to produce it, or by directing the clerk to hold it he could deprive the
other party of the right to use it on the trial. The deposition in the hands of the commissioner is just as much beyond the control of the parties as though the same had been filed in court. When filed in court, the party on whose motion the deposition was taken is not obliged to read the same in evidence unless he so chooses, but he cannot prevent the other party from reading it as part of the latter's case. So when a deposition has been taken before the commissioner, the party moving therein may ignore it,-that is, may refuse to further deal with the deposition on his own behalf,-but he cannot deprive the other party, who participated in the taking thereof, of the right to have the deposition returned into court in order that he may adopt it and read it as part of his evidence. The copy of the deposition taken shows that full opportunity was afforded to plaintiff's counsel to examine the witness at length, and at the beginning of the cross-examination, upon objection being made, that certain questions were not proper in cross-examination, defendant'scounsel stated that all questions not deemed to be proper as matter of cross-examination he should ask the court to receive as testimony on part of the defendant. ·.The witness being thus made, in part at least, a witness for defendant, was thus subjected to cross-examination on part of plaintiff; and, if the opportunity was not availed of to the extent now deemed desirable by counsel, it was not the fault of the witnes!! or of defendant. I am therefore clearly of the opinion that the defendant is entitled to have the deposition in question promptly forwarded to the. court by the commissioner. Not doubting that counsel, on being advised of the views of the court, will forthwith notify the commissioner that he is required to promptly forward the deposition, and that the lat· ter will at once perform the duty which the statute places upon him, no further order in the premises will be made at the present time.
FELL 11. NORTHERN PAC.
(O&rcuU Court, D. North Dakota. November 111, 1890.)
TORTS OJ' SERVANT-EXEMPLARY DAMAGES.
Exemplary damages may be awarded against a master, though the wrong complained of was the act of his servant, not authorized nor ratified by him. The plaintiff bought a ticket, and was told by the agent tbat he could ride on a particular train. The conductor had not been informed of the order to carry, and ejected the plaintiff on a dark night, while the train was running at a dangeroua rate of speed. Beld. that the case was a proper one for exemplary damages.
CARRIERS-ElECTION OF P.lBSENGER-DAM.lGES.
S.un-EVIDENCE OF INJURIES.
The plaintiff having been forced by threats to jump from the train while it waa rapidly on a dark niKht, evidence ia admissible that he at the time afflicted with a rupture. though it was unknown to the conductor, and did not aggravate the injury sustained; the evidence being competent for the purpose of aacertaining tb.e extent of his mental suffering aa an element of damages.
NORTHERN PAC. R. CO.
4. S A M E - D A M A G l t S . ·
In suc\l case, there is no error in refusing an instruction to find for the defendant if the conductor told the plain tiff, before the train started, that he could not ride on it, and the latter refused to get off, and was afterwards expelled without unnecessary force; the instruction assuming that the expulsion waa a\ a proper time and place, and there being evidence to the contrary.
On motion for a new trial.
