McGehee v. McCarley

PARLANGE, District Judge (after stating the facts as above). It appears to v. that the gravamen of the complaint of the plaintiffs in error consists of the alleged invalidity of the appointment of the administrator who brought this suit, the refusal of the trial court to direct a verdict against the plaintiff below, the refusal to give a special charge concerning the good character of the depot agent charged with the assault upon the mother of the decedent, and the refusal to restrict the jury to compensatory damages. As to the first three of those matters, we are of opinion that the lower court did not err. The appointment of the administrator should not have been inquired into collaterally in this case. The court which appointed him had general probate jurisdiction. It has not been shown that a final determination in this cause, as between McCarley, suing as administrator, and the plaintiffs in error, would not be res judicata, and a complete protection against another suit for the same cause of action. This protection is all the interest which the plaintiffs in error have in the point. The lower court did not err in refusing to direct a verdict in favor of the defendants below. If it be true that the depot agent, by making an assault upon the mother of the child, so terrified the child that .she ran out upon the track, and that there, because of her fright and' the circumstances then surrounding her., she .was run over and killed: [465] by the train, we see no reason why the plaintiff below should not recover. Again, the alleged failure to provide proper and sufficient lights, whether the same be considered as an independent cause for recovery, or as a circumstance in the matter of the assault upon the mother, and the consequent fright and bewilderment of the child, was also a question for the jury. We therefore conclude that a direction to the jury to find for the defendants below would have been improper and erroneous. It is clear that the special charge concerning the good character of the depot agent was properly refused. The defendants below had the full benefit of that evidence. It seems to have been admitted and heard without objection, and the judge charged the jury that the character of the depot agent was conceded to be good. Even if it were true, as contended on behalf of the plaintiffs in error, that the character of the depot agent, was admissible in this case, it would not follow that the special charge should have been given. This charge required proof of the assault beyond a reasonable doubt. It went even beyond this, and required the jury to find against the plaintiff below on the question of the assault, if the character evidence generated in the minds of the jury any doubt or uncertainty. But a majority of this court finds material error in this cause, resulting from the failure of the trial court to charge the jury, as the defendants below requested, that only compensatory, and not punitive, damages were recoverable in the case. It is plain to v. that under the doctrine of Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, no punitive damages could be recovered in this case. It is not claimed that the corporation ever authorized or ratified the alleged negligence or assault. While the corporation may be compelled to make compensation for the tortious act of its servant committed in the scope of his employment, even if the act be willful and wanton, yet, if the corporation be itself innocent, it cannot be punished by the infliction of vindictive damages. See circuit court of appeals, Seventh circuit, in Railway Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822. We find nothing in the statute law of Alabama which would require a departure from the doctrine announced in Railway Co. v. Prentice, supra. On the contrary, we find that the supreme court of Alabama, in construing the very statute under which this action was brought (Code Ala. 1886, § 2588), said that the damages recoverable under that statute are compensatory, and not punitive. Williams v. Railroad Co., 91 Ala. 635, 9 South. 77. We are clear that the judgment must be reversed because of the error above stated. It is ordered that the judgment of the lower court be reversed, and that this cause be remanded to that court, with the direction to grant a new trial.