Joseph Hagan v. Providence and Worcester R. R. Co.

BraytoN, J.

The plaintiff in this cases move that the verdict rendered by the jury be set aside and a new trial granted — because the Judge at tbe trial instructed” tbe jury “ that if the acts of the agent of the defendants, complained of by the plaintiff in his declaration, were done and committed by .said agent in the line of his duty, and within the scope of his authority and course of employment, still the defendants might not be liable to the same extent as the agent would be personally liable.”

The exceptions to the charge of tlie Court are not very clearly stated in the plaintiff’s motion, nor is it made to appear in the exceptions filed, as it always should be, what was the-distinct charge given by the Court to the jury, to which exception is made. J We understand, however, that the evidence in the case was not such as to show any participation of the principal in the wrongful act of the agent j and that the jury were instructed that punitive or vindictive damages, or smart money, were not to be allowed as against the principal, unless the principal participated in the wrongful act of the agent, expressly or impliedly, by his conduct, authorizing it or approving it, either before or after it was committed. And that they were instructed that all damages for actual injury — loss of time, pain of body — money paid for employment of physician, or injury to the feelings of the defendant, might be allowed.

We think the charge was right. Whatever may be the rule of damages- in cases of a direct prosecution against the wrong doer, we think there can he no doubt of the soundness of the ruling of the judge at the trial, as applicable to a case like tbe one in question, where a principal is sought to be made liable for the act of Ms servant or agent.

In cases where punitivo or exemplary damages have been assessed, it has been done, upon evidence of such willfulness, recklessness or wickedness, on the part of the party at fault, as amounted to criminality, which for the good of society and warning to the individual, ought to be punished. If in such cases, or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages, as will operate as punishment and teach'the lesson of caution to prevent a repetition of criminality: yet we do not see how such damages can be allowed, where the principal is prosecuted for the tortious act of his servant, unless there is proof' in the cause to implicate the principal and make him particeps criminis of his agent’s act. No man should be punished for that of which he is not guilty.

Cases may arise in which the principal is deeply involved in the servant’s guilt or fault — cases in which the conduct of the principal, in reference to the act of his agent, is such -as to amount to a ratification. In all such cases the principal is particeps criminis, if not the principal offender; and whatever damages might properly be visited upon him who commits the act, might be very properly inflicted upon one, who thus criminally participates in it.

But where the proof does not implicate the principal, and however wicked the servant may have been, the principal neither expressly nor impliedly -authorizes or ratifies the act, and the criminality of it, is .as much against him, as against any other member of society, we think it is quite enough, that he shall be liable in compensatory damages, for the injury sustained in consequence of the wrongful act of a person acting as his servant,

Motion for new trial refused.