S. L. Glwspell, for plaintiff. John S. Watson, for defendant.
THOMAS, J. This is an action for personal injuries, alleged to have been sustained by the plaintiff by reason of being expelled from defend. ant's freight train. The action was tried by a jury, before Judge ROSE, at Jamestown, in the district court in and for the sixth judicial district of the territory of Dakota, at the April term of that court, 1889. The plaintiff had a verdict for $600. A motion for a new trial was made by the defendant in said territorial court, which was pending at the time the state of North Dakota, including all of said sixth judicial district, was admitted into the Union. The judge of the trial court settled a bill of exceptions. Upon the admission of said state, this action was transferred to this court upon the request of the defendant, pursuant to section 23, c. 180, Laws 1889, (25 St. at Large, pp. 676-683.) On the 8th day of October, 1890, said motion was brought on.to be heard before this court, sitting at Fargo, in the south-eastern division of the district. It appears from the bill of exceptions that on the evening of the 26th day of July, 1888, the plaintiff applied to the defendant's ticket agent at Eldridge station, on defendant's line of road, in the territory of Dakota, for a ticket to ride on freight train No. 16, from that station to Jamestown, a station a few miles east of Eldridge, and also on the line of its road. Said freight train was due at Eldridge at 11 :40 that even· ing. Prior to that day said train was not allowed to carry passengers. The ticket agent, in answer to said application, told the plaintiff' that he would sell him a ticket for passage on train No. 16, as requested, and at the same time showed plaintiff an order of the company permitting passengers to ride on that train, which had been issued that day; and the plaintiff then and there purchased of said agent a first-class ticket for passage on said freight train No. 16 from Eldridge to Jamestown, aforesaid, and paid therefor 30 cents, the regular price. Said freight train was run in two sections on that evening. The agent flagged the first section, and after it had stopped the plaintiff showed the conductor thereof his ticket, and the ticket agent told the conductor that he had orders to sell tickets for that train, and showed the conductor thereof tpe order. The conductor thereupon told the plaintiff, .as he claims, that the first section did not carry passengers, but that the second section
would carry passengers. The plaintiff did not attempt to get ontotbe caboose of the first section. In tbis' reRpect the conductor of the first section and the brakeman testify tbat tbe plaintiff did get onto tbe caboose of the first section, and, wben told that be could not ride thereon, the plaintiff got out and walked back to tbe station. The conductoralso denies telling him tbat he could ride on the second section. Tbe ticket agent tbenflagged tbe second section, as it came up about five minutes after tbe first section bad passed, and the plaintiff, as he claims, at 'once walked back to the caboose attached to the second section, tben standing some distance west of the station. As he walked up to tbe caboose, some one called out therefrom: "What do you want?!) Plaintiff replied that he wanted to ride to Jamestown, and thereupon stepped upon the platform of the caboose, and found tbe door locked. The train started while plaintiff was standing upon the platform, and was in mothe conductor opened the door of the caboose. The plaintiff passed into the caboose wben the door was opened, and,showed the conductorbis ticket,and the conductor thereupon said:. '''That ticket is not good on this train. You willbave to get off." The plaintiff tben told the conductor' that be bad that ticket to ride on that train, and'that be was told by the agent that it was good on that train. The conductor then said to plaintiff: "By God, you must get off this train; you have got to get off this train.!) Plai,ntiff then turned around and picked up his carpenter tools, wbich he bad laid on the seat, and started towards tbe door, and said to the conductor: "1 can't get off this train." The conductortbereupon said: "By God, you've got to get off." By that time plaintiff was out on the pla.tform, and saw that the train was running very fast, and again told the conductor tbat he could not get off, and the conductor said: "By God, you bave got to get off, and if yon don't, I will help you off." The plaintiff then stepped down onto the lower step of the platform. The conductor followed him there, and put his hand on plaintiff's shoulder, and said: "If you don't get off, I will throwyou off." ,Plaintiff said: "Don't throw or push me off, I had rather jump." The plaintiff thereupon jumped off and struck on his feet, and then fell on his head and shoulders. Plaintiff had in his arms and pockets a saw, plane, hammer, and other tools at the time he jumped from tbe' train. The train was in motion, and running very fa.'!t, as plaintiff claims, and was at that time about 800 feet from the place where plaintiff got onto the caboose, and it was quite dark at the time. The plaintiff picked up his tools, and walked back to the ticket office with some difficulty , and remained at the hotel near the ticket officeuntil the next morning. Plaintiff suffered pain in one of his legs in the fall, and felt faint, and had some difficulty in walking back to the station. The pain continued more or less for three weeks, during which time he did no work. He suffered no permanent injury, and did not call a physician. He was delayed about 12 hours at Eldridge. The conductor and officials of the train give a somewhat different version of this affair. The defendant gave evidence tending to show that the conductor of the second section notified the plaintiff that he could not ride
