Goddard v. Grand Trunk Railway Company.

executing the business of the corporation, should not form exceptions to the rule allowing exemplary damages. On the contrary, we think this is the very class of cases, of all others, where it will do the most good, and where it is most needed. And in this conclusion We are sustained by several of the ablest courts in the country.

In a case in Mississippi, the plaintiff was carried four hundred yards beyond the station where he had told the conductor he wished tc stop; and he requested the conductor to run the train back, but the conductor refused, and told the plaintiff to get off the train or he would carry him to the next station. The plaintiff got off and walked back, carrying his valise in his hand. The plaintiff testified that the conductor's manner toward him was insolent, and the defendants having refused to discharge him, the jury returned a verdict for four thousand five hundred dollars, and the court refused to set it aside. They said the right of the jury to protect the public by punitive damages, and thus prevent these great public blessings from being converted into the most dangerous nuisances, was conclusively settled; and they hoped the verdict would have a salutary influence upon their future management. Railroad, in Error, v. Hurst, 36 Miss. 660.

In New Hampshire, in an action against this identical road, where, through gross carelessness, there was a collision of the pas senger train with a freight train, and the plaintiff was thereby injured, the judge at nisi prius instructed the jury that it was a proper case for exemplary damages; and the full court sustained the ruling, saying it was a subject in which all the traveling public were deeply interested; that railroads had practically monopolized the transportation of passengers on all the principal lines of travel, and there ought to be no lax administration of the law in such cases; and that it would be difficult to suggest a case more loudly calling for an exemplary verdict. [If mere carelessness, however gross, calls loudly for an exemplary verdict, what shall be said of an injury that is willful and grossly insulting?] Hopkins v. At. & St. Lawrence Railroad, 36 N. H. 9.

Judge Redfield, in his very able and useful work on railway: expresses the opinion that there is quite as much necessity for ho'd ing these companies liable to exemplary damages as their agents He says it is difficult to perceive why a passenger, who suffers ir dignity and insult from the conductor of a train, should be compelled to show an actual ratification of the act, in order to subject

Goddard v. Grand Trunk Railway Company.

the company to exemplary damages. 2 Redfield on Railways, 231, note. But if such a ratification is necessary, he thinks the corporation, which is a mere legal entity, inappreciable to sense, should be regarded as always present in the person of its servant, and as directing and ratifying the servant's acts within the scope of his employment, and thus be made responsible for his willful misconduct. 1 Redfield on Railways, 515, et seq.

And in a recent case in Maryland (published since this case has been pending before the law court), a case in all respects very similar to the one we are now considering, the presiding judge was requested to instruct the jury that the plaintiff was not entitled to recover vindictive or punitive damages from the defendants, unless they expressly or impliedly participated in the tortious act, author izing it before or approving it after it was committed; but the presiding justice refused to so instruct the jury, and the full court held that the request was properly rejected; that it was settled that where the injury for which compensation in damages is sought is accompanied by force or malice, the injured party is entitled to recover exemplary damages. Railroad v. Blocher, 27 Md. 277.

But the defendants say that the damages awarded by the jury are excessive, and they move to have the verdict set aside and a new trial granted for that reason. That the verdict in this case is highly punitive, and was so designed by the jury, cannot be doubted; but by whose judgment is it to be measured to determine whether or not it is excessive? What standard shall be used? It is a case of wanton insult and injury to the plaintiff's character and feelings of self-respect, and the damages can be measured by no property standard. It is a case where the judgment will be very much influenced by the estimation in which character, self-respect and freedom from insult are held. To those who set a very low value on character, and think that pride and self-respect exist only to become objects of ridicule and sport, the damages will undoubtedly be considered excessive. It would not be strange if some such persons, measuring the sensibilities of others by their own low standard, should view this verdict with envy, and regret that somebody will not assault and insult them, if such is to be the standard of compensation; while others, who feel that character and self-respect are above all price, more valuable than life itself, even, will regard the verdict as none too large. We repeat, therefore, that it is a case where men's judgments will be likely to differ. And suppose the

Goddard v. Grand Trunk Railway Company.

court is of the opinion that the damages in this case are greater, much greater, even, than they would have awarded, does it therefore follow that the judgment of the court is to be substituted for that of the jury? By no means. It is the wisdom of the law to suppose that the judgment of the jury is more likely to be right than the judgment of the court, for it is to the former and not to the latter that the duty of estimating damages is confided. Unless the damages are so large as to satisfy the court that the verdict was not the result of an honest exercise of judgment, they have no right to set it aside.

A careful examination of the case fails to satisfy us that the jury acted dishonestly, or that they made any mistake in their application of the doctrine of exemplary damages. We have no doubt that the highly punitive character of their verdict is owing to the fact, that, after Jackson's misconduct was known to the defendants, they still retained him in their service. The jury undoubtedly felt that it was due to the plaintiff, and due to every other traveler upon that road, to have him instantly discharged; and that to retain him in his place, and thus shield and protect him against the protestation of the plaintiff, made to the servant himself at the time of the assault, that he would lose his place, was a practical ratification and approval of the servant's conduct, and would be so understood by him and by every other servant on the road.

