Philadelphia, Wilmington & Baltimore Railroad v. Hoeflich

³⁰⁴ Robinson, J., delivered the opinion of the Court. The female plaintiff with her father, and a younger sister, eleven years of age, got upon the defendant’s train at Baltimore for the purpose of going to Magnolia Station. When the conductor came around she handed him two, tickets, one for herself and the other for her father, who was in another part of the car. The younger sister was •sitting beside her, and the conductor asked, “is this girl with you?” She answered “yes.” Thereupon he said he must collect half-fare for the girl, which the plaintiff refused to pay.

In a few minutes the conductor returned, •and again demanded payment of the child’s fare, and which was again refused by the plaintiff. After making the demand a third time, the conductor told her unless the fare was paid he should be obliged to put her and the ■child off at Chase’s Station, and the plaintiff still refusing to pay the same, she and the child were both put off the train. The plaintiff had paid her own fare and the defendant had no right of course to eject her from the train, unless there was a contract express or implied on her part to pay the fare of her younger sister. There is no evidence of an express contract, and if one is to be implied, it must be •on the ground that the younger sister was under her charge, and being under her charge, and thus responsible for her presence on the car, it was her duty to see the fare was paid.

The defendant was under no obligation of course to carry the younger sister, without being paid a reasonable compensation, and if she was under the plaintiff’s charge it is but fair and reasonable to hold her responsible for the fare. Under such circumstances the law would imply an agreement on her part to pay the fare of the child, and if she refused to pay it, the defendant had the right to put off both the plaintiff and the child— the plaintiff because she had not complied with the contract on her part implied by law, and the child because ³⁰⁵ the company was not required to carry it unless its fare was paid according to the rules and regulations of the company. But it seems the father of the child was in fact in the .car, and if so, he was as the natural guardian and protector of his child liable for the payment of its fare. And although the conductor found the child sitting beside the plaintiff, yet if he knew the father was in the car, or the circumstances were such as to put a reasonable person -on the inquiry, he had no right to hold the female plaintiff responsible for her sister’s fare.

And this we think was a question for the jury. Row he did inquire, it is true, whether “the girl sitting beside the plaintiff was with her,” to which she replied “ yes ; ” and if the case rested here it might be said that he was justified in acting on the presumption that the girl was under the plaintiff’s charge. But the plaintiff says she told him her father was in the car, and although this is denied by him, the proof shows beyond question that he knew there was a man travelling in company with the plaintiff and her sister, and that he interfered for their protection when they were being put off, and further, that he went off with them. So whether the conductor knew or might have reasonably known by proper inquiry that this man was their father, was, under all the circumstances, a proper question to be submitted to the jury.

If he did know it, or the circumstances were such as to put him on the inquiry, he had no right of course to eject the plaintiff from the train; and there was no error in granting the plaintiffs’ first prayer. Eor the same reasons the defendant’s prayers were properly refused. All the facts set forth in these prayers, namely: That the younger sister was sitting beside the plaintiff, that the latter in reply to the inquiry of the conductor, is this girl with you, said “ yes,” — that he thereupon demanded of her the payment of half-fare for the girl, which she refused ³⁰⁶ to pay; that he told her it would he his duty, to put both her and the child off, unless it was paid; that she did not tell him the child’s father was in the car, nor refer him to the father for the fare of the child; all these facts might be found by the jury, and yet when considered in connection with other facts, it would not necessarily follow that the conductor was justified in assuming that the child was under the plaintiff’s charge, and that she was, therefore, liable for the payment of its fare. Although the plaintiff may not have told him that the child’s father was in the car, and that he was the proper person to pay its fare, yet he knew there was a man in company with the female plaintiff and her sister, and the question comes up, whether under the circumstances it was not his duty, before resorting to the extreme measure of ejecting a woman and a child, to have inquired what relation this man bore to them.

This question is by the defendant’s prayers excluded from the jury. Nor can these prayers be supported on the ground that the facts, thus relied on, estop the plaintiff from maintaining this suit. She ought no douht to have referred the conductor to the father for the payment of the child’s fare. But she was a passenger, and as such had a right to stand on her own rights, and the conductor was acting on his own responsibility.

Her conduct cannot fairly be said to amount to bad faith, such as would estop her from bringing this suit. In reply to the conductor’s inquiry, she said the' child was with her, but not necessarily in the sense that the child was under her charge and protection. Besides, the conductor knew there was a man in company with them, and although she did not tell him that he was the girl’s father, yet this he could have learned by proper inquiry. We come now to the only question, about which we think there can be any difficulty in this appeal, and that is the question in regard to the rule of damages laid down ³⁰⁷ "by the Court.

If the plaintiff was wrongfully ejected from the train, she was unquestionably entitled to recover such damages as the jury might think, under all the circumstances, a proper compensation for the unlawful invasion of her rights as a passenger, and the injury to her person and feelings. To so much of the plaintiffs’ prayer, there can be no objection. But in addition to such damages as these, the Court instructed the jury, if the plaintiff was forcibly and deliberately ejected, they might give such exemplary damages, as they might think a proper punishment for the conduct of the defendant. The force and deliberation with which the wrongful act is done, are not necessarily the tests by which the question of punitive damages is to be determined.

