BROWN V. MEMPHIS & C. R. CO.
51
A party may apply for a dedimus and cause testimony to be taken, if the dedimus so states, orally; full notice being given to the opposite party, or his attorney, to appear and cross-examine, or to take the testimony by interrogatories and cross-interrogatories, filed and settled by the court. The motion to suppress is overruled. .
BROWN
v.
MEMPHIS
& C. R. Co. April 25, 1881.)
(Circuit Court, W. D. Tennessee.
LADms' CAR. A railroad company may rightfully exclude from the ladies' car. female passenger whose reputation is so notoriously bad as to furnish reasonable grounds to believe that her conduct will be offensive, or whose demeanor at the time is annoying to other passengers; but she cannot be excluded for unchastity not affecting conduct, or fur-. nishing reasonable ground to believe she will misbehave herself in the car, when her demeanor at the time was lady-like and unexceptionable. The charge of the court in this case (5 FED. REP. 499) reaftlrmed on motion for a new trial. CLUSION .FROltl
2.
REASONABLE
QUBSTION OF LAw AND FACT. It is not error for the court, in charging the jury, to say that a given regulation is unreasonable, when the court explains to the jury what what would be the rules of law by which the reasonableness or unreasonableness is to be tested, and leaves to the jury the determination of the facts of the particular case. The ruling in this case on demurrer (4 FED. REP. 37) explained and applied. ABsENCE OF lIALICE-
3. DAltlA(lBS- CoMPENSATORY AND PUNITIVE GooD FAITH IN DISCHARGB OF DUTY.
It was not error to refuse a charge that the absence of malice on the part of the conductor, and good faith in what he regarded as his duty., would deprive the plaintiff of a right to punitive damages, and reduce ber claim to such as are purely compensatory, when the court mOdified it by adding that such facts, if true, should be taken in mitigation of the punitive damages the jury should see proper to give. The jury may protect the public and enforce the legal duty of a carrier of passengers !;iy inflicting punitive damages, where an unreasonable regulation is insisted on by the carrier, and a bonafide belief in the right to enforce the regulation is only a matter of mitigation.
52 4. ANCE-DAMAGES.
FEDEBAL REPORtER. P ASSENGER-RrGHT OF
CARRffiR-WRONGFUL ExCLUSION OF
RESIll'l'-
A passenger about to be wrongfully ejected is not bound to submit without resistance, but it should not be encouraged, as it leads to affrays and turbulence, and is generally useless where there is a determination to remove the passenger from the train. But while such resistance is no defence to the action, if personal injury be inflicted as a result of it the jury may look to the fact of resistance in mitigation of damages. 5. SAME SUBJECT-EXCESSIVE VERDICT.
It is the exclusive province of the jury to affix the damages, and where they are cautioned against excessive verdicts, prejudice, and passion, the court will not disturb their verdict ill a case containing elements of gross personal indignity and injury.
