I dissent from the reversal of this judgment. I also dissent from the reversal of the judgment in the case of John W. Rice, which was decided at the present term on the authority of this case.
As the principal question in both cases was identically the same, it is convenient to consider them together. Rice brought suit against the Philadelphia, Wilmington and Baltimore Railroad Company, and recovered judgment. It appears that he purchased a ticket on the thirtieth day of January, 1883, at the ticket office of the defendant. The ticket was in two coupons; one of which shewed that the *Page 310 plaintiff was entitled to transportation from Wilmington to Philadelphia, and the other from Philadelphia back to Wilmington. While he was on his way to Philadelphia, in one of the defendant's cars, the conductor of the train tore off the return coupon and cancelled it by punching. In a moment afterwards the conductor said to the plaintiff," I have made a mistake; I will make it all right;" and then wrote on the back of the cancelled coupon these words in lead pencil: "cancelled by mistake;" and gave it back to the plaintiff, saying: "it is all right, you can use the ticket." On the following day the plaintiff went to the depot in Philadelphia, for the purpose of taking the early express to Wilmington; the gate-keeper noticed that the ticket had been punched, but on hearing from the plaintiff the explanation of the circumstances, he said: "excuse me, that is all right;" and permitted him to go through the gate. The plaintiff entered the cars, and was proceeding on his journey when he was ejected from them by the conductor, who then had charge of the train, and who was a different person from the one who had punched the ticket on the previous day. It is unnecessary for the present purpose to consider the conflict of testimony about the manner and the circumstances of the ejection. The plaintiff offered evidence to the effect that it was violent and brutal; and the testimony on the part of the defendant tended to show that the conductor made the removal without unnecessary force, and because the cancelled ticket had not been marked in the manner required by a regulation of the Railroad Company. There seems to be no question in the mind of the Court that the above recited facts, if found by the jury, entitled the plaintiff to a verdict. But the measure of damages has given rise to a difference of opinion among us. The Court below instructed the jury both in Rice'sCase and Hoeflich's, that if they found for the plaintiff (under an instruction previously given) that they "should award such sum as damages as *Page 311 will compensate him (or her) for the injury to his person, feelings, and character arising from the unlawful act of the defendant, and if they believe that said unlawful act was deliberately and forcibly done, then they may give such exemplary damages as they may consider a proper punishment for the conduct of the defendant, acting through, its agent, the conductor."
It has been a rule of the common law from the earliest period, that where an act occasioning an injury to another is unlawful, a right of action accrues without regard to the intent of the wrong-doer. If the wrongful act causes an immediate injury, trespass vi et armis is the proper remedy; but, if the injury is consequential, the form of action is case. Under no circumstances is it necessary for the plaintiff to show the intent of a person who has committed an unlawful act resulting in his injury. If, however, a person be engaged in the performance of a lawful act, and the injury be unintentional, unavoidable, and without the least fault on the part of the doer, no action would lie. The unlawfulness of the act determines the right of action; and the question, whether the injury was immediate or consequential, settles the form of the remedy. In a number of instances, the Courts have awarded damages where the injury was unintentional. It is not necessary to refer particularly to them. The familiar cases of Weaver vs. Ward, andUnderwood vs. Hewson, cited in Chitty's Pleading, illustrate the rule. In the first of these cases, the defendant, while exercising in the trainbands, fired his musket, and by accident hurt the plaintiff. In the second, the defendant was uncocking his gun, when it went off, and accidentally wounded a bystander. In each instance, the person doing the injury was held liable to an action of trespass vi et armis, because the injury although unintentional was immediate. And in Cross vs. Kent, 32Md., 581, this Court held that a lunatic was liable for the value of property which he had burned up, *Page 312 and that it was not competent to reduce the damages below the value of the property destroyed, by proving his lunacy, or by proving that the burning was the result of accident. In all cases of this kind the law fixes indemnity and redress, as the measure of damages to be recovered by the injured party.
