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Mullen v. Stricker.

use, which would support an implication of grant, where the dominant estate is first sold, will not support an implication of reservation where the servient estate is first sold.

What we hold is, that the law of implied grants and implied reservations, based upon necessity or use alone, should not be applied to easements for light and air over the premises of another in any case. In our view, therefore, the law of the present case is not in the least varied by the fact that the dominant estate was conveyed first, or by the fact that both lots were sold at the same time. It seems to us that this doctrine of easements in light and air, founded upon sheer necessity and convenience, like the kindred doctrine of "ancient windows," or prescriptive right to light and air by long user, is wholly unsuited to our condition, and is not in accordance with the common understanding of the community. Both doctrines are based upon similar reasons and considerations, and both should stand or fall together. They are unsuited to a country like ours, where real estate is constantly and rapidly appreciating, and being subjected to new and more costly forms of improvement, and where it so frequently changes owners as almost to become a matter of merchandise. In cases of cheap and temporary buildings, the application of the doctrine would be attended with great uncertainty, and be a fruitful source of litigation. It would, moreover, in many cases, be a perpetual incumbrance upon the servient estate, and operate as a veto upon improvements in our towns and cities. It will be safer, we think, and more likely to subserve the ends of justice and public good, to leave the parties, on questions of light and air, to the boundary lines they name, and the terms they express in their deeds and contracts.

We know that the authorities on this subject are not uniform; but we believe the weight of American decisions are in accordance with the opinion here expressed. See Maynard v. Esher, 17 Penn. St. 222; Haverstick v. Sipe, 33 id. 368, 371; Dodd v. Burchell, 1 H. & C. 112; Myers v. Gimmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. S. C. 316; Collier v. Pierce, 7 Gray, 18.

In Haverstick v. Sipe the court hold, that the grant of an easement for light and air is not implied from the fact that such a privilege has been long enjoyed, and that a contract for such privilege is not implied, on the sale of a house and lot, from the character of improvements on the lot sold and the adjoining lots. The court say: "There is a sort of necessity for such an implication

The Atlantic & Great Western Railway Company v. Dunn. relative to other apparent easements, such as roads and alleys, in order to account for a use of another man's land, that would otherwise be a wrongful encroachment; and the implication is easily framed or defined, for it appears on the ground. But how can we define an easement for light and air by implication, without arresting all change in the style of buildings, all enjoyment of a man's house, according to the demands of a growing or improving family? A purchaser of a house in a crowded town never supposes that his neighbor will have a right to prevent him from changing the form of it according to his taste."

We fully concur in the opinion thus expressed, and in the reasoning upon which it is based.

Judgment reversed, and cause remanded for a new trial.

THE ATLANTIC & GREAT WESTERN RAILWAY COMPANY, plaintiff in error, v DUNN.

(19 Ohio, St. 162.)

Corporations - liability to exemplary damages

A corporation is liable to exemplary or punitive damages for such acts, done by its agents or servants, acting within the scope of their employment, as would, if done by an individual acting for himself, render him liable for such damages.

THIS was an action to recover damages suffered by plaintiff defendant in error here- by reason of being ejected from the cars of defendant, plaintiff in error here.

The plaintiff alleged and introduced evidence tending to prove that he purchased at Cleveland a ticket for a passage over defendant's road, from that place to Meadville. That, shortly after leaving Cleveland, the conductor of the train took his ticket, with those of the other passengers. That afterward, and when the train had reached a point about thirty miles from Meadville, he again demanded his ticket, and, after refusal, stopped the train in an uninhabited part of the country, and at about the hour of midnight, and refusing to allow him to ride any further, forcibly ejected him from the car and left him.

The Atlantic & Great Western Railway Company ▼. Dunn.

The defendant denied, and attempted to prove that the plaintiff only bought a ticket from Cleveland to Warren, and that, after reaching Warren, the plaintiff sought, by misrepresentations to the conductor, to fraudulently obtain passage to Meadville, and that the conductor, on his refusing to produce a ticket or pay the fare to Meadville, stopped the train and requested the plaintiff to leave the cars, as he was required to do by the rules of the company; but that he used no violence or insulting language.