Motion for New Trial. Inge t Chandler,for plaintiff, oited Etting v. Bank, IlWheat" 75; Hallawayv.Armstrong, 30 Miss. 504; Adamsv.POWM'; 48 Miss. 451; Dorseyv. Spirey, 57 Miss. 527; <;Jlymerv. Cameron, 55 Mlss. ;593; Perry v. Clark, 5 495,; Brantley v. Garter. 26 Miss.; Cameron v. Watsonj 40 Miss. 191 ; Oorbin v;Ca.rneron, 31 Miss. 570 j Hanna"v. 32 'Miss. 125; i(cf: (J. Co. Whitjield,4,4 Miss. Eonden, 23 Miss.. 5.24; Pritchard v. Meyers, 13 Mass. (8.&. M.) 532; Barkins v. Winston, 24 431;' "v. Ellis;' 28 Miss. 720 j Bank v. Railroad Co. '53 Miss. 200; Abbrighton: Railroad Co. 38 Miss. 280; Hurst v. Railfddd' do: 86 Miss. 660; 'Bailey v. Railroad Co. 40. 'Miss. 402; v. Stewart, 2 George, 314; Gay v. Simley, 3 George, 309 ; Hams v. Holliday, 4 How. (Miss.) 338 j Watson v. Dickens; 12 S. & M. (Miss.) 608; Woods v. Gibbs, 8 George, 559; Storall v. The Bank, 8 S. & M. (Miss.) 805; Philbrick v. Hdlloway, 6 How. (Miss.) 91; Skinner v. Collier, 4 How. (Miss.) 876; Bohn v. Steam·boat, 7 S. & M. 715; Fox v. Williams, 6 George, 533; Hand v. Grant, 5 S. & M. 508 j McMullen v. Mayo, 8 S. & M. 278; Cogan v. Frisly, 7 George, 178; McGhee v. Harrington, 18 S. & M. 403; Atwood v. Meridith, 8 George, 635; Baringer v. Nesbitt, 1 S. & M. 22; Drake v. Sergent, 7 S. & M. 458 j Routh v. Agricultural, etc., 12 S. & M. 161; Hare v. Sproul, 2 How. (Miss.) 772; Rulon v. Sintals' Heirs, ",' ' . " , j ' . . ,II:', ,',
BROWN V. HEMPHIB .& O. B. 00.
53
Id. 881; Garrett v. Hickman, 41 Miss. 94; Wright v. Alexander, 11 S. & M. 411: Dean .v. Young, 13 S. & M.113; Verchum v. Byron, 7 How. (Miss.) 365: Brantley v. Oarter, 4: Cush. 282: Simpson v. Bowden, 1 C. Page, 526; Wiggin. v. McGimpsy, 13 S. & M. 532: Hill v. Oalvin, 4 How. (Miss.) 231: So. Law Rev. 791, (note;) 1 Greenl. Ev. § 51; Best, Prin. Ev. §§ 61, 64, 65, 229, 249: Peck v. Railroad Co. 10 N. Y. 587; McKinney v. Railroad 00. 44 Iowa, 314; Marquett v. Railroad 00. 33 Iowa, 562; Thomp. on Carriage of Passengers, 302; Railroad 00. v. Vallely, 82 Ohio,. 315 ; Murphyv. Railroad 00. 118 Mass. 228; Halty v. Railroad 00. 21 Iowa, 15; Hutchinson on, Carriers, '473;5 So. Law Rev. (N. S.) "(77;10 Cent. L. J. 41; 9 Cent.L. J. 208; Moore .Y. Railroad Co. 4 Gray, 465; Holmes v. Wakefield, 12 Allen·, 580; Goss v. Goss, 3 Humph. 278; Pettit v. Pettit, 4 Humph.,191: Busby v. Smith, 3 Humph. 406; ,Law".v. Railr.oatiCo.32Iowa, 534; Ross v. Railwqy, 36 Wise, 450; Healing v. Railroad'Oo.l 28 Ohio, Railroad- 00. .11'. Vandiver, 42··Pa. 365;.Kline Railroad, 37Cal. 400: Putnamv.Railroad Go. 55: N; Yd03r Williamson v. Railroad CO· .6Q N..Y. :6.42; . Day v. .owlin, 5 };rich. 520; Applewhite v. Allen, SoHumph. 697.; David v. Bell, Peck, 135; Brison v. Amitta, Peck, 194.:, RauroadCo·. :V. Williams, 55 Ill. 185. . ., .. Humes d; Poston, for defendant, cited Angell on Carriers, 525; Thompson on Carriers, 10,.14; 316,317; Hilliard, on New Trials, 384; 3 Graham & Waterman, New Trials, 1063; Jenks v. Coleman, 2 Sumn. 221; Neits v. Clark, 1 Cliff. 149; Thurston v. Railroad Co. 4 Dillon, 321; Seymour v. Railroad Co. Biss. 146; Ferry.boat v. Gregory, 2 Ben. 239; Day v, Woodward, 13 lIow. 371; Railroad 00. v. Quigley, 21 How. - : Deane v. Pearson, 4 Wall. 605; Railroad 00. v. Owens, 91 U. S. 492; Telegraph 00. v. Eyser, Ide 495; Hall v. De CUiT, 95 U. S. 502; Commonwealth v. Power, 7 Mets. 596: Venton v. Railroad 00. 11 Allen, 104; Gardner v. Mitchell, 6 Pick. 115; Markham v. Brown, 8 N. H. 523; Bennett v. Dut. ton, 10 N. H. 481; Railroad 00. v. Mills, 55 Pa. St. 211; State V. Overton, 4 Zab. 441; Railroad 00. v. Ayres, 29 N. J. Law, 395; Day v. Owen, 5 Mich. 520; BosB v. Railroad 00.
