This is an action for assault and battery and false arrest and imprisonment brought by Henry M. Green against the Philadelphia, Baltimore and Washington Railroad Company. The suit was instituted in the Circuit Court for Cecil County, and was removed to the Circuit Court for Kent County. It was tried in that Court upon a declaration which contained two counts. The first count charged that the defendant is a corporation owning and operating a railroad for the carriage of passengers for hire between certain points in this State, and for the accommodation of persons intending to become passengers on its road it had provided a waiting room near its tracks in the City of Havre de Grace; that the plaintiff entered said waiting room on the 5th of March, 1907, for the purpose of taking passage on one of the defendant's trains, and that while in "said waiting room for the purpose aforesaid one of the defendant's agents, officers or employees then *Page 38 and there in charge of said waiting room then and there with force and arms did violently assault and unlawfully and maliciously did cast and throw the plaintiff upon the floor of said waiting room, and did then and there beat, wound and ill-treat the plaintiff, etc."
The other count, which is called in the record an additional count and which will be so designated in this opinion, after setting forth introductory averments similar to those stated in the first count, charged that while the plaintiff was in the waiting room of the defendant on the night of March 5, 1907, for the purpose of taking passage on one of the defendant's trains to Elkton, Maryland, "an officer or agent of the said defendant and in its employ, violently assaulted the plaintiff and falsely arrested and imprisoned the plaintiff in the jail of the City of Havre de Grace aforesaid, in consequence whereof the said plaintiff suffered great distress of mind and severe bodily harm and injury and his reputation in the community where he lives has been greatly injured thereby."
The defendant demurred to each of these counts. The Court overruled the demurrers and issue was joined upon the defendant's plea of not guilty, and the case proceeded to trial, which resulted in a verdict and judgment in favor of the plaintiff for one thousand dollars. The defendant has brought this appeal. The record contains four bills of exception reserved by the defendant during the course of the trial. Two of these relate to the admission of evidence; one to the action of the Court in striking out certain testimony, and one to the ruling of the Court upon the prayers and certain special exceptions submitted at the close of the whole testimony.
The record contains more than five hundred pages of testimony, and upon the vital questions of fact involved is very conflicting. We are not required to enter upon a minute examination and analysis of this irreconcilable testimony for the purpose of discovering the real facts of the occurrence to which it relates, or of deciding upon which side is found the preponderance of the proof. It was exclusively within the *Page 39 province of the jury to determine these questions. It is sufficient, in order to dispose of the legal questions raised on the record, to give a general outline of the evidence adduced by the parties to sustain their respective contentions.
The plaintiff offered evidence tending to prove the following facts: That he was a member of an amateur dramatic club, composed of young people of both sexes of the town of Elkton, formed for the purpose of giving entertainments to raise funds for the benefit of Washington Camp of the Patriotic Order Sons of America; that on the 5th of March, 1907, about twenty-four members of this club went from Elkton to Havre de Grace by defendant's train, and gave an entertainment at night in the Opera House at that place; that after the close of the exhibition the plaintiff, with other members of the company, went to the station of the defendant about ten o'clock P.M. to take a train back to Elkton; that while he was occupying one of the benches in defendant's waiting room and behaving in a quiet and orderly manner he observed Milton Baldwin, an officer of the defendant, approach Earnest Moore, another member of the theatrical troupe, seize him and pull him from the bench upon which he was sitting in the waiting room, throw him upon the floor and place his knee upon his breast; that he stepped over to Baldwin and asked him what Moore had done and what he was going to do to him, and that Baldwin, without replying, struck him over the shoulders with an officer's club, knocking him to the floor; that he got up, went back to his seat and sat down; that afterwards, while standing in the station with his hands in his pockets, Baldwin directed Richard Kelley, a Deputy Sheriff of Havre de Grace, to arrest him; that Kelley did arrest him and handcuff him to Moore and both he and Moore were taken by Baldwin and Kelley to the jail in Havre de Grace and locked up; that Baldwin had the key to the lockup and personally placed plaintiff and Moore in the cell; that the cell in which they were confined was cold, wet, and uncomfortable, and that they were detained therein until the afternoon of March 6th when they were discharged; *Page 40 that in consequence of the wet and unfit condition of the cell the plaintiff contracted a severe cold, and was confined in his house for several days in charge of a physician. The evidence offered in behalf of the plaintiff tended to show that he was not smoking in the waiting room, and that he was conducting himself in a proper manner and that the treatment to which he was subjected by Baldwin was utterly unwarranted and was a gross outrage upon him.
