116 ; and other cases. But we adhere to what is said on that point in Railroad Co. v. Finney. We think that in justice there ought to be a difference in the rule of damages against principals for torts actually committed by agents, in cases where the principal is, and in cases where the principal is not, a party to the malice of the agent. In the former class of cases, the damages go upon the malice of the principal: malice common to principal and agent. In the latter class of cases, the recovery is for the act of the principal through the agent, in malice of the agent not shared by the principal; the principal being responsible for the act, but not for the motive of the agent. In the former class, the malice of the principal is actual; in the latter, it must at most be constructive. And we are inclined to think that the justice of the rule accords with public policy. Responsibility for compensatory damages will be a sufficient admonition to carrier corporations to select competent and trustworthy officers. And responsibility for exemplary damages, in cases of ratification, will be an admonition to prompt dismissal of offending officers, as their retention might well be held evidence of ratification. The interest of these corporations and of the public, in such matters, should be made , alike as far as possible. And we hold the rule, as we have |_stated it, the justest and safest for both.

It was also said in Railroad Co. v. Finney, that the action is in tort; but that, in cases not calling for exemplary damages, the rule of damages should be as in actions ex contractu, the actual loss sustained by reason of the misconduct of the conductor.

*677 This was said arguendo, without attempt at close connection, or exact statement; and it is not altogether easy to ascertain its precise meaning. If it mean, as it may, that in such cases the recovery against the principal for the tort committed by the agent is limited to the mere pecuniary loss, we cannot sanction it. Such a rule would be in conflict with all known rules of damages in actions of tort for personal wrongs ; and would be almost equivalent to a license to officers of railroad trains and steamboats to insult and outrage passengers committed to their care for courtesy and protection: mischievous alike to the companies and the public. But if it mean, as it may and probably was intended, compensatory damages as in like actions for other personal torts, we affirm and adopt it as the rule of the court. We see no reason for distinguishing such actions from others of like character, in the rule of damages.

In Wilson v. Young, 31 Wis., 574 , Ltoít, J., inadvertently fell into some subtleties found in Mr. Sedgwick’s excellent work, which appear to us all now to confuse compensatory and exemplary damages. The distinction was not in that case, and the passage in Sedgwick was cited and approved, as such high authorities often are, without sufficient consideration. We all now concur in disapproving the distinction.

In giving the elements of damages, Mr. Sedgwick distinguishes between “ the mental suffering produced by the act or omission in question : vexation: anxiety : ” which he holds to be ground for compensatory damages: and the “ sense of wrong or insult, in the sufferer’s breast, from an act dictated by a spirit of willful injustice, or by a deliberate intention to vex, degrade or insult,” which he bolds to be ground for exemplary damages only. Sedgwick’s Meas. Dam., 85.

Mr. Sedgwick himself says that the rule in favor of exemplary damages “ blends together the interests of society and the aggrieved individual, and gives damages not only'to recompense the sufferer, but to punish the offender” (ib., 38); and, following him, this court held in the leading case of McWill *678 iams v. Bragg, 3 Wis., 424 , and has often since reaffirmed, that exemplary damages are “in addition to actual damages.”

In actions of tort,'as a rule, when the plaintiff’s right to recover is established, he is entitled to full compensatory damages. When proper ground is established for it, he is also entitled to exemplary damages, in addition. The former are for the compensation of the plaintiff; the latter, for the punishment of the defendant and for example to others. This is Sedgwick’s blending together of the interest of society and the interest of plaintiff. And it is plain that there can not well be common ground for the two. The injury to the plaintiff is the same, and for that he is entitled to full compensation, malice or no malice. If malice be established, then the interest of society comes in, to punish the defendant and deter others in like cases, by adding exemplary to compensatory damages.

We need add no authority to Mr. Sedgwick’s that, in actions for personal tort, mental suffering, vexation and anxiety are subject of compensation in damages. And it is difficult to see how these are to be distinguished from the sense of wrong and insult prising from injustice and intention to vex and degrade. The appearance of malicious intent may indeed add to the sense of wrong; and equally, whether such intent be really there or not. But that goes to mental suffering, and mental suffering to .compensation. So it seems to us. But if there be a subtle, metaphysical distinction which we cannot see, what human creature can penetrate the mysteries of his own sensations, and parcel out separately his mental suffering and his sense of wrong — so much for compensatory, and so much for vindictive damages? And if one cannot scrutinize the anatomy of his own, how impossible to dissect the mental agonies of another, as a surgeon does corporal muscles. If possible, juries are surely not metaphysicians to do it. And we must hold that all mental suffering directly consequent upon tort, irrespectively of all such inscrutable distinctions, is ground for compensatory damages in action for the tort.

*679 "With these views, we can see no error in the charge of the court below on the subject of damages.

III. The respondent appears to be of respectable rank in life, and of sufficient culture to qualify her for teaching in public schools. In the painful trial of character and temper of the scene which culminated in the assault, in her action and demeanor following upon it, in the interview intruded upon her by the appellant, and in the embarrassment of her examination on the trial, she appears to have acted with great propriety, free from all exaggeration and affectation. She appears in the record to be a person who would feel such a wrong keenly. She was entitled to liberal damages for her terror and anxiety, her outraged feeling and insulted virtue, for all her mental humiliation and suffering. We cannot say that the damages are excessive. We might have been better satisfied with a verdict for less. But it is not for us, it was for the jury, to fix the amount. And they are not so large that we can say that they are unreasonable. Who can be found to say that such an amount would be in excess of compensation to his own or his neighbor’s wife or sister or daughter? Hewlett v. Cruchley, 5 Taunt., 277. We cannot say that it is to the respondent.

By the Court. — The judgment of the court below is affirmed.