,FBDBBAL' BBPORTER.
86 Wis. 450; Barray v. Steam.boat, 67 N. Y. 301; Jackson v. Hook, 5 Cow. 208; Jackson v. Crosby, 12 John. 854:; Stephens v. Smith, 29 Vt. 153; Barker v. French, 18 Vt. 460; Briggs v. Gleason, 27 Vt. 116; Railroad Co. v. Vandyme, 57 Ind. 576; Railroad Co. v. Anthony, 4:8 Ind. 188; Railroad Co. v. Blotcher, 27 Md. 286; Travers v. Railroad Co. 68 Mo. 423; Lillis v. Railroad Co. 64 Mo. 476; Railroad Co. v. Burke, 53 Miss. 200; Railroad Co. v. Cole, 29 Ohio. St. 126; Levitsky v. John· Bon,35 Cal. 48; Aldrich v. Howard, 7 R. I. 87; Heaton v. Fire Ins. Co. Id. 508; Ma,rtin v. Ehrenfela, 24: Ill. 189; Pal· ace OM CO. 75 Ill. 126; Watts v. Johnston, 4 Texas, 319; Waller v. Graves, 20 Conn. 311; Snowman v. Wardwell, 32 Me. 276; Turnley v.Evanl,3 Humph. 228; Sharp v. Treece, 1 Heisk. 447. The plaintiff, a colored woman, recovered a judgment against the defendant corporation for $8,000 for a wrongful exclusion from the "ladies' car" of one of the defendant's passenger trains. A statement of the defences set up, and the rulings of the court on the demurrer, will be found reported in 4 FED. REP. 37, and a synopsis of the charge of the court on the main question involved is reported in 5 FED. RBP. 499. Besides the exception to the charge as there found, the defendant assigned fonr other grounds for a' new trial, as follows: (1) "That the court, in its charge, substantially said to the jury: That such a regulation was unreasonable; for, that it makes the irresponsible conductors of passenger trains the censors of the virtue of the women of the country, as they would necessarily have to pass upon the chastity or unchastityof the mothers and wives and daughters of the country, and might exclude one and allow the other to pass, as it suited their caprices. . (2) "The court erred in refusing to give the fifth instruction' asked by defendant, in the following language: <If the jury find, from the proofs, that the conduetor, in excluding the plaintiff from the ladies' car, acted in good faith, in discharge of'what'he regarded as his duty, and not maliciously, or wan· tonly. or with unnecessary rudeness, although he may have
BROWN. V. MEMPHIS & C. R. CO.
