W. W. Boyer & Co. v. Coxen

Boyd, J., delivered the opinion of the Court. The question presented by this record for our consideration is whether there was any evidence legally sufficient to justify an instruction given the jury as to punitive or exemplary damages. After referring to compensatory damages, the prayer concluded as follows : “And if they find that the act of the defendants’ servant was wanton and attended with reckless violence, they also in their discretion may allow punitive or exemplary damages.” That was specially excepted to by the defendants, but was granted by the Court. It was argued by the appellants that no damages could be allowed, because they were not liable at all for the acts of their servant which caused the injuries complained of, as he was not in the discharge of the duties for which he was employed when he made the alleged assault on the appellee, but that question was submitted to the jury by the first prayer of the plaintiff and the second and third of the defendants, and it was determined against the defendants.

There was no prayer offered by the defendants as to the legal sufficiency of the evidence on that point and no special exception was taken on that ground to the prayer of the plaintiff. We must therefore assume that there was such evidence as to authorize its submission to the jury, and it is not before us for review. Some Courts of high authority have adopted the rule that a principal is only liable in punitive damages for the act of his agent when the former has either given express authority to the agent or subsequently ratified his act, or was guilty of some misconduct himself in connection with it. When it is remembered that such damages are allowed by way of pun ³⁶⁸ ishment to the offender and as a warning to others, the doctrine sanctioned by those Courts cannot be said to be wholly without foundation to base it upon, for it is at least unusual to punish one person for the act of another, unless the former did either authorize or ratify it or take some part himself in what is complained of.

But there are a number of instances in which the principal may be even criminally liable for the acts of his agent, for some of which see 1 Ency. of Law (2 ed.), 1161, n. 2, and in this State we have not followed the doctrine held by the Courts above referred to in civil suits. Although the rule adopted here may in some cases result in hardship to the principal, yet, if carefully applied, there is less danger of injustice in enforcing it, in proper cases, than in denying it in all cases unless the principal has actually participated in the wrong done by his agent or servant or authorized or ratified it. Any liability of the master for a tort of his servant is dependent upon the fact that the servant was acting at the time in the course of his master’s service, and for his benefit, within the scope of his employment. The master selects him for that service and knows, or ought to know, what sort of a person he is investing with authority to act for him.

The servant is acting for his master when the wrong is done — it is in contemplation of law the act of the master. In a great many cases, a judgment against the servant would be of no value to the injured one and no punishment to the wrong-doer, as it could not be collected. Every character of business, of any considerable proportions, is for the most part conducted through agents and servants, and if the principal or master cannot be held responsible in punitive damages, it would in many, perhaps in most actions of torts, be equivalent to abolishing that character of damages, if he is to be relieved by reason of the fact that the act complained of was done by the servant, and not by him individually. This Court has therefore followed the rule that the master is not exempted from the liability for such damages merely because the act complained of was done by a servant, and not by the master himself, and in many cases exemplary damages have been allowed against the master ³⁶⁹ for acts done by the servant, without express authority from the former or ratification by him having been shown.

In this case the jury was required to find that the agent, McKewen, was acting in the discharge of his duty for which he was employed, when he made the assault complained of, before it could render a verdict for the plaintiff, and, having so found, his principal was responsible in punitive damages, provided the facts were such as would have warranted that kind of damages, if the agent was being sued. It therefore becomes necessary to see what the record discloses with reference to the character of the assault alleged to have been made on the plaintiff, and, in passing on this prayer, we must accept the testimony offered by the plaintiff as true. Coxen went to market with a load of peas which a commission merchant, named Koppelman, examined and accepted. He directed Coxen to take them to the packing-house of the defendants.

After waiting there for two or three hours for his turn to deliver the peas, he gave a ticket which he had received from Koppelman to