The evidence on the part of the defendant tended to show that while the members of the troupe were in the station, or waiting room, on the night mentioned, waiting for a late train to take them back to Elkton, the plaintiff and Earnest Moore began smoking cigarettes in the main waiting room in violation of the rules and regulations of the railroad company; that these rules were indicated by "no smoking" signs hung upon the walls of the room; that the plaintiff and Moore were warned by Baldwin not to smoke, and upon the refusal of Moore to stop smoking Baldwin attempted to eject him from the room; that Moore assaulted Baldwin and was placed under arrest; that the plaintiff seized Baldwin by the shoulders and got upon his back to prevent him from putting Moore out of the room, and for the assault and interference Baldwin caused the arrest of the plaintiff and placed him in the lockup where he remained until the next day.
Baldwin was an employee of the defendant. He had formerly had charge of the flower gardens along the line of the road from Philadelphia to Washington, and later was put in charge of the freight house at Havre de Grace. A few months before the matters complained of in this case he was appointed night watchman at the new passenger station of the defendant at Havre de Grace. He had charge of the grounds, station, furnace and baggage at night. He had strict orders to stop smoking in the waiting room, and it was his duty to stop any general disorder around the station. Shortly after his appointment as night watchman he was appointed by the Mayor of Havre de Grace as a special officer of the Pennsylvania Railroad, and qualified as such before a Justice of the *Page 41 Peace, and was given a certificate of his appointment, and thereafter acted as such officer under that appointment. These are all the facts that need be stated to enable us to dispose of the questions presented by the appeal.
Assuming the plaintiff's evidence to be true, the principal question in the case is whether the defendant is liable for the acts of Baldwin complained of in the declaration. The statement of the rules of law upon this question will necessarily determine the legal sufficiency of the declaration. By the undisputed evidence the plaintiff was a passenger of the defendant at the time the alleged trespasses were committed. He had entered a room provided by the defendant company for the accommodation of passengers to wait for a train to take him to his home. This under all the authorities establishes the relation of carrier and passenger. The rule is well settled that a person is a passenger who enters upon the depot grounds for the purpose of taking passage on the train of the carrier. The fare does not have to be paid, nor the train entered; but the person must merely enter within the control of the carrier at the depot through the usual channels of business with the intention of becoming a passenger by either paying fare before, or after entering the train. B. O.R.R. Co. v. Chambers, 81 Md. 384. As a passenger he was entitled to protection against all wrongs done by the employees of the defendant, and for such wrongs done by them whilst they were engaged in and about the performance of their prescribed duties, the master would be liable.
The plaintiff was required to show, as a condition precedent to his right to recover, first, that the wrongs sued for were done by an agent or employee of the defendant; secondly, that the employee was acting at the time within the scope of his employment. Without legally sufficient evidence tending to establish these two facts no case of this nature should be submitted to the jury, and, when submitted, no verdict against the defendant should be rendered unless the jury are satisfied of the existence of these essential facts. These principles are too firmly settled by the decisions in this *Page 42 Court to admit of dispute. Carter v. The Howe MachineCompany, 51 Md. 290; Central Railway Company v. Peacock,69 Md. 263; Deck v. B. O.R.R. Co., 100 Md. 168; B.C. A. Ry.Co. v. Twilley, 106 Md. 445; Tolchester Co. v. Scharnagl,105 Md. 199; B.C. A. Ry. Co. v. Ennalls. 108 Md. 75.