55
bel;\n mistaken in his duty and violated the rights of the plaintiff, yet she would not be entitled to recover punitive, ..exemplary, or vindictive damages, but such as are purely .compensatory.' But the court refused to give the instruction .as requested, and charged c that such facts should be taken in mitigation of such punitive, exemplary, or vindictive dam.ages as you may think proper to give.' (3) "The court erred in refusing the sixth instruction of defendant, as follows: 'If the jury find, from the testimony, that the conductor was discharging his lawful duty in requir.ing plaintiff to leave the ladies' car, and, in attempting to .overcome her resistance, injured her, then the burden of proof that he used unnecessary force and violence is on the plaintiff to satisfy the jury, by a clear preponderan<le of testimony, that the conductor did use such unnecessary force .and violence; and if the counter-testimony of defendant, a·s .detailed by Hall and Stone, preponderates over that of plain.tiff and her witnesses, in the opinion of the jury, then they .must find for the defendant: (4) "Again, we insist that the new testimony disoovered .after the trial (the witness White) is sufficient to graD,t anew .trial, as the court. can easily. soo that another credible witness, supporting Governor Stone and Hall, as to the alleged .choking of the plaintiff, would, in all probability, have· lim.ited the recovery to compensatory damage the defendant. The testimony was discovered only accidentally after the trial, and by no human agency, or reasonable or extraordinary diligence, could it have been discovered earlier." The affidavits of newly-discovered testimony show that -one White was in the car at the time, and he d,etails the occurrences in a way tending to corroborate the defendallt's witnesses. It is said the fact that this witness was present 'was not discovered until after the trial of the case. The. facts not already shown by the previous reports of this case appear in the opinion of thll conrt. It should be stated that the plea which justified the exclusion, on. Qf color, was withdrawn because this company makes no distinction <on ,that account, and the reasonableness: of any regulation
56
FEDERA.L REPORTER.
based on color was, therefore, not paRsed upon by the court Vide 4 FED. REP. 37, 38. HAMMOND, D. J. This case is again before me on a motion for a new trial, and I have been aided by lengthy oral arguments, and an elaborate printed brief for defendant of unusual earnestness and exhaustive research. It is conceded by the learned counsel for defendant that "in all cases of exclusion for any reason we have not found a single case of a woman, but that on account of color, in Railroad Co. v. Williams, 55 TIL 185, and Railroad Co. v. Miles, 55 Pa. St. 209," to which may be added Railroad Co. v. Brown, 17 Wdl. 445, a!1d other cases not necessary to cite. This statement accords with my own researches, for when this rase was bofore me on demurrer I endeavored diligently to discover if the defence set up in the special plea in this case had ever before been made. The reason is plain. Thieves, rioters, gamblers, drunkards, or otherwise disorderly persons are not generally women, nor while traveling do women often misbehave, our own sex being substantially monopolists of these vices; nor are they generally engaged in any calling which can be used to the detriment of the carrier's business, by using his means of transportation to solicit'patronage for a rival line, as in Jencks v. Coleman, 2 Sumn. 221, the leading case on this subject; and it is for this reason that carriers, acting upon the notions of chivalry that, with all its vices, characterize our sex, seek to protect women from the rude conduct of the disorderly by providing for them a special "ladies' car," in which, while traveling alone, they may be somewhat secluded. And, in my judgment, this case of Jencks v. Coleman has been often misapplied, as it has been in argument here, during which its language was repeatedly quoted with constant reiteration of emphasis. In delivering his opinion in the case, Mr. Justice Story uses language which, interpreted in the light of the facts he was considering; and of the facts of subsequent cases that haye followed it properly in judgment, contains the enunciation of a principle that has become established law. But when he speaks of the character and conduct of passengers "who are guilty of gross and vulgar habits of conduct, or
BROWN V. MEMPHIS &C. R. 00.
57
who make disturbances on board, or whose characters are doubtful or, dissolute or suspicious, and, a fortiori, whose characters are unequivocally bad," he moans character, habits, and conduct that are injurious to the other passengers in the sense that it subjects them to loss at the hands of the thief or gambler, to discomfort by reason of personal trespass and insult, or to annoyance by the exhibition of gross and vulgar habits. He does not mean that the common carrier, in the interest of the public, or itB own supposed interest, shall become a censor of individual morals by assuming to classify his passengers accordin?, to his own idea, mOre or less fastidious, of their character or conduot, as established by theil' private lives. The carrier has nothing whatever to do with private character or conduct, except so far as it furnishes him with evidence of a probable injury about to be inflioted on his other passengers or his business. He must carry all who come properly dressed, and who behave genteelly, and cannot classify them according to their general moralreputations, though he may exclude those who are at the time inflicting injury and annoyance, or who have so unequivocally bad reputations for some vice that tends to injure and annoy the passengers, that he has reasonable ground!'! to assume that they will, if permitted to remain, put the vice in practice; nor need he wait for an overt act. It is easy enough to imagine the case of a dissolute man or woman so abandoned to habits of unchastity that either would, in a railroad car, give just offence by lascivious solicitations, the exhibition of indelicate manners, or the use of improper language; and a reputation for such conduct would justify exclusion. This is the issue made by the special plea here, and the one submitted to the jury, and found against the defendant oorporation under a charge almost identical with the language of this opinion on that point. The difficulty in this case arises from the fact that the defendant was not willing to confine the issue to that of· the special plea, which alleged that the plaintiff was a notorious courtesan, addicted to the use of profane and indecent language in public places, and of gross and vulgal
6S
PEDERAL REPORTER.
