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Loth

penses incurred, or injuries or losses sustained, I that it is inferred that the principal actually by the misconduct of the other party. Boston participated in the malice or fraud, but, the 109]Mfg. Co. v. Fiske,* 2 Mason, 119, 121. In act having been done for his benefit by his Kenee v. Lizardi,8 La. 26, 33, Judge Martin said: agent acting within the scope of his employ"It is true, juries sometimes very properly give ment in his business, it is just that he should what is called smart money. They are often be held responsible for it in damages.' warranted in giving vindictive damages as a rop v. Adams, 133 Mass. 471, 480, 481. Though the principal is liable to make compunishment inflicted for outrageous conduct. But this is only justifiable in an action against pensation for a libel published or a malicious the wrongdoer, and not against persons who, prosecution instituted by his agent, he is not on account of their relation to the offender, are liable to be punished by exemplary damages only consequentially liable for his acts, as the for an intent in which he did not participate. principal is responsible for the acts of his fac-In Detroit Daily Post Co. v. McArthur, in To the same effect are: Ralston Eviston v. Cramer, and in Haines v. Schultz, tor or agent." c-above cited, it was held that the publisher of a v. The State Rights, Crabbe, 42, 47, 48; Guire v. The Golden Gate, McAllister, 104; newspaper, when sued for a libel published Wardrobe v. California Stage Co. 7 Cal. 118; therein by one of his reporters without his Boulard v. Calhoun, 13 La. Ann. 445; Detroit knowledge, was liable for compensatory damDaily Post Co. v. McArthur, 16 Mich. 447; ages only, and not for punitive damages, unGrund v. Van Vleck, 69 Ill. 478, 481; Becker less he approved or ratified the publication; v. Dupree, 75 Ill. 167; Rosenkrans v. Barker, and in Haines v. Schultz the supreme court 115 III. 331; Kirksey v. Jones, 7 Ala. 622, 629; of New Jersey said of punitive damages: "The right to award them rests primarily upon Pollock v. Gantt, 69 Ala. 373, 379; Eviston v. Cramer, 57 Wis. 570; Haines v. Schultz, 50 N. the single ground-wrongful motive." "It is J. L. 481; McCarthy v. De Armit, 99 Pa. 63, the wrongful personal intention to injure that 72; Clark v. Newsam, 1 Exch. 131, 140; Clis- calls forth the penalty. To this wrongful intent knowledge is an essential prerequisite." sold v. Machell, 26 Upper Canada Q. B. 422. The rule has the same application to corpo-"Absence of all proof bearing on the essential rations as to individuals. This court has often, question, to wit, defendant's motive-cannot be in cases of this class, as well as in other cases, permitted to take the place of evidence, without affirmed the doctrine that for acts done by the leading to a most dangerous extension of the agents of a corporation, in the course of its doctrine* respondeat superior." 50 N. J.[111 Whether a principal can be crimbusiness and of their employment, the corpo- L. 484, 485. ration is responsible, in the same manner and inally prosecuted for a libel published by his to the same extent, as an individual is respon-agent without his participation is a question Philadel on which the authorities are not agreed; and sible under similar circumstances. phia, W. & B. R. Co. v. Quigley, 62 U. S. 21 where it has been held that he can, it is adHow. 202, 210 [16: 73, 75]; First Nat. Bank mitted to be an anomaly in the criminal law. of Carlisle v. Graham, 100 U. S. 699, 702 [25: Com. v. Morgan, 107 Mass. 199, 203; Reg. v. 750, 751]; Salt Lake City v. Hollister, 118 Holbrook, L. R. 3 Q. B. Div. 60, 63, 64, 70; L. U. S. 256, 261 [30: 176, 177]; Denver & R. R. 4 Q. B. Div. 42, 51, 60. G. R. Co. v. Harris, 122 U. S. 597, 608 [30: 1146, 1148].