But there are cases in which injuries are committed intentionally, and these vary infinitely in their circumstances; running through all the gradations of wrongdoing, from slight indifference to the rights of another, up to hostile, malevolent, and oppressive invasion of them. The law takes cognizance of all these circumstances, and permits the damages to be increased beyond indemnity and redress in proportion to the matters of aggravation. We find in this Court that this principle has been invariably maintained. In Shafer vs. Smith, 7 H. J., 68, it was held, that the plaintiff might for the purpose of increasing the damages give in evidence the circumstances which accompanied, and gave character to the trespass. And in many subsequent cases, the Court has reiterated this doctrine in the very words in which it was first declared. Many particulars of misconduct have been considered by this Court, and stated as matters proper to inflame damages. It may be well to mention some of them. In Bond vs. Ridgely, 17 Md., 14, where a defendant had committed a trespass on land, knowing that it was not his, the jury were not limited to the damages committed, but were allowed to find such further damages as the facts and circumstances might warrant. In Dailey vs. Grimes, 27Md., 440, where the action was brought for taking and selling property under a distraint where no rent was due, it was held that, in estimating the damages, the jury were not limited to the value of the property taken and sold. In Young vs. Mertens, 27 Md., 127, it was held that if the defendant wrongfully took the plaintiff's property without his consent, the jury in fixing the damages were not confined *Page 313 to the value of the property when so taken. In Strasburger vs.Barber, 38 Md., 108, it was ruled that the jury might assess more than the actual damage for the injury, if the defendants acted after notice and wantonly. It, may be well here to notice Breinig's Case, 25Md., 378. It is stated in the head-note that where there is no evidence of wanton and malicious, or gross and outrageous conduct on the part of the defendant, actual damage is the limit of the plaintiff's recovery. This question was not before the Court of Appeals, and was not decided by it; and as an abstract proposition the principle announced is erroneous. The case as shown by the evidence was not one calling for exemplary damages, and the Court below so decided; but the appeal of the defendant did not bring up the question to this Court for review, and no opinion was expressed upon it. The damages are liable to be increased by every circumstance of aggravation which raises the wrong above the level of an unintentional injury, although they fall far short of wanton malice or gross outrage.
No doubt many general expressions may be found in the books, similar to those quoted in the opinion of the majority of the Court, and it is not denied that they were appropriate to the occasions on which they were used. But the safe and sound rule in estimating the value of a decision is to consider the facts which were in judgment, and to apply the general language of the Court to these particular facts. Great errors frequently are committed by applying them to other and different circumstances. That the right to give exemplary or vindictive damages is not limited in the manner stated in the opinion of the majority of the Court may be seen from very early cases. The case of Huckle vs.Money was tried in the Court of Common Pleas, in the year 1763. It was an action of trespass for assault and imprisonment. The defendant attempted to justify under the general warrant of a Secretary of State, commanding *Page 314 the apprehension of the printers and publishers of the celebratedNorth Briton, number 45, without specifying the name of any person in the warrant. The Court overruled the defence, and the jury gave a verdict for three hundred pounds damages. The report of the case states that the defendant kept the plaintiff in custody about six hours, "but used him very civilly by treating him to beef steaks and beer, so that he suffered very little or no damages." The Court on a motion for a new trial refused to interfere with the damages, and sustained the verdict. 2 Wilson, 205. And in the subsequent case of Beardmore vs. Carrington,et al., reported at page 244 of the same volume, the Court sustained a verdict for a much larger amount under similar circumstances. In this latter case, the plaintiff's house had been entered and his books and papers seized, and he had been imprisoned for six days in the defendant's house. The same justification was set up as a defence, and overruled, and the jury gave a thousand pounds damages. The evidence showed that no violence was offered to the person of the plaintiff, and that his wife was permitted to be with him, and that he was permitted to go to any part of the defendant's house, while he was confined there. The Court decided that the jury had a right to give vindictive damages in these cases, because of the outrage on the plaintiffs in violating their right of personal liberty and personal security. It was admitted on all sides at the trial that there had been a great many precedents of warrants like those in question in these cases, but they were held by the Court to be unlawful, and those who executed them were held to a strict and severe responsibility. It will be observed in these cases, that the defendants had no evil or malicious purpose against the plaintiffs, and that there were no circumstances attending the execution of the warrants which showed wantonness, indignity, or a contemptuous disregard of the plaintiffs' rights, but quite the contrary; the *Page 315 defendants were in the mildest manner executing warrants issued by a high officer of the Government in accordance with a long usage never before questioned. In the opinion of the Court this language is used: "It was strongly argued at the trial of this cause, that the jury were to measure the damages by what the plaintiff had suffered by this trespass and six days and an half imprisonment; but this was thought agross absurdity by the Judge who presided there." It is well known that these cases were decided by the illustrious CAMDEN; and it may be added that no judgment of that great man has ever received more general and cordial approval.