habits of conduct, (vide 4 FEDERAL REPORTER 38,) and which,. if the jury had found to be true, would have been a good defence; but insists that, on the facts as proved, and under' the general issue, it was entitled to a verdict, and should now ha've a new trial, because the court did not adopt that view. I cannot better present the principle upon which we were asked to try the case than by extracting it from the brief of defendant'scounse!. "We submit," say they, "that nothing could be more repulsive and annoying to ladieB, and their fathers, husbands, and brothers, than to know that whores will be entitled to be seated by them in railroad cars;" and again, "Why est8lblish or maintain a 'ladies' car' at all, if' whores, and all other classes of improper characters, can get. admittance there, and their exclusion therefrom can only be justified from bad conduot at the time?" This position was defended and illustrated by the argument ad hominem before thejury, and to the oourt, with great vehemence, and is not without some force. ' Passing the question whether the jury on the facts would so designate this plaintiff, the argument, in my opinion, is as wholly unsound as if applied to prevent the characters described from walking on the same street with "ladies." Nor do I see why it should not be applied to men as well as women, so as to exclude whoremongers, riot only from the "ladies'" car, but from that in which "gentlemen" ride. But the experience of every man who travels demonstrates that, as a fact, no such classification is attempted; and the proof was satisfactory that this company does not adopt it, and no regulation was proved that especially authorized it. The conductor testified that he was instructed to keep out improper characters, which he considered would exclude prostitutes; but defendant was challenged by plaintiff's counsel to prove a single instance in which a woman had ever been excluded from their ladies' car for want of a reputation for virtue at home, and no such instance was offered, except the exclusion of this plaintiff twice before by this same conductor. On the other hand, the plaintiff proved that she had frequenily traveled in the "ladies' car" on this road with other conductors, and had never been excluded
BROW..,. HEMPIIIB .II O. B. 00.
tS9
except by this one; and that women known to be prostitutes had traveled in such cars without objection, and that this conductor had been seen talking familiarly in the ladies' car with white women known in the town where plaintiff lived, and all along the road, as belonging to the denounced class. The conductor denied all knowledge of this, and it may be that he did not know it; but it is strange that more exelutUons, by himself or other conductors, were not shown, if it was the habit of the company to so classify the passengers. It was proved that the car in which this plaintiff was ordered to ride was filled with "virtuous ladies, wives, mothers, and daughters, and their husbands and fathers;" and yet this woman, notwithstanding the pretended regulation, was to be placed "in contaot" with them. It is true, they were "emigrants," but none the less entitled to protection at the hands of the carrier; and while they might have sought protection in the "ladies' car," as suggested in the argument, they would. have had to pay first-class fare, as this plaintiff did, to be so entitled. The truth is, this whole defence is based upon a strained construction of the word "ladies," as applied to "ladies' car," used in the parlance of railroad people: In Bass v. Railroad Co. 86 Wis. 450, a male passenger was forcibly ejected from a car, and the defence was "that the car into which the plaintiff entered was a 'ladies' car,' set apart by a regulation of the company for ladies and for gentlemen accompanying ladies, as plaintiff knew;" and the court, in justifying this regulation, does say that "even women, or men accompanying women of offensive character or habits, may be excluded, so as to group women of good character on the train together, sheltered as far as practicable from annoyance and insult." This is the nearest approach td any judicial sanction for the argument under oonsideration I have found. Passing the fact that it is obiter, the language quoted, like that of Jencks v. Coleman, must be understood to apply only to cases "where· it can be satisfactorily proved [to use the words of the learned chief justice in Venton v. Railroad Co. 11 Allen, 304J that the condition or conduct of a person was Buch as to render it reasonably oertain. thllt he would
+
60
.