On the contrary, to entitle one to such damages there must be an element of fraud, or malice, or evil intent, or oppression entering into and forming part of the wrongful act. It is in such cases as these that exemplary or punitive damages are awarded -as a punishment for the evil motive or intent with which the act is done, and as an example or warning to others. But where the act, although wrongful in itself, is committed in the honest assertion of a supposed right — or in the discharge of duty, or without any evil or bad intention, there is no ground on which such damages can be awarded. In the Phila., Wilm. and Balt.

Railroad Company vs. Quigley, 21 How., 202, 214 , Mr. Justice Campbell says: ■“ Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascer■tainment-of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious -act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indiffer•ence to civil obligations.” ³⁰⁸ And in the still later case, in the same Court, of Milwaukee, & c., Railroad Co. vs. Arms, et al., 1 Otto, 489 , 493, Mr. Justice Davis said: • “ Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result, of that reckless indifference to-the rights of others which is equivalent to an intentional violation of them. * * * The tort is aggravated by the evrl motive, and on this rests the rule of exemplary damages.” We might multiply the cases on this subject if necessary, all concurring that exemplary damages are awarded as a punishment for the evil motive, or intention with which the unlawful act is done, and as a warning or example to others.

The mere fact, that one is forcibly and deliberately ejected from a railroad car, does not necessarily imply that it was done wantonly, or wilfully, or with a bad motive, although the act may be in itself unlawful. Conceding then that the female plaintiff was wrongfully ejected from the car, the fact that it was forcibly and deliberately done are not the tests by which the plaintiffs’ right to recover punitive damages is to be determined. On the contrary,, before resorting to so extreme a measure, it was but proper that the conductor should have acted deliberately and not hastily or inconsiderately; and if the plaintiff refused to leave the car on being requested to do so, the use of force became absolutely necessary, the only question being whether the force thus used was excessive. The case of the Baltimore and Yorktown Turnpike vs. Boone, 45 Md., 344 , on which the instruction of the Court is based differs widely from the one now before us.

There the company in violation of its charter, had exacted illegal. ³⁰⁹ and excessive fares, and passengers were compelled either to pay the same, or subject themselves to be expelled from the cars. It was under these circumstances, the Court held, that public policy required the Corporation should he liable to the highest measure of damages, for the deliberation and force accompanying its illegal conduct. But there ■are no considerations of public policy that require the application of such a rule in a case like the one now under ■consideration. On the contrary, to entitle the plaintiff to recover punitive damages, according to all the decisions both in this country and in England, the jury must find that the wrongful act was done wantonly, or wilfully, or in the spirit of oppression.

It is the evil motive or intention with which the wrongful act is done, say the Supreme Court, on which rests the rule of punitive damages. (Decided 18th June, 1884.) The Court was wrong therefore in instructing the jury that the plaintiff was entitled to punitive damages, if they should find the wrongful act complained of was deliberately and forcibly done. Judgment reversed, and new trial awarded. Bryan, J., filed the following dissenting opinion: I dissent from the .reversal of this judgment.

I also dissent from the reversal of the judgment in the case of ■John W. Rice, which was decided at the present term on the authority of this case. As the principal question in both cases was identically the same, it is convenient to consider them together. Rice brought suit against the Philadelphia, Wilmington and Baltimore Railroad Company, and recovered judgment. It appears that he purchased a ticket on the thirtieth day ■of January, 1883, at the ticket office of the defendant.

The ticket was in two coupons; one of which shewed that the ³¹⁰ plaintiff was entitled to transportation from Wilmington to Philadelphia, and the other from Philadelphia back to-Wilmington. While he was on his way to Philadelphia,, in one of the defendant’s cars, the conductor of the train tore .off the return coupon and cancelled it by punching. In a moment afterwards the conductor said to the plaintiff, “ I have made a mistake ; I will make it all right; ’’ and then wrote on the back of the cancelled coupon these-words in lead pencil: “ cancelled by mistake ; ” and gave it back to the plaintiff, saying: “it is all right, you can-use the ticket.” On the following day the plaintiff went to the depot in Philadelphia, for the purpose of taking-the early express to Wilmington; the gate-keeper noticed that the ticket had been punched, but on hearing from the plaintiff the explanation of the circumstances, he said: “excuse me, that is all right;” and permitted him to go. through the gate. The plaintiff entered the cars, and was-proceeding on his journey when he was ejected from them by the conductor, who then had charge of the train, and who was a different person from the one who had punched the ticket on the previous day.

It is unnecessary for the present purpose to consider the conflict of testimony about the manner and the circumstances of the ejection. The plaintiff offered evidence to the effect that it was violent and brutal; and the testimony on the part of the defendant tended to show that the conductor made the removal without unnecessary force, and because the cancelled ticket had not been marked in the manner required by a regulation of the Eailroad Company. There seems to be no-question in the mind of the Court that the above recited facts, if found by the jury, entitled the plaintiff to a verdict. But the measure of damages has given rise to a. difference of opinion among us.

The Court below instructed the jury both in Bice’s Case and Hoeflich’s, that if they found for the plaintiff (under an instruction previously given) that they “ should award such sum as damages as- ³¹¹ will compensate him (or her) for the injury to his person, feelings, and character arising from the unlawful act of the defendant, and if they believe that said unlawful act