The judge charged the jury that if the plaintiff purchased a ticket from Cleveland to Meadville, and gave it up to the conductor, and the conductor ordered him to leave the car, honestly supposing that he had not paid his fare beyond Warren, using no personal violence or unnecessary severity in setting him off, the plaintiff was still entitled to recover for loss of time, expenses and inconveniences suffered by him; but that, if the conductor treated him in an insolent and insulting manner, they might go further, and give him in addition such damages as they might think proper to compensate him for injuries to his sensibilities; and also, that in case they found that the conductor had been insulting, they might allow, in addition to the above, a sum sufficient to cover his reasonable attorney's and counsel's fees in the case. The jury found for the plaintiff, assessing his damages at $125.

The defendant excepted to the charge and assigned it as error

Ranney & Tyler, for plaintiff in error.

Hutchins & Ingersoll, for defendant in error.

BRINKERHOFF, C. J. The question presented by the record this case is, whether a corporation may be held liable to exemplary or punitive damages for such acts, done by its agents or servants acting within the scope of their employment, as would, if done by an individual acting for himself, render him liable for such damages.

That such damages may, in a proper case, be recovered against an individual party acting for himself, 18 settled in this state by the case of Roberts v. Mason, 10 Ohio St. 277, to which the court below, in its charge to the jury, referred; but whether the same doctrine is, in any case, applicable to corporations acting through their servants or agents, is a question which has not heretofore been

The Atlantic & Great Western Railway Company v. Dunn. determined in this state by the court of last resort. The question is one of much practical importance, both to corporations and the public, with which they deal and come in contact, and we have endeavored to give to it a careful consideration; and, having done so, a majority of the court find ourselves constrained to answer the question in the affirmative.

In our deliberations on the question, and looking to the adjudications of courts outside of Ohio, we find no settled or decidedly preponderant course of decision upon it. The cases are irreconcilably conflicting; and the only aid we can derive from them is through the suggestions of legal principles which they contain.

The foundation principle which governs these cases, it seems to us, is found in the maxim qui facit per alium facit per se. The act of the servant, done within the scope and in the exercise of his employment, is in law the act of the master himself.

And "this legal unity of the principal and agent," says the supreme court of Mississippi, in New Orleans, Jackson and Great Northern R. R. Co. v. Bailey, 40 Miss. 453, "in respect to the wrongful or tortious, as well as the rightful, acts of the agent, done in the course of his employment, is an incident which the law has wisely attached to the relation, from its earliest history."

And Blackstone in his commentaries says: "The master may be frequently a loser by the trust reposed in his servant, but never can be a gainer; he may frequently be answerable for his servant's misbehavior, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong." Vol. 1, p. 431.

In Story on Agency the law is thus stated: "It is a general doctrine of law, that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for the acts or misdeeds of his agent, unless, indeed, he has authorized or coöperated in those acts or misdeeds, yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of, such misconduct, or even if he forbade the acts, or disap

The Atlantic & Great Western Railway Company v. Dunn.

proved of them. In all such cases the rule applies, respondeat superior; and it is founded upon public policy and convenience; for in no other way could there be any safety to third persons ir their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents. In every such case, the principal holds out his agent as competent, and fit to be trusted; and, thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of the agency." § 452.

Now this general doctrine, as to the legal identity of principal and agent, is fundamental. It is established. We are not at liberty to ignore or disregard it; and no one even dreams that it ever will, or ever ought to be, abrogated. And resting as it does on sound principles of public policy and regard for the public convenience and safety, it seems to me to apply with peculiar propriety to corporations which are capable of action only through the medium of agents, and which touch, infringe upon, and come in contact with, individual persons and the public only by means of their agents and servants.

In Philadelphia, Wilmington, and Baltimore R. R. Co. v. Quigley, 21 How. (U. S.) 202, it was held that a railroad corporation might be guilty of acting maliciously, and so render itself liable to damages for the publication of a libel, although it acted, and could act, only through the medium of agents. And CAMPBELL, J., delivering the opinion of the court in that case, says: "The result of the cases is, that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business and of their employment, the corporation is responsible, as an individual is responsible in similar circumstances." And it is furthermore noticeable in that case, that the charge of the circuit court to the jury, to the effect that they were at liberty to award exemplary or punitive damages, was held to be erroneous, solely for the reason as in P., Ft. W. and C. Railroad Co. v. Slusser, decided by us at this term, ante, 157that the facts by which the wrongful act was characterized did not make a proper case for the application of the rule on the subject, had it been done by a natural person.

But, the legal identity of the master and servant being admitted, and the legal consequence — that the master is responsible in damages for the wrongful acts of the servant done within the scope of his employment, the particular question still remains, whether such damages can properly and legally transcend the measure of compenVOL. II.-49

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