Norfolk & Western Railroad v. Anderson

Lewis, P., (after stating the case) delivered the opinion of the court. In determining whether the judgment is right or not, it is important to observe, in the first place, what the contract between the parties was. Its language is that “ when requested by the conductor at the time this ticket is presented for passage. * * I (the purchaser of the ticket) will sign my name in the presence of the conductor on the back of the highest numbered coupons required for the trip, and will otherwise — 6 — identify myself as the original purchaser of the ticket.” This means that the person presenting the ticket will identify himself when identification is required, first, by signing his name, and, secondly, in any other manner that may be reasonably required. It is not that he will sign his name if that particular mode of identification is requested by the conductor, but that he will do so whenever called upon by the conductor to identify himself. This was evidently the intention of the parties, and the words employed are not inconsistent with such intention. Assuming this to be the true construction of the contract, we are of opinion that the plaintift is entitled to recover. As was said in R., F. & P. R. R. Co. v. Ashby, 79 Va., 130, “ the carrier’s duty is to carry his passengers safely and respectfully, and if he entrusts this duty to his servants, the law holds him responsible for the manner in which they execute the trust.” The same principle has been repeatedly affirmed by the Supreme Court of the United States. “A common carrier,” says that court, “ undertakes absolutely to protect his passengers against the misconduct of his own servants engaged in executing the contract.,” and “whether the act of the servant be one of omission or commission, whether negligent or fraudulent, if it be done in the course of his employment, the master is liable.” Steamboat Co. v. Brockett, 121 U. S., 637. The defendant relies on the case of N. & W. R. R. Co. v. Wysor, 82 Va., 250; but that ease widely differs from the present. There the plaintiff, in wilful violation of the contract, tendered detached coupons for his passage, which the conductor refused to receive. The evidence, moreover, showed that he got on the train with the expectation and intention of being ejected therefrom, with a view of making a case for damages, and this court justly held he was not entitled to recover. But here no such circumstances exist, nor is there anything upon which to impute bad faith to the plaintiff. When his — 7 — oiler to identify himself in the only mode specifically stipulated for was rejected, he was warranted in refusing to do more. Had he been permitted to sign his name, aud had the conductor, upon examining the signature, beeu left in doubt as to the sufficiency of the evidence, he might then have required any additional evidence of identity that was reasonable. But when he arbitrarily refused to receive the evidence, which it was his primary duty to have accepted, accompanying his refusal, as he did, with gross insult to the plaintiff, which was afterwards repeated at Suffolk, he had no right to require the plaintiff to “otherwise identify” himself. He had no right, in other words, to repudiate a part of the contract, and to require the plaintiff to comply with the residue. And it makes no difference that he declared himself “ not a judge of handwriting.” For the purposes of a case like this, at least, the company in effect contracted that he was. At all events, it cannot now escape liability on the ground that he was not, for the contract must be taken in all its parts, and effect given to the whole. There was, moreover, a further violation of the contract in taking up the ticket, inasmuch as the only stipulated ground of forfeiture was the presentation of the ticket for passage by a person other than the original purchaser thereof. And not only this, but after the circumstances of the caso had been reported to the general passenger agent, the alter ego, of the company, he refused to return the ticket, thus ratifying what had been done. We concur, therefore, in the view that the jury were not only warranted in finding for the plaintiff, but that the case is a proper one for exemplary damages. The conduct of the conductor was not only illegal, but may be justly termed wanton and malicious. “Every unlawful act,” said the court, speaking by Judge Staples, in Borland v. Barrett, 76 Va., 128, “done wilfully or purposely, to the injury of another, upon slight provocation, is as against such person malicious, and the law — 8 — so presumes.” And the subsequent ratification by the company of the acts complained of brings the case within the principle holding a corporation liable in exemplary danmges for the misconduct of its agents. Lake Shore, &c., Railway Co. v. Prentice, 147, U. S., 101. It is true the plaintiff