FEDERAL REPORTER.
sion disturbanoe or annoyanoe to other passengers if he was admitted into a publio vehiole or allowed longer to remain within it." This oase was expulsion from a street railroad oar, where the plaintiff was intoxicated, and used loud, boisterous, profane, and indecent language. So it is with all the oases oited by defendant; not a single one goes upon any other ground than that there, must be, either existing or apprehended, some injurious, offensive, or otherwise annoying oonduct of the person excluded; and the mere presence of persons of immoral character in a publio oar, where the immorality is of the kind alleged in this case, and is oonfined to the private life of the individual, and does not affect her habits and conduct in publio places, is no more a sufficient ground for exclusion than their presence in the streets, horseoars, omnibuses, or other such vehioles would be. Any other rule would prohibit them from traveling altogether, for they may as well be excluded from these last as from the railroad cars. Indeed, the American style of railway carriages is inoompatible witli any such classification of passengers; the cars are constructed to seat not less than 60 persons, and when virtuous ladies travel in such oonveyances they need not and do not expect to find that seclusion which is possible in social life at home, at hotels, and places of amusement. The "ladies' car" is not designated alone for women whose virtue is above reproach, but for those whose habits and behaviour are modest, genteel, and irreproachable, while traveling alone or with male companions of like habits; and in it these may find some seclusion from the sometimes boisterous and rough ways of men traveling without the restraints of female society, but not seclusion from the presence of other women whose private lives, perhaps, are not what they should be, although their public demeanor is chaste and modest. The plaintiff in this case proved indisputably, I think, that she is not repulsive in appeatance; is accustomed to dress well and even handsomely; behaves in a lady-like manner, and that on this occasion her oonduot was unexceptionable. The defendant offered some proof of isolated ocoasions which might impeaoh'her of unlady-like behavior, but the proof was
61
clearly inadequate to fasten upon her the imputation contained in the plea that sh,e was "addicted to lascivious and profane conversation and immodest deportment in public places." The conductor, it is said, swore that she was talking through the window to two "low-down men," and when he ordered. her out she said, "I'll be derned if I do;" and it is urged that she did not contradict this in her proof. The court does not remember whether she specifically contradicted the conductor or not, but the proof was all submitted to the jury, the witnesses were before them, and they were. the judges of the facts. She proved that at weddings, parties, pic-nics, and all manner of social gatherings, among the most refined and elegant women of Corinth, she was employed to serve refreshments and wait upon the "virtuous ladies, wives, mothers, and daughters, and their husbands and fathers," and to nurse them in sickness. If this be so (and there is not the least doubt of it) where she and her reputation are best known, it is difficult to see how her presence in a "ladies' car" could be offensive to entire strangers, or even to those to whom she was known at home. On this occasion she sat in one end of the car alone, two or three other women being in the other end, the remaining passengers l>eing men without female companions, among them the governor of the state, who testified to her good behavior then and J1,t all other times in public. On proof like this I do not see how the jury could have found otherwise than a wrongful exclusion, except upon the theory already discussed that the mere presence of an unchaste or "kept woman," as she was called by witnesses and some of the counsel, is a sufficient justification for exclusion from this particular car in which otherwise she was entitled to ride, and an obligation on her to ride in another, car, assigned not to women of her class particularly, but which was offensive to her because smoking was allowed in it, and because it was crowded with passengers traveling at lower rates than she paid, and that, too, while she had, according to contract, the right to as pure air and as good accommodations as other women traveling on a first-class ticket.