It has become a common practice for certain corporations to have some of their employees appointed as special officers to protect their property and to maintain order upon trains and around the station. In such cases the question as to the capacity in which the servant was acting at the time of committing the wrong sued for is for the jury to decide. We said in Deck'sCase, supra, that the question as to whether the act of the servant complained of is within the scope of his duty while acting in the furtherance of his master's business is generally to be determined by the jury as a matter of fact and not by the Court as a matter of law. In Scharnagl's Case, supra, where a passenger had been assaulted, arrested, and imprisoned by a servant of the defendant company and who was also a commissioned officer of the State, we said, in discussing the liability of the company for the acts of its servant, that "the relation of passenger and carrier being shown to exist between the appellant company and Joseph Scharnagl, the law imposed upon the carrier a primary duty to protect him during the existence of that relation, and if he were unjustifiably assaulted or arrested, or imprisoned while that relation continued by the servants or agents of the carrier, while acting within the scope of their duty, the carrier would be liable." In Central Railway Company v. Peacock, supra, it is said: "The Supreme Court of the United States, in New Jersey Steamboat Company v. Brockett,121 U.S. 645, decide unequivocally that the carrier of passengers must protect his passengers from the violence of the carrier's employees, as also from that of other passengers; but there is nothing in the decision in conflict with the doctrine, that to render it liable the employee must be at the time acting in the employment of the railroad, and within the line of his *Page 43 duty, and the decision assumed that the party injured is a passenger when injured; for that was the fact in the case."
Tested by these rules the first count of the declaration is sufficient as it shows that the trespasses were committed upon a passenger by an employee in charge of the waiting room of the defendant company. This, under the authorities cited, sufficiently shows that the wrongs sued for were done by a servant of the defendant acting within the scope of his duties. The demurrer to that count was properly overruled. The additional count is clearly bad. It seeks to make the company liable from the mere fact that the plaintiff was assaulted, arrested, and imprisoned "by an officer, or agent of said defendant and in its employ" while he was a passenger. This, under Peacock's Case,supra, and other cases, is not sufficient, and, therefore, the demurrer to that count should have been sustained, and for this reason the plaintiff's first prayer should not have been granted. The plaintiff's second prayer would have been proper had there been in the case a good count under which the plaintiff could have have recovered for the false arrest and imprisonment complained of; but as there was no such count in the declaration it was error to have granted that prayer.
The plaintiff's third prayer is upon the subject of damages, and that part of the prayer which states the rule for the allowance of exemplary damages is bad. It advised the jury that they might allow exemplary damages if they found the "unlawful act was done deliberately and with unnecessary violence." It appears to be well settled in this State that mere deliberateness and unnecessary force or violence is not the test of punitive damages. This Court in the case of P.W. B.R.R. Co. v.Hoeflich, 62 Md. 307, has stated the rule under which punitive damages may be allowed in cases of this kind. In discussing a prayer substantially like the one we are considering, JUDGE ROBINSON said: "The force and deliberation with which the wrongful act is done, are not necessarily the tests by which the question of punitive damages is to be determined. On the contrary, to entitle one *Page 44 to such damages there must be an element of fraud, or malice, or evil intent, or oppression entering into and forming part of the wrongful act. It is in such cases as these that exemplary or punitive damages are awarded as a punishment for the evil motive or intent with which the act is done, and as an example, or warning to others. But where the act, although wrongful in itself, is committed in the honest assertion of a supposed right, or in the discharge of duty, or without any evil or bad intention, there is no ground on which such damages can be awarded. In Phila., Wilm. and Balt. Railroad Company v.Quigley, 21 Howard, 202, 214, MR. JUSTICE CAMPBELL says: `Wherever