And when we consider the violent, long-continued, and grossly insulting character of the assault; that it was made upon a person in feeble health, and was accompanied by language so coarse, profane and brutal; that so far as appears it was wholly unprovoked; we confess we are amazed at the conduct of the defendants in not instantly discharging Jackson. Thus to shield and protect him in his insolence, deeply implicated them in his guilt. It was such indifference to the treatment the plaintiff had received, such indifference to the treatment that other travelers might receive, such indifference to the evil influence which such an example would have upon the servants of this and other lines of public travel, that we are not prepared to say the jury acted unwisely in making their verdict highly punitive. We cannot help feeling that if we should interfere and set it aside, our action would be most unfortunate and detrimental to the public interests. On the contrary, if we allow it to stand, we cannot doubt that its influence will be salutary. It will be an impressive lesson to these defendants, and to the mana

Goddard v. Grand Trunk Railway Company.

gers of other lines of public travel, of the risk they incur when they retain in their service servants known to be reckless, ill-mannered, and unfit for their places. And it will encourage those who may suffer insult and violence at the hands of such servants, not to retaliate or attempt to become their own avengers, as is too often lone, but trust to the law and to the courts of justice for the redress of their grievances. It will say to them, be patient and lawabiding, and your redress shall surely come, and in such measure as will not add insult to your previous injury.

On the whole, we cannot doubt that it is best for all concerned that this verdict be allowed to stand.

We see nothing in the rulings or charge of the presiding judge of which the defendants can justly complain. And there is nothing to satisfy us that the jury were prejudiced or unduly biased; or that they made any mistake either as to the facts or the law. Our conclusion, therefore, is, that the exceptions and motion must be overruled. Motions and exceptions overruled.

NOTE. TAPLEY, J., dissented from the foregoing opinion so far as relates to the rule rf damage, and wrote a very elaborate opinion in support of his views.

On the question of the liability of the master for the act of his servant, Judge Tap. LEY cited the following authorities: Dane's Abridgment of American Law, vol. 2, ch. 5. ut. 2; Bacon's Abr., vol. 4, title, "Master and Servant;" 2 Kent's Com. 259; Wright v. Wilcor, 19 Wend. 343; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480; S. C., 2 N. Y. 4:9; Hibbard v. New York and Erie R. R. Co., 15 id. 455; Story's Agency, $$ 452, 456; Hilliard on Torts, ch. 40; Parsons v. Winchell, 5 Cush. 592; Southwick v. Estes, 7 id. 385; Philadelphia, Wilmington and Baltimore R. R. Co. v. Quigley, 21 How. (U. S.) 202; Weed v. Panama R. R. Co., 17 N. Y. 362.

"From an examination of these authorities," the judge adds, "I think it will be found that the principal is liable for the acts of his agents in three classes of cases: 1. When the act is done by previous command of the principal, or is subsequently ratified or adopted by him. This demand may appear from proof of specific directions, or implied from the circumstances of the case. II. When the agent negligently, unskillfully or otherwise improperly performs the duties pertaining to his employment. III. When the act of the agent has caused the breach of a contract, or prevented the performance of an obligation, due from and existing between the principal and a third person."

The case at bar comes within the third class.

That the defendants were not liable to punitive damages: Hagan v. Prov. & W. R. R Co., 3 R. I. 88; Railroad v. Finney, 10 Wis. 388; Turner v. The North Beach and Mission R. R. Co., 34 Cal. 594; Pleasants v. Same Defts., id. 586; Clark v. Newson, 1 Exch. 131: Akerman v. Erie R. R. Co., 32 N. J. 254; McKeon v. Citizens' Railway Co., 12 Mo. 79; Louisville and P. R. R. Co. v. Smith, 2 Duval (Ky.)556; Hill v. New Orleans and Opelousers R R. Co., 11 Louisiana, 292; Keene v. Lezardi, 8 id. 26; Jeffersonville R. R. Co. v. Rogers, S Ind. 1; Detroit Daily Post Co. v. Mc Arthur, 16 Mich. 447; Kline v. Central Pacific R. R. Co., 37 Cal. 400; Amiable Nancy, 3 Wheat. 546; Wardrobe v. California Stage Co,7 Cal. 118 Moody v. McDonald, 4 id. 297: McLellan v. Cumberland Bank, 24 Me. 566; Hopkins v. Atlantic and St. Lawrence R. R. Co., 36 N. H. 1.- REP.

City of Augusta v. North.

CITY OF AUGUSTA V. NORTH.

(57 Me. 392.)

Laxes - when assessed not a "debt" — Constitutional Law.

▲ assessed is not a debt within the meaning of that provision of the tution, which prohibits the legislature from passing any law impair ng the obligation of a contract.

ACTION of assumpsit to collect a sum assessed as taxes on the defdants as commissioners of the Kennebec and Portland Railroad mpany, under act of 1868, chap. 160.

The case appears in the opinion.

W. P. Whitehouse, for plaintiff

J. W. Bradbury and A. Libbey, for defendant.

APPLETON, C. J. By an act approved February 17, 1868, chap. 60, personal estate, held as a trust fund, was made liable to taxation. By virtue of that statute, the tax in question was duly assessed o the defendants as commissioners of the sinking fund of the Kenebec and Portland Railroad Company, and the lists were seasonably committed to the collector for collection.

The act approved March 12, 1869, chap. 63, repeals chap. 160 of the preceding year, under and by virtue of which the tax in dispute was assessed. By section 3, the act took effect when approved.

By section 2, "No proceedings under the act hereby repealed shall be hereafter enforced."

The plaintiffs seek to enforce the collection, notwithstanding the express prohibition contained in section 2, on the ground that a tax duly assessed is a debt within the meaning of the provision of the constitution of this state, art. 1, section 11, which prohibits the legislature from passing any law "impairing the obligation of contracts."

But a tax duly assessed is not a debt. It is an impost levied by the authority of the state upon its citizens. There is no promise on their part to pay. The proceedings throughout are in invitum. A debt is a sum due by express or implied agreement. It was held in Parce v. Boston, 3 Met. 520, that taxes, being neither judgments