on- No. 16 just before the tr;:Lin started up. In this respecttbe c.onductor testified: .I : I · . . "I was intbe cupqlal·anl;l. I thought he was a railroad I stepped down and him what .he had to ride on, and he show.ed me a tickt,t. I don't remember whether I took the ticket in my hand ornot, and I tuld him we did not carry passengers, and he tried to explain to me that we did, and while I 'was talking to him w!'l started up." of Defendant also gave. evidence tending to show that the the first section told plaintiff that he could not ride on the second sechad been notified, prior to at Eldridge, tion. Neither of the new order. '. .. The defenciant contends that the court erred in refusiIlgto give ceron the evidence given on defendant's behalf, to tain instructions, the effect that plaintiff was notified, prior to the starting of the train, that he could not rille on it. After a careful examination of the evidence and the instruCtions asked and refused, I am of the opinion that none of the instructions refused distinctly raise the poi l1 t suggested. They all assume some material fact neither admitted nor proved, which warranted the rejection by the trial court of the instructions. The folwill illustrat.e them: "(2) If you believe from the evidence that tbeplaintiff was advised or informed by theconcll,lctor before the train left the station at Eldridge that he, the plaintiff, would not be allowed to ride on the said train, and that the plaintiff neglected or refused' to leave the train, and was afterwards expelled by the conductor without unnecessary force or violence, then your verdict must be for the defendant., (3) If you find from the evidence that the plaintiff purchased ,from the defendant's ticket agent at Eldridge a ticket which entitled him, plaintiff, to transportation frum said statlou to Jamestown, and that said ticket agent adVised him,. plaintiff, that he could ride upon the freight train then about to arrive at said station, and that plaintiff, pursuant to saId advice, thereupon mounted the caboose attached to said freight train, train started from Eland if you shall also find that if, before said dridge station, the conductor, or any other agent or servant of the dl'fendant, advised or informed the plaintiff that he would not be allowed to ride IIpon said train, then the plaintiff had no right to rely upon the information given by the ticket agent; and if he chose, under such circumstanct's, so to do, and was afterwards expellpd from the train Without unnecessary force or violence, he can not recover in this acLlon." The first instruction above quoted assumes that the undisputedevidence clearly shows that the plaintiff was expelled from the. train at a proper time and place. The givinj:t of this im,truction would evidently warrant the jury. to find for the defendant, although it appeared from the evidence that the plaintiff was ejected while the train was running at a dangerous rate of speed for him to jump, and at a dangerous place, and in a dark night., The second instruction in effect required the court to charge the j1;lrythat, although the plaintiff had bought his ticket upon the assurance of the ticket agent that he could ride on that train, and had paid his money therefor, relying on such assurance as a part of his contract, if any othElr servant of the company had informed him that he could not ride on that train beiore he entered the car, the conductor
would be justified in ejecting him. Such a proposition cannot be maintained. The only evidence contained in the bill of exceptions tending to show that any agent or servant of the company except the conductor of the second section informed the plaintiff' that he could not ride on the second section was -the evidence to the effect that the conductor of the first section had so informed him. This conductor had seen plaintiff's ticket, and had been told by the ticket agent that an order had been issued permitting passengers to ride on No. 16, and the order was shown to that conductor. He was in possession of all the facts, and had no right to refuse plaintiff admission to his car, and had no right to prevent plaintiff from taking passage on the second section, over which he does not appear to have had any control, and notice from him to the plaintiff, under the circumstances disclosed by the evidence, would not justify the second conductorin excluding him from his carj at least that evidence would not justify the court in giving the instructions above quoted, or either of them. The defendant also contends that the court erred in refusing to instruct the jury that, under the evidence introduced, the plaintiff was not entitled to recover exemplary damages, and in instructing them that they might allow such in case they found that the conductor expelled plaintiff from the train in a wanton, gross, malicious, and outrageous manner. At the time of the trial of this action, the following section of our Civil Code was in force in the territory of Dakota, and is now the law of this state: Sec. 19M? Civil Code. "In any action for the breach of an obligation not arising from contract. where the defendant has been guilty of oppression. fraud. or malice. actual or presumed. the jury, in addition to the actnal damages, may give damages for the sake of example. and by way of punishing the defendant. " Whatever conflict existed prior to the adoption of this statute on the question of exemplary damages, the rule that they may be allowed in cases coming within the terms of this statute is settled in this state, and such was the rule applicable to proper cases when this case was tried in the territorial court. And that the rule is applicable to corporations in cases where there has been some willful misconduct, or that entire want of care which raises the presumption of a conscious indifference to consequences, is settled by the supreme court of the United States in Railway Co. v. Arms, 91 U. S. 489-495. These rules are not questioned in this case, but the contention is that the act complained of must have been that of the principal. and not of the mere agent or servant. It is insisted that that fact must be shown, or it must appear that the act of the servant was authorized or ratified by the principal. The rule contended for by defendant's counsel has been laid down in a great number of decided cases, but the rule !las been criticised and abandoned in other cases. There was evidence in this case from which the jury were justified in finding that there was willful misconduct on the part of the conductor in ejecting plaintiff from the train, and that he manifested a reckless indifference to the rights of the plaintiff, and the consequencell that
FELL V. NORTHERN PAC. R. CO.