A corporation is doubtless liable, like an individual, to make compensation for any tort committed by an agent in the course of his employment, although the act is done wantonly and recklessly, or against the express orders of the principal. Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468 [14: 502]: New Jersey S. B. Co. v. Brockett, 121 U. S. 637 [30: 1049]; Howe v. Newmarch, 12 Allen, 49; Ramsden v. Boston & A. R. Co. 104 Mass. 117. A corpor110]ation may even be held liable for* a libel, or a malicious prosecution, by its agent within the scope of his employment; and the malice necessary to support either action, if proved in the agent, may be imputed to the corporation. Philadelphia, W. & B. R. Co. v. Quigley, 62 U. S. 21 How. 202, 211 [16: 73, 75]; Salt Lake City v. Hollister, 118 U. S. 256, 262 [30: 176, 178]; Reed v. Home Savings Bank, 130 Mass 443, 445, and cases cited; Krulevitz v. Eastern R. Co. 140 Mass. 573; McDermott v. Evening Journal Asso. 43 N. J. L. 488, 44 N. J. L. 430; Bank of New South Wales v. Owston, L. R. 4 App. Cas. 270. But, as well observed by Mr. Justice Field, now Chief Justice of Massachusetts: "The logical difficulty of imputing the actual malice or fraud of an agent to his principal is perhaps less when the principal is a person than when it is a corporation; still the foundation of the imputation is not

No doubt, a corporation, like a natural person, may be held liable in exemplary or punitive damages for the act of an agent within the scope of his employment, provided the criminal intent, necessary to warrant the imposition of such damages, is brought home to the corporation. Philadelphia, W. & B. R. Co. v. Quigley, Milwaukee & St. P. R. Co. v. Arms, and Denver & R. G. R. Co. v. Harris, above cited; Caldwell v. New Jersey S. B. Co. 47 N. Y. 282; Bell v. Midland R. Co. 10 C. B. N. S. 287, 4 L. T. N. S. 293.

Independently of this, in the case of a corporation, as of an individual, if any wantonness or mischief on the part of the agent, acting within the scope of his employment, causes additional injury to the plaintiff in body or mind, the principal is, of course, liable to make compensation for the whole injury suf fered. Kennon v. Gilmer, 131 U. S. 22 [33: 110]: Meagher v. Driscoll, 99 Mass. 281, 285; Smith v. Holcomb, 99 Mass. 552; Hawes v. Knowles, 114 Mass. 518; Campbell v. Pullman Palace Car Co. 42 Fed. Rep. 484.

In the case at bar, the defendant's counsel having admitted in open court "that the arrest of the plaintiff was wrongful, and that he was entitled to recover actual damages therefor," the jury were rightly instructed that he was entitled to a verdict which would fully compensate him for the injuries sustained, and 147 U, S. that in compensating him the jury were au

But the court, going beyond this, distinctly 112] instructed the jury that "after agreeing upon the amount which will fully compensate the plaintiff for his outlay and injured feelings," they might "add something by way of punitive damages against the defendant, which is sometimes called smart money," if they were "satisfied that the conductor's conduct was illegal, wanton and oppressive."

thorized to go beyond his outlay in and about | a passenger injured in a collision caused by the this suit, and to consider the humiliation and negligence of the servants of the corporation, outrage to which he had been subjected by the jury were instructed thus: "If you find arresting him publicly without warrant and that the accident was caused by the gross negliwithout cause, and by the conduct of the con- gence of the defendant's servants controlling ductor, such as his remark to the plaintiff's the train, you may give to the plaintiff puniwife. tive or exemplary damages.' This court, speaking by Mr. Justice Davis, and approving and applying the rule of exemplary damages, as stated in Quigley's case, held that this was a misdirection, and that the failure of the employés to use the care that was required to avoid the accident, "whether called gross or 01 ary negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually The jury were thus told, in the plainest inflicted. To do this, there must have been terms, that the corporation was responsible in some willful misconduct, or that entire want of punitive damages for wantonness and oppres- care which would raise the presumption of a sion on the part of the conductor, although conscious indifference to consequences. Nothnot actually participated in by the corpora-ing of this kind can be imputed to the persons tion. This ruling appears to us to be incon in charge of the train; and the court, theresistent with the principles above stated, unsup- fore, misdirected the jury." 91 C. S. 495 [23: ported by any decision of this court, and 376]. opposed to the preponderance of well consid ered precedents.

In Philadelphia & R. R. Co. v. Derby, which was an action by a passenger against a railroad corporation for a personal injury suffered through the negligence of its servants, the jury were instructed that "the damages, if any were recoverable, are to be confined to the di-pany in possession of a railroad, and forcibly rect and immediate consequences of the injury sustained;" and no exception was taken to this instruction. 55 U. S. 14 How. 470, 471 [14:503].

