11 S.W. 139


DILLINGHAM et al.
v.
ANTHONY.


Supreme Court of Texas.


February 15, 1889.

Page 140

Error from district court, Freestone county.

O. T. Holt, for plaintiffs in error. O. C. Kirven, B. H. Gardner, and Hume & 
Kleberg, for defendant in error.

STAYTON, C. J.

This action was brought by defendant in error, July 28, 1887, against plaintiffs 
in error, who were receivers appointed by a circuit court of the United States 
prior to the time the injury complained of was inflicted, and in possession of 
and operating the Houston & Texas Central Railway at the time plaintiff claims 
to have been injured. It was brought to recover damages actual and exemplary on 
account of injuries resulting from an assault and battery made on him, while a
passenger in one of the cars, by the conductor in charge of the train and in 
the employment of the receivers. There was a verdict and judgment in favor of 
defendant in error for $1,000 as actual, and $2,000 as exemplary, damages.

Plaintiff in error, by plea, denied the jurisdiction of the court below, on the
ground that no court other than the one appointing them could exercise 
jurisdiction. This was overruled, and correctly so, for, whatever may be the 
true rule in suits brought against receivers, as to the necessity for leave to 
sue them in other courts, under the act of congress of March 3, 1887, receivers 
appointed by the courts of the United States are subject to suit, without leave, 
in any court having jurisdiction over the subject-matter. No court can interfere 
with the custody of property held by another court through a receiver, but may 
establish by its judgment a debt against the receivership, which must be 
recognized even by the court appointing the receiver, and not open to review by 
it, if the court rendering the judgment had jurisdiction of the subject-matter 
and the parties. The manner in which a judgment so rendered shall be paid, and 
the adjustment of equities between all persons having claims on the property 
and effects in the hands of a receiver made, must necessarily be under the 
control of the court having custody through its receiver; but this does not 
affect the jurisdiction of other courts conclusively to establish by judgment 
the existence and extent of a claim.

On the trial the conductor testified as a witness, and, on being interrogated, 
stated that he did not tell A. W. Williams on the night after the difficulty, 
holding his ticket-punch in his hand: "This is the thing I did the son of a 
bitch up with;" and afterwards Williams was permitted to state that the witness 
at time and place mentioned did make such a statement to him. The evidence was 
objected to on the ground that the declarations of the conductor, made 
subsequently to the difficulty, were not admissible against the defendants. 
After the evidence was admitted, the court withdrew it from the consideration of
the jury, and instructed them not to consider it; but it is insisted that the 
judgment should be reversed because of its admission. It is frequently the case 
that evidence is admitted which, on reflection, the trial court deems it proper 
to withdraw from the consideration of the jury, and in some cases such action 
ought to be held to cure the error, while in other cases the evidence might be 
of such character, and the whole case so presented, as to induce the belief 
that the jury may have been influenced by the erroneous admission of evidence, 
although subsequently told by the court to disregard it. In the latter case the 
admission of evidence that ought to have been excluded might be ground for 
reversal, and in the former not. The evidence of the witness Williams was not 
admissible for the purpose of proving that the conductor did strike the 
plaintiff with his ticket-punch; but it may have been relevant to the issue as 
to how the battery was made, and, for the purpose of impeaching the evidence of 
the conductor to show that he had made statements out of court different from 
those made in court, admissible. If, however, the evidence was not admissible 
for any purpose, we do not perceive that it was calculated to operate to the 
injury of the defendants. From the testimony given by the conductor on the 
trial, and from the testimony of McCartney and the plaintiff, there could be but 
little doubt that the conductor did use his ticket-punch in the battery, and the 
language shown to have been used by him at the time of the difficulty showed as 
fully his animus at that time as possibly could the language testified to by the 
witness Williams.

It is urged that the court erred in charging that defendants would be liable if 
the acts of the conductor were willful and malicious. There is no doubt that 
ordinarily the master is not liable for an injury resulting from the willful and 
malicious acts of his agent, not done in the course of his employment. This is 
the rule in all cases in which the liability of the master depends on the sole 
fact that the person who inflicted the injury was in some business his servant; 
and if, upon inquiry, it be found that the act