might result to him in ejecting him from the platform of the car while the train was moving rapidly, and in a dark night, knowing not how or where he would strike or fall. He was in the employ of the defendant, and in charge of its train, and was acting within the scope of his authority. The defendant's employment afforded the condnctor the means or opportunity, which hensed, while so employed, in committing a willful injury. and his willful misconduct mnst be attributable to the company for which he acted, though it did not authorize the wrongful act or ratify it. Upon the facts and circumstances of this case, I think the learned judge was justified in instructing the jury that they were at liberty to allow exemplary damages. ld. 489; Galiena v. Railroad Co., 13 Fed. Rep. 117-124; Barry v: Edmunds, 116 U. S. 550-563, 6 Sup. Ct. Rep. 501i Malloy v. Bennett, 15 Fed. Rep. 371-374; Sh1tmacher v. Railroad Co., 39 Fed. Rep. 175; Manufacturing CO. v. Boyce, 13 Pac. Rep. 609, and cases cited on page 610. The next alleged error relates to the admission of evidence as to the plaintiff's physical condition at the time he was ejected from the car. The following question was propounded to the plaintiff by his attorney in his examination in chief: "You may state whether or not at the time of this occurrence you were suffering from any serious bodily infirmity. " This question was objected to as incompetent, irrelevant, and rial, and inadmissible under the pleadings, and for the further reason that it had not been shown that such disability, if any there existed, was known to the defendant or any of its servants. The objection was overruled, and the evidence admitted as going to the point of his mental suffering occasioned by the threat to put him off, and fearing the quences of his jumping and alighting from the train. To this ruling the defendant excepted. The plaintiff then testified that he had been afllicted with a rupture since the spring of 1864; that it is of a very serious nature; that it interfered with his work; that he, was unable to wear a truss; unusual exertion has an effect on the malady,-the more exertion the more irritation; that he was not able to perform the ordinary work of a carpenter; that he could not.jump from the train because he was in fear of being hurt; but that he did jump for the reason that· he had rather jump than be pushed off. The rupture did not contribute to his inability to work during the three weeks. It was not aggravated or in any way irritated by the jumping from the train on that occasion. I think the evidence was competent for the purpose for which it was admitted. The mental anguish arising from the nature or character of the wrong is a proper element of compensatory damages. M.cKinley v. Railroad Co.,44 Iowa, 314. The conductor put the plaintiff in fear by compelling him to accept the alternative of jumping from the platform or being pushed off in the clark, while the train was moving very fast, as it appeared to the plaintiff, and 'his fear must naturally have been greatly intensified by reason of his physical condition, and it was proper to put the jury in possession of all the facts relating to his physical condition, for the purpose of ascertaining the extent of his mental suffering as an element of damage. Railway Co. v. Fixe, 11 Amer. & Eng. R. Cas. ,
f09. That the conductor did not know of the rupture is immate,rial. The plaintiff was rightfully on that train, and had a legal right to be carried according to his contract,without interference, so .long as he conducted himself in a proper mannerjand when the defendant, through its conductor, trespassed upon his rights, and expelled him from the train, as shown by plaintiff's testimony, to which the jury had a right to give credit, it became liable for the natural and legitimate consequences of the willful and unlawful act. If the plaintiff had sustained physical injury by reason of the ejection, which became seriously aggravated by reason of the rupture, the defendant could not claim immunity for the aggravated result because it did not know of the physical condition of the plaintiff. Railway Co. v. Buck, 18 Amer. & Eng. R. Cas. 234. Upon prinoiple the same rule must apply in a case like this, where the mental injury and anguish was intensified and aggravated by the physical condition, though not known to the party guilty of willful wrong. It is also claimed that the court erred in admitting the evidence of the surgeon, who testified under objection, that he had some two years prior to the trial examined the plaintiff, and found that he was then suffering from a