was not forcibly ejected, but he was told by the conductor, after his ticket had been taken up, that he must get off the train, and what was done amounted, in contemplation of law, to an expulsion, though no force to remove him was exerted. His leaving the train as he did was induced by the deceptive promise of the conductor to give him the receipt he demanded, and it does not, therefore, lie in the company’s mouth to say he was not expelled from, but voluntarily left, the train. It cannot, in other words, take advantage of the fraud of its own agent. The next question, then, is whether the damages given by the jury are excessive. That the sum awarded is greater than the actual damage suffered by the plaintiff is not disputed. But it is to be considered that when exemplary damages are allowed, the object of the law is not only to recompense the sufferer, but to punish the offender, and thereby to deter others from like offending. In Day v. Woodworth, 13 How., 363, the the court said: “It is a well-established principle of the common law that in actions of trespass and in all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence, rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers, but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.” And in numerous subsequent decisions of the same court the rule has been declared that whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or — 9 — indignity, the jury are not limited to compensatory damages, but may give such exemplary damages as, in their opinion, are called for by the circumstances of the ease. Philadelphia, &c., Railroad Co. v. Quigley, 21 How., 202; Barry v. Edmunds, 116 U. S., 550; Denver, &c., Railway v. Harris, 122 Id., 597; Lake Shore, &c., Railway Co. v. Prentice, 147 Id., 101. The same doctrine was enforced by this court in Borland v. Barrett, 76 Va., 128. A corporation, like a natural person, may be held liable in exemplarary damages for the act of an agent, where the act is participated in, or authorized, or, as in the present case, ratified by the principal. Lake Shore, &c., Railway Co. v. Prentice, 147 U. S., 101. And as the measure of the defendant’s liability must depend upon the particular circumstances of each case, it is a matter left to the discretion of the jury, whose finding will not be disturbed, unless so out of the way as to evince passion, prejudice, partiality, or corruption in the jury. Borland v. Barrett, 76 Va., 128; Peshine v. Shepperson, 17 Gratt., 472, 488; Farish v. Reigle, 11 Id., 697; Va. Mid. R. R. Co. v. White, 84 Va., 498; Bertha Zinc Co. v. Beach, 88 Id., 303. Referring to this rule in the recent case of Ward v. White, 86 Va., 212, which was an action for assault and battery, it was said: “ The reason for holding parties so tenaciously to the damages found by the jury in personal torts is, that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of the jury, governed by a sense of justice. It is indeed one of the principal causes in which the trial by jury-has originated.” Applying this rule to the circumstances of the present case, the verdict must stand. It is true the recovery is a large' one; but it is not so disproportioned to the injury inflicted and the character of the offence as to “shock the understanding,” or to induce the belief that the jury were influenced by improper — 10 — motives; and when this can be affirmed of a verdict in a case of this sort, it would be an invasion of the province of the jury, and, therefore, an abuse of power on the part of the court, especially an appellate court, to set it aside. It is contended, however, that the circuit court erred at the trial in failing to exclude certain illegal evidence, and that for this error the judgment should be reversed. But there is nothing in this objection. It appears that soon after the occurrences mentioned in the declaration, the plaintiff unsuccessfully attempted to travel on the defendant’s road on the conductor’s receipt for his ticket. After this had been narrated to the jury, the defendant’s counsel objected to the evidence, on the ground that it was not relevant to the case stated in the declaration, and moved to exclude it. The judge ruled that the evidence was illegal, and said he would hear a motion to exclude it at a later state of the proceedings. To this there was no exception, nor was the court’s attention again called to the matter, before the verdict was rendered, and that was a waiver of the objection. Wash. Tel. Co. v. Hobson, 15 Gratt., 122, 138; Page v. Clopton, 30 Id., 415, 429; Danville Bank v. Waddill, 31 Id., 469, 477. This sufficiently disposes of the case, and renders it unnecessary to consider the assignment of error in regard to the instruction. It is enough to say that the case was submitted to the jury in substantial conformity with the views expressed in this opinion, and that the judgment must be affirmed.