The second instruction given by the Court on the prayer of the plaintiffs, it will be remembered, is based on the hypothesis that the jury should find the facts embraced in the first instruction, which showed that the ejection from the cars was unlawful. The act being found to be unlawful, it was declared to be properly punished by exemplary or vindictive damages, if it was deliberately and forcibly done. Let us examine this instruction for a moment. A forcible trespass upon the person of another is a crime; and the law deals with crimes by meting out punishment to those who commit them. And if a crime be committed with deliberation it assumes a darker hue. The law makes due allowance for the infirmities of human nature, and mitigates its penalties to those who act under the impulse of sudden passion or excitement; but it punishes with great severity crimes committed with deliberation. Force is abhorrent to the genius of the law. It is the oppression of the weak by the strong. But the law arrests the aggressions of the violent, and protects the feeblest in the enjoyment of their rights. It seeks and maintains peace, and makes its own enlightened reason the arbiter of wrongs. On the hypothesis of the second instruction, the plaintiff had a right to remain in the cars; and it can certainly be no extenuation of the force by which he was *Page 316 deprived of his right, to say that the wrong could not be committed without force. The transaction was in law an assault and battery committed for the purpose of taking from the plaintiff a right which he had purchased and paid for. This Court held in Blocher's Case that where an injury was committed either with force or malice, the injured party might recover vindictive damages. 27 Md., 287. And in Boone's Case, 45Md., 344, an instruction in the very words of this second prayer was held by this Court to be correct; and this ruling was approved inLarkin's Case, 47 Md., 155.
The deliberation in Boone's Case was not greater than that shown inRice's. By the fourth prayer offered in Rice's Case on the part of the defendant, it was attempted to exempt the Railroad Company from exemplary damages on the ground, that the conductor was carrying out in good faith a rule of the Railroad Company, and was acting without unnecessary violence. By that rule the conductor was authorized to refuse the ticket, because it was not marked in a particular way by the other conductor who had improperly punched it. Now we may ask to whom was it owing that the ticket was not thus marked? Undoubtedly if there was fault anywhere, it was on the part of the conductor, who in this behalf was acting in the course of his employment, and represented the Railroad Company. The injustice of a rule, which because of the neglect of one of its own officers, attempted to forfeit the rights of a passenger who had been guilty of no wrong, is quite as striking as that of the rule condemned by this Court in Boone's Case; and as the Railroad Company acted in the adoption of this rule as advisedly and deliberately as the defendant did in Boone's Case, the same consequences ought to follow. The concluding passage in the Court's opinion in this last mentioned case is too apposite to be omitted: "In undertaking to adopt regulations to operate upon the public in detail affected by its action, it *Page 317 had the opportunity from its character as a corporation, to determine at its leisure, its policy; and could not well claim to be excused for hasty and illegal conduct. If the result of such determination was the establishment of rules, either to compel the passenger, availing himself of his legal right to travel in its cars, to pay an unwarranted and illegal exaction, or be compelled to submit to his expulsion therefrom by force, through its subordinates, with all the attendant indignity, it thereby assumed the hazard of subjecting itself to the highest measure of damages, for the deliberation and force accompanying its illegal conduct. This would seem to be a reasonable consequence. It should be careful to keep within the limits of the law, and not encroach upon the rights of any passenger. By transcending such bounds deliberately and forcibly, public policy demands, that it shall be compelled to incur the highest grade of damages to a party aggrieved by its unlawful action, according as the sound discretion of an intelligent jury may determine." The rule to which the Court alludes was this: The defendant required its conductors to demand the sum of twelve cents from every passenger travelling on its road, from any point of the first mile in Baltimore County to any point inside the city, when he had not obtained a ticket at the office of the company, and to give to the passenger a drawback of one cent, in a coupon payable at its office. The Court decided that the company had no right under the law to charge more than eleven cents for the distance mentioned, and condemned the rule in the severe terms above quoted.
I have not intended to intimate any opinion on the propriety of the verdicts rendered in these cases; but merely to maintain that, according to repeated adjudications of this Court, the question of exemplary damages was properly left to the jury in each case. I think that the judgments in both cases ought to be affirmed.
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