In Denver & R. G. R. Co. v. Harris, the railroad company, as the record showed, by an armed force of several hundred men, acting as its agents and employés, and organized and commanded by its vice president and assistant general manager, attacked with deadly weapons the agents and employés of another comdrove them out, and in so doing fired upon and injured one of them, who thereupon brought an action against the corporation, and recovered a verdict and judgment under an instruction that the jury "were not limited to compensatory damages, but could give punitive or exemplary damages, if it *was found [114 that the defendant acted with bad intent, and in pursuance of an unlawful purpose to forcibly take possession of the railway occupied by the other company, and in so doing shot the plaintiff." This court, speaking by Mr. Jus tice Harlan, quoted and approved the rules laid down in Quigley's case, and affirmed the judgment, not because any evil intent on the part of the agents of the defendant corporation could of itself make the corporation responsible for exemplary or punitive damages, but upon the single ground that the evidence clearly showed that the corporation, by its governing officers, participated in and directed all that was planned and done. 122 U. S. 610 [30: 1149].

In Philadelphia, W. & B. R. Co. v. Quigley, which was an action against a railroad corporation for a libel published by its agents, the jury returned a verdict for the plaintiff under an instruction that "they are not restricted in giving damages to the actual positive injury sustained by the plaintiff, but may give such exemplary damages, if any, as in their opinion are called for and justified, in view of all the circumstances in this case, to render reparation to the plaintiff, and act as an adequate punishment to the defendant,' This court set aside the verdict, because the instruction given to the jury did not accurately define the measure of the defendant's liability; and, speaking by Mr. Justice Campbell, stated the rules applicable to the case in these words: "For acts done by the agents of the corporation, either in contractu or in delicto, in the course of its business and of their employment, the corpo- The president and general manager, or, in his ration is responsible, as an individual is respon- absence, the vice president in his place, actually sible under similar circumstances." "When-wielding the whole executive power of the corever the injury complained of has been inflicted poration may well be treated as so far repremaliciously or wantonly, and with circumstanc-senting the corporation and identified with it, 113] es of contumely or indignity, the jury that any wanton, malicious or oppressive intent are not limited to the ascertainment of a simple of his, in doing wrongful acts in behalf of the compensation for the wrong committed against corporation to the injury of others, may be treatthe aggrieved person. But the malice spoken ed as the intent of the corporation itself. But of in this rule is not merely the doing of an the conductor of a train, or other subordinate unlawful or injurious act. The word implies agent or servant of a railroad corporation, octhat the act complained of was conceived in the cupies a very different position, and is no more spirit of mischief, or criminal indifference to identified with his principal, so as to affect the civil obligations. Nothing of this kind can be latter with his own unlawful and criminal inimputed to these defendants." 62 U. S. 21 tent, than any agent or servant standing in a How. 210, 213, 214 [16:75,76,77]. corresponding relation to natural persons carrying on a manufactory, a mine, or a house of trade or commerce.

In Milwaukee & St. P. R. Co. v. Arms, which was an action against a railroad corporation, by

The law applicable to this case has been | the act of the servant was authorized or rati found nowhere better stated than by Mr. Jus-fied, or that the master employed or retained tice Brayton, afterwards Chief Justice of Rhode the servant, knowing that he was incompetent, Island, in the earliest reported case of the or, from bad habits, unfit for the position he kind, in which a passenger sued a railroad cor- occupied. Something more than ordinary poration for his wrongful expulsion from a negligence is requisite: it must be reckless and train by the conductor, and recovered a verdict, of a criminal nature, and clearly established. but excepted to an instruction to the jury that Corporations may incur this liability as well "punitive or vindictive damages, or smart as private persons. If a railroad company, for money, were not to be allowed as against the instance, knowingly and wantonly employs a principal, unless the principal participated in drunken engineer or switchman, or retains one the wrongful act of the agent, expressly or im- after knowledge of his habits is clearly brought pliedly, by his conduct authorizing it or approv. home to the company, or to a superintending ing it, either before or after it was commit- agent authorized to employ and discharge him, ted." This instruction was held to be right, and injury occurs by reason of such habits, for the following reasons: "In cases where the company may and ought to be amenable 115] *punitive or exemplary damages have to the severest rule of damages; but I am not been assessed, it has been done upon evidence aware of any principle which permits a jury of such willfulness, recklessness or wicked- to award exemplary damages in a case which ness, on the part of the party at fault, as does not come up to this standard, or to gradamounted to criminality, which for the good uate the amount of such damages by their of society and warning to the individual, views of the propriety of the conduct of the ought to be punished. If in such cases. or in defendant, unless such conduct is of the charany case of a civil nature, it is the policy of acter before specified." Cleghorn v. New York the law to visit upon the offender such exem- Cent. & H. R. R. Co. 56 N. Y. 44, 47, 48. plary 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." "Where the proof does not implicate the principal, and, however wicked the serv- It must be admitted that there is a wide diant may have been, the principal neither ex-vergence in the decisions of the state courts pressly nor impliedly authorizes or ratifies the upon this question, and that corporations have act, and the criminality of it is as much against been held liable for such damages under simihim as against any other member of society, lar circumstances in New Hampshire, in Maine we think it is quite enough that he shall be and in many of the western and southern liable in compensatory damages, for the injury | states. But of the three leading cases on that sustained in consequence of the wrongful act side of the question, Hopkins v. Atlantic & St. of a person acting as his servant." Hagan v. L. R. Co. 36 N. H. 9, can hardly be reconciled Providence & W. R. Co. 3 R. I. 88, 91. *with the later decisions in Fay v. Par- [117 ker, 53 N. H. 342, and Bixby v. Dunlap, 56 N. H. 456; and in Goddard v. Grand Trunk R. Co. of Canada, 57 Me. 202, 228, and Atlantic & G. W. R. Co. v. Dunn, 19 Ohio St. 162, 590, there were strong dissenting opinions. In many, if not most, of the other cases, either corporations were put upon different grounds in this respect from other principals, or else the distinction between imputing to the corporation such wrongful act and intent as would render it liable to make compensation to the person injured, and imputing to the corporation the intent necessary to be established in order to subject it to exemplary damages by way of punishment, was overlooked or disregarded.