62
The most careful consideration of the ease fails to procure the assent of my judgment to such a doctrine, not only for the reason already stated, but for another mentioned in the charge to the jury, that such a regulation would practically place the character of every woman, virtuous or not, for trial before every railroad conductor, and the reputation of her private life might be at any time called in question by him. The argument that the conductor and railroad company act at their peril, and are liable in damages for mistakes in judgment, does not remove this difficulty. It is inadequate redress for such a wrong as that of saying to a virtuous woman that she must ride in another car because not believed to be chaste enough to ride in the "ladies' car," set apart for vir" tuous la;dies. It is an unreasonable regulation, and finds not a single case to justify it, that a conductor shall undertake to classify his passengers according to their moral character or want of it, when their manner, dress, and habits of conduct are not offensive. Another objection to the charge is that the court took away from the jury this question of reasonable regulation, and did not follow the ruling on the demurrer. 4 FED. REP. 37. But neither that ruling nor the authorities on which it is based warrant the assumption that the jury are to be the sole judges of the question of reasonableness. They are, as in all mixed questions of law and fact, to apply the facts of the particular case to the principles of law laid down by the court. I charged substantially in the manner indicated in Commonwealth v. Powers, 7 Met. 603, and did not in the least encroach upon the duties of the jury. It will be found upon a critical examination that the only reason the court cannot, as a matter of law, determine the question whether the regulation is reasonable, is because the plea does not in sufficient detail display the facts which must control the judgment of the court. Given. undispnted facts, and the question of reasonableness is one of pure law. The next objection is that the' court refused. to charge the jury that absence of malice on the part of the conductor, and good faith in the belief that he was acting rea·
t1.IfEMPmsdt0;
R. 00.
68
eonably, would 'entitle the plaintiff to' recovel only compensatory, not punitive damages, and, charged that sucb a state of' facts would, only go to the damages. There is, on ,the facts of this case, no room, perhaps, to say unqualifiedly that the conductor acted without malice, and there is Rr60f tending to establish at least wantonness of conduct; and 'the rule is well settled that the company is responsible for wilful injuries by conductors acting under a pretence of performing it duty' or carryingOlit orders. Pierce on Railroads, 279. But assum.ing that he did al3t without malice,' the charge seems to me to be correct. There is, undoubtedly, a class of cases where malice or gross negligence, showing a reckless indifference to the rights of others, is necessary to entitle the plaintiff to exemplary damages. Milwaukee R. Co. v. A'I'mB, 91 U. S. 492; Phila. R. Co.v. Quigley, 21 How. 218; Day v. Woodworth, 13 How. 369. But this does not always mean simply the personal malice of the conductor or agent of the corporation. Where that exists, or his conduct is."wanton, gross, and outrageous, and in tbenature of a personal indignity," vindictive damages are allowed; but, in its absence, punitive damages may be inflicted as a meth()d of enforcing upon the, corporation obedience to the duties required of it as a common carrier, even in cases where no petsonal spite can be possible. The only way carriers of passengers can be held to reasonable regulations is by allowing juries to inflict punitive damages for a violation of the rights of the public; and the establish!pent of unreasonable regulations is the gravamen of the offence, that being a disregard of the rights of the public for which the carrier is punished. The mere price of a ticket, or refunding of the money, will not answer the purpose in all cases; that would be simply to permit the carrier to enforce t}J.e unreasonable regulation, because he should never claim to keep the moneywhile refusing to render the service. He would take no money.o, refund all r(:lceived, and go on with his business in his own way, and the plaintiff, or the public, would be no better off. This rule of damages would be simply rescindjP,g the contract of carriage, which is all the carrier demands,
64
IEDERAL REPORTER.