permanent rupture, which would interfere with physical exercise on the part of the plaintiff; that it would interfere with physical exertion in the manner and to the extent that it, was Hable to produce strangulated hernia, and the consequences following might reach considerable ways. This evidence was practically corroborative of the testimony of the plaintiff on the same point. It is evident that it would or might require great physical exertion in jumping from that moving train at the time and place, or in the shock resulting from the jump or fall to the ground. I see no objection to the testimony. The case of HUbbard v. Railroad Co., (Mich.) 18 Amer. & Eng. R. Cas. 338, cited by defendant, is not in point, and does not sustain the objection to the testimony of the surgeon. The last point made and urged by the defendant in this motion is that the verdict should be set aside for the reason that the damages are excessive. Upon the well-settled rules for the guidance of courts on this question, I do not think I would be justified in setting this verdict aside on that ground. I cannot see that this verdict is so excessive or outrageous with reference to all the circumstances of the case as to demonstrate that the jury have acted against the rules of law, or have suffered their pflssions, their prejudices, or their perverse disregard of justice to misdirect them. Barry v. Edmunds, 116 U. S. 565, 6 Sup. Ct. Rep. 501; Railroad Co. v. Fixe, 11 Amer. & Eng. R. Cas. 109; Railroad Co. v. Myrtle, 51 Ind. 566. 'fhe case was fairly submiited to the jury, and, finding no error, the motion for a new trial is denied, and judgment for the plaintiff is ordered accordingly.
· UNITED ST.A.TES 'V. GEORGI. '
UNITED STATES tI. GEORGI
(D£8&nlctOo'Urt, S. D.New York. Ootober 28,1890.)
CUSTOMS '1'Y-REV. ST.
The liquidation of duties by the proper' custom.s. oftioers1ixes for the time being the amount of duties to which the good!! are "su.bject by law, " under Rev. St. §§ 29M, 2970·. On a bond conditioned for withdrawal of the goods within olleyear. "on :payment of the duties and charges to which they may be subject by law at the tiIpe of such \l\jithdrawal." that a payment within the, year of the. amount of duti.es as thus was a.discharge of the bond1and that, upon a subsequent reliquidation at a hIgher rate of duty, no recovery COU d be ha.d upon the'bond against the surety, the importer -yvould. be liable in a dUterent action for the additional amount.
U 2964, 2970.
Edward Mitche'a, ·U. a.Atty., J.T. Van 1lensselaer, Asst. U. S. Atty. HarflCV for defendants.
BRowN,J.' This suit was brought upon a wareho.use bond to recover a balanc",. of $98.25, alleged to he due upon an importation of goods by defendant Georgi in March, 1888. The bond was executed by Georgi as principal, and by the other. defendant as surety. The conit sballbe voi<i if the importer shall, dition of the bO)1d provides within one Year from .the date of importation, withdraw the merchandise, "on paYOlE/nt of the duties and charges to which it may be subject by law the [time of such withdrawal." The amount of duties estimated a,t .the ti:me of the entry was $1,150. On appraisementand liqthe. duties were liquidated at uidation, completed May 28, $1,184.15. T4e gOOds were withdrawn in three different installments in April and May, 1888, and payments on account of the duties made at each withdrawal. On the l6th of June, 1888, the sum of $34.15 was pai<i, which made the full amount of$I,184.15, and the bond was marked "Canceled" by the clerk in the ordinary course of .business at the custom-house, and the account supposed to be closed and settled. A protest and notice of appeal had, however, been duly served upon the collector by the importer, claiming a lower rate of duty. These were never transmHted to the secretary of the treasury for his action thereon, but the collector having directed a further consideration of the matter by the the same deputy assistant appraiser who ,had previously examined the goods reported, in August, 1888, a different·classification of the goods with a higher rate of duty, and a reliquidation of the duties was accordingly made on Oc.tober 6, 1888, fixing the dubeing $98.40 in excess of the original liquidation, to ties at recover which this suit was brought. No notice was given to the importer of the reliquidation, or of any action upon his protest and appeal. of the reliquidation until more than 10 days afterwa;rdl;l,;:-:too late to make any protest or appeal upon the reliquidation. trial the assistantapprail:ier,testified that, although he had none On
At Law.M'Otion for new trial.