Similar decisions, denying upon like grounds the liability of railroad companies and other corporations, sought to be charged with punitive damages for the wanton or oppressive acts of their agents or servants, not participated in or ratified by the corporation, have been made by the courts of New Jersey, Pennsylvania, Delaware, Michigan, Wisconsin, California, Louisiana, Alabama, Texas and West Virginia.

The like view was expressed by the court of appeals of New York, in an action brought against a railroad corporation by a passenger for injuries suffered by the neglect of a switchman, who was intoxicated at the time of the accident. It was held that evidence that the switchman was a man of intemperate habits, which was known to the agent of the company, having the power to employ and discharge him and other subordinates, was competent to support a claim for exemplary damages; but that a direction to the jury in general terms that in awarding damages they might add to full compensation for the injury "such sum for exemplary damages as the case calls for, depending in a great measure of course upon the conduct of the defendant"entitled the defendant to a new trial; and Chief Justice Church, delivering the unanimous judgment of the court, stated the rule as follows: "For injuries by the negli- In the case at bar, the plaintiff does not apgence of a servant while engaged in the business pear to have contended at the trial, or to have 116] of the master, within the scope of his introduced any evidence tending to show, that employment, the latter is liable for compensa- the conductor was known to the defendant to tory damages, but for such negligence, how-be an unsuitable person in any respect, or that ever gross or culpable, he is not liable to be punished in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established by showing that

Most of the cases on both sides of the question, not specifically cited above, are collected in 1 Sedgwick, Damages (8th ed.) § 380.

the defendant in any way participated in, approved or ratified his treatment of the plaintiff; nor did the instructions 'given to the jury require them to be satisfied of any such fact be

118] *JOSEPH A. ANKENEY ET AL., priate procedure in the courts of the United

In Ohio all the property of a married woman Argued and Submitted Dec. 12, 1892. Decided is separate estate, and she can hold the legal

NOTE.-As to conveyances between husband and | guarantor for her husband or others; rights as credwife, upheld in equity, see note to Bank of Uniteditor of her husband, see note to Bein v. Heath, 12: 416. States v. Lee, 10: 81.

not chargeable in equity upon her after ac- | or contract, and remedies against such estate quired estate.

3109. The personal property, including rights in action belonging to a woman at her marriage, or coming to her during coverture, by gift, bequest, or inheritance; or* by [125 purchase with her separate money or means, or due as the wages of her separate labor, or grow. ing out of any violation of her personal rights, shall, together with all income, increase, and profit thereof, be and remain her separate The case thus presents the single question, property and under her sole control, and shall whether the separate estate of the wife, Mrs. not be liable to be taken by any process of law Clara M. Hannon, acquired by her by inherit- for the debts of her husband. This section ance from her father, in 1882, is chargeable shall not affect the title of a husband to perwith the payment of the notes described, exe-sonal property reduced to his possession with cuted, and delivered by her and others in March, 1880.

123] *At common law, a married woman is disabled from executing any promissory notes, either alone or in conjunction with her husband. A note or other contract signed by both is the obligation of the husband alone. And in the absence of legislation a separate estate to her can only be created by conveyance, devise, I