and sufficient for, his purpose. Even in Pel1/1'80n v. Duane, Wall. 605, so much relied on, where the captain put off his passenger from a humane motive, to save his life, and the jury gave $4,000, which the supreme court, beoause of the mitigation, reduced to $50, the damages were punitive and not compensatory, as it was not shown that plaintiff had been damaged in fact one cent. He had paid forno;tioket, and had no money of his own, and clearly the $50 was aJlowed to enforce the judgment that the exclusion was technically wrongful, and not to compensate the plaintiff. In Railroad v. Brown, 1'1 Wall. 446, a colored woman excluded from a car on account of her color "with force,and, &8 she alleged, with some insult," recovered $1,500 dan'l.Itges,' and it was not even assigned for error that the damages should have been only compensatory, and the court affirmed the judgment. The true rule will be found to be, I think, that in all cases where the offence is against the particular individual, the want of malice only mitigates the punishment in damages, and may reduce them to zero, according to circumstances. But, where the offence is not only against a particular individual, but also against the public, as in most, if not all the cases of wrongful exclusion of passengers, the question is one solely for the jury to say how much punishment is necessary to enforce the rights of the public against the carrier, as well as to vindicate the private individual. The defendant here had all the benefit of the principle relied on when the jury were told that the facts, if true, should be taken)n mitigation of such punitive damages as they should think proper to give. The other instruction refused was clearly asking the court to charge upon the weight of the testimony of Stone and Hall. The court charged the jury fully as to the method of weighing testimony, and cautioned them against supposing it consisted in merely counting the witnesses. It also instruct'ed them that the burden of showing violence wason the plaintiff, and that it was her duty to confine her resistance within the point of contributing to her injuries by engaging in an unnecessary trial of strength with superior force. The casel
pfJ"[iJms'Jv;.'R. (}o; libd"Diliis f:' mte/i.by O'(i{l'tillel' :to ·su8'.t'ltilrr
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and that they'fDus:tisubjniit and 'e-eek 'tedre'ss Jelsewhsre;""dd nm pfisitian/ Ih:the 1irst/therreourt;held passenger eotild"::not\ forciblj enWHhe l'adies' after alt-boligh, uhder'tlfec'J."tbunUta.:n'ces,' lie to ;:l'JU:tl itdolliji not Ilold'; tliaf;"beiWg' could: not' ;{orCliiilyresist 'nnlaiwftil" ej'eCfI6n;' 'N' the ffltse (the coutt'l!limply ftileg ! that; ; cofi'dluct(jrllitd fd1gn'i ttf put' bim' off, 'the; f caaes,cii.ed aeeJh:toplh.l6e h tIle duty-:6!-<lsubmission' dh that' the cO'mmandto lea HbW' far 0ll. of liis rigliftoremltin},Di:ay J llarry' his'ieslstarice, mitj' lie- 'UouI>tftil; I '1Jt11l Iibs6IUte aft 'is(;I1(jt his <iuty and lawful tesistarliie not preclude the rightofl'ecowij:" showed that tbe' plaintiff refttseff'to' leltV'e;: and; when' condubwr laid'{hand!! ion h!er,she rfastened' fe'6t: ittb'out' the rHngs of the seat;'and'defendant that 'iii iirig this unlawful reSistartcefo"thehrith6iity tif tIre 'conductor >irijury, if any; .was' 'abne, 'arid that' hecdiild lawftilly usij al! [force' 'necessary to ovilrcoIhe' it;' 'The cases do' n6t"shbW tliat,the ttJndnctor carl la.wfliUyjemploY' any force to remove 6rM rightfully ili,'tbe cat,' used' iawrongful i ; even where the expulsion is righfful fbtce must not be arid where it iifwrongfnl reil.s()Mbleresistance cann6't be unlawfuL" :Still; the to determhie' whom' he will eject,' 'and can command force generallf sufficient toaccomplish 1he rerllOval, so that resistance of any kind, enough' to show'that the wrong is nofacquieSC'ed In by the plaintiff, is useless where the condUctor is deter. mihed on the in sOfue 'woUld lead to affrays .or other turbulence, of other passengers. I think,thetefore,n6 fule ' should' ,be whidh it. . Such re'si'stance iii 'But 'wherepersonalitij\.tries ate received I am of tli (opinion that unnecessa.ry v.7,no.1-5
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