Page 141

was not done while in the transaction of the master's business, then the act is 
not to be deemed the act of the master, for as to that the wrong-doer was not 
his servant. The rule, however, cannot be applied in a case in which the master, 
by contract express or implied, is under obligation to protect the injured 
person from the servant's wrongful act, as well as his own. When a duty is thus 
imposed on the master, the servant employed to discharge it is the 
representative of the master, for whose acts, whether of omission or commission, 
resulting in injury to the person entitled to have the duty performed, the 
master must be held as fully responsible, and liable to make, at least, actual 
compensation, as though the act were his own personal act. In such cases, if the 
servant does what the master could not do, nor suffer to be done, without 
violation of the particular duty resting upon him; or if the servant omits to do 
that which is requisite to the full discharge of the master's incumbent duty, — 
then the master must be held responsible for the servant's wrongful or malicious 
act or omission; for otherwise it would result that a master might relieve 
himself from obligation to perform a duty fixed by contract or otherwise by the 
employment of servants to conduct the business to which the duty attaches. The 
master's obligation cannot thus be avoided, and whether the servant's act 
violative of the master's duty be willful or malicious is a matter of no 
importance in determining the liability and obligation of the master to make 
actual compensation to the injured person. It has been steadily held to be the 
duty of a carrier of passengers to protect them, in so far as this can be done 
by the exercise of a high degree of care, from the violence and insults of other 
passengers and strangers, and to protect them from the violence and insults of 
the carrier's own servants; and the inquiry whether this duty arises from 
contract or from the nature of the employment becomes unimportant, except that 
the duty goes with the carrier's contract, however made, whereby the relation 
of carrier and passenger is established. Ramsden v. Railway Co., 104 Mass. 120;
Bryant v. Rich, 106 Mass. 180; Craker v. Railway Co., 36 Wis. 657; Stewart v. 
Railway Co., 90 N. Y. 588; Sherley v. Billings, 8 Bush, 147; Railway Co. v. 
Flexman, 103 Ill. 546; Railway Co. v. Rector, 104 Ill. 296; Goddard v. Railway 
Co., 57 Me. 202. Under the facts of this case the court below properly held 
that the defendants, as receivers, were liable for injuries resulting from the 
willful or malicious acts of the conductor.

On the question of exemplary damages the court instructed the jury as follows: 
"You are instructed that, to authorize a recovery of exemplary damages against 
the employer or master on account of an injury inflicted by an employe or 
servant, the wrongful act from which the injury resulted must be done by the 
servant or employe maliciously, and under such circumstances as would also 
authorize the recovery of actual damages from the employer or master; and, 
further, the act must be ratified by him. If the employer or master have a 
knowledge of the act and its character, and still continues the employe or 
servant in his former position, such retention is a ratification of the act of 
the servant or employe." The last paragraph of the charge quoted was repeated 
in a subsequent charge. In those jurisdictions in which it is held that 
exemplary damages may be given against a corporation for injuries willfully or 
maliciously inflicted by its servants in all cases in which the willful or 
malicious act was done in the course of the business intrusted to the servant, 
whether the act be authorized or ratified by the corporation, the giving of the 
charge complained of would probably be deemed harmless if the acts complained 
of in this case can be said to have been in the line of the conductor's duties. 
In this state, however, that rule has not been adopted. Hays v. Railroad Co., 
46 Tex. 284, which was a case in which the act complained of might properly 
have been held to have been done in the course of the employment of the servant, 
it was said: "If the malicious act of the agent is ratified or adopted; if 
there is carelessness in the selection of employes or in the establishment of 
regulations; if, in short, the corporation or its officers by whom it is 
controlled are guilty of some fraud, malice, gross negligence, or oppression, 
— the settled rules of law will hold it liable to exemplary damages, but, in our 
opinion, not otherwise." This ruling was followed Railway Co. v. Donahoe, 56 
Tex. 162.

We have no disposition to reopen the question, in view of the conflict of 
authority, and, following these decisions, the remaining inquiry on this branch 
of the case is: Was the charge as to liability of appellants resulting from 
their ratification of the acts of the conductor called for by the facts of the 
case, or correct as a legal proposition in any case? It appears that appellee, 
as a passenger, entered a car on the road controlled by appellants, and that, 
having stopped on the platform outside of the car, he was informed by the 
conductor that this was a dangerous place, and requested to enter the car. As 
to whether this request was made by the conductor without insult and in proper 
manner the evidence is conflicting, as is it as to whether the conductor used 
force in removing appellee from the platform to the inside of the car. Be this 
as it may, it does appear that blows passed between the conductor and appellee 
immediately after the latter entered the car, and his evidence, as well as that 
of the conductor, tends most strongly to show that in this rencounter appellee 
was the aggressor, and the conductor acting in his own defense. They were then 
separated without any considerable injury to appellee, and we do not understand 
him to base this action on what occurred in the difficulty to which we have 
referred. After

Page 142

that ended, the conductor went on in the discharge of his ordinary duties, and 
appellee took his seat among the other passengers; but, after a short time had 
elapsed, the conductor returned to the car in which appellee was, and then 
committed an assault and battery upon him, which, at the time, was unprovoked, 
and made solely to avenge the insult or wrong the conductor conceived had been 
done him in what he claimed was an uprovoked assault made upon him by the 
appellee in the former difficulty. The assault and battery then committed, and 
the injuries resulting therefrom, are made the basis of this action; and there 
is not the slightest ground for holding that it was committed in behalf of 
appellants, for their benefit, in their interest, or in the doing of any act 
necessary or proper to be done in the discharge of the duties imposed on the 
conductor. On the contrary, the act complained of is shown to have been the 
willful and malicious act of the conductor, in violation of his duty to his 
employers, and to the service, as well as to the passenger. Appellants, as 
carriers, are liable to appellee for actual damages, because there was a 
failure on their part, through the conductor or some other representative, to 
give that protection to the passenger which they, as carriers of passengers, 
were bound to give; and this liability does not depend on whether the servant's 
failure of duty was unintentional, willful, or malicious; but to make them 
liable for exemplary damages, if they stand on the same ground as other 
carriers, the willful or malicious act of their servant must have become, in 
law, their willful or malicious act. The rule in reference to affecting the 
master with the willfulness or malice of a servant must be the same whether the
master be a corporation, a receiver in charge of the business and property of a
corporation, or an individual. If in performing any duty within the line of his
employment the servant uses unnecessary force in doing an act lawful within 
itself, and thereby he commits a trespass or crime, then the act may be deemed 
one for which the master is civilly responsible; but if the act be in itself 
illegal, however performed, or by whomsoever done, then the master ought not to 
be held liable, unless he advised, or in some way participated in, the unlawful 
act.

The court below charged that the act of the servant, with all of the servant's 
willfulness and malice, would be imputed to appellants, if, with knowledge of 
his misconduct, they kept him in their employment; and so, without reference to 
whether the act was within the line of the conductor's duties, or one illegal 
in itself, — without reference to the manner of its execution. If there were no 
other ground on which appellants could be held liable for actual damages 
resulting from the injuries received by appellee from the battery made upon him 
by the conductor than that they had ratified his act, could their liability be 
fixed on that ground, however clear their subsequent approval of his act might 
be made to appear? "In order to constitute one a wrong-doer by ratification the 
original act must have been done in his interest, or been intended to further 
some purpose of his own." Cooley, Torts, 127; Railway Co. v. Broom, 6 Exch. 326; 
Wilson v. Barker, 4 Barn. & Adol. 614; Wilson v Tumman, 6 Man. & G. 241; Broom, 
Leg. Max. 873; Wood, Mast. & Serv. 598; Bird v. Brown, 4 Exch. 798; Sutherland 
v. Sutherland, 69 Ill. 481; Moak, Underh. Torts, 38. In the case before us 
there can be no pretense that the act of the servant was done in the interest of
appellants, under any pretense of authority from them, or to further any 
interest of themselves or the corporation whose business and property they were
controlling; and there was no ground on which to base ratification, which is 
but an agreement, express or implied, by one to be bound by the act of another 
performed for him.

If appellants could not be held to have ratified their servant's unauthorized, 
willful, and malicious act, not done in their interest or for their benefit in 
fact or pretense, it is not perceived on what ground they can be held to be 
affected by the animus with which the servant committed the act; and, unless 
they could be so affected, there is no legal ground for awarding against them 
exemplary damages. If the servant's act be one not authorized by the master, or
one not done in the exercise of a power fairly arising from the character of 
his employment, but be an act done for the use or benefit of the master, then 
the master may doubtless ratify the act of the servant through which a tort was
committed; and it may be that, in such case, the ratification of the master 
would fix upon him the bad motive which prompted the servant's act, and thus 
impose on the master a liability even for exemplary damages. It has been so 
held by courts that hold the master not liable for exemplary damages in all 
cases in which the servant is. Bass v. Railway Co., 42 Wis. 654. Such may be 
the effect of the decisions in this state to which we have referred, though 
there are contrary holdings. Sutherland v. Sutherland, 69 Ill. 481. Such a 
question, however, is not before us. Relying, as appellee does, on the injury 
inflicted upon him by the conductor after he took a seat in the car, we are of 
the opinion, under the evidence, that he shows no case entitling him to 
exemplary damages, under the decisions heretofore made in this state, to which
we have referred; and that a case is not shown in which the jury should have 
been charged that they might find appellants had ratified the act of the 
conductor. If, however, the case were different, and it appeared that the 
conductor's act was done in the course of his employment, giving to this every 
intendment arising from his position and the nature of his duties, even then, 
it seems to us, that it cannot be held as matter of law that the mere retention
of the conductor in the same position, after knowledge of his misconduct, 
operates a ratification of

Page 143

his willful and malicious act, and thus fixes his evil motive on his employer. 
The whole doctrine of ex post facto animus as a basis for exemplary damages 
seems to us an anomaly. It goes further than to punish for evil motive, and 
condemns and punishes for evil afterthought imputed, which the court below 
informed the jury existed, as matter of law, if the conductor was retained in 
the service after knowledge of his misconduct. There are cases which hold that 
retention in service, under such circumstances, amounts to ratification of acts 
that may be ratified; but it seems to us that this is not necessarily true, and 
that, where ratification is an issue, this should be left to the jury or court 
trying the cause, under all the evidence, to be passed upon as any other fact 
in issue. The charge given assumed that the act of the conductor was such as 
might be ratified, and that the facts recited in the charge, as matter of law, 
amounted to ratification. We think this was error. This case does not call for 
it, and we are not now disposed to consider what bearing the retention of a 
servant in a position he has abused ought to have in determining the liability 
of the master for his past or subsequent acts.

It is urged that the actual damages awarded are excessive; but we think, in 
view of the facts, this is not true; but, for reasons manifest, now decline to 
discuss the facts bearing on that question. For the errors mentioned the 
judgment will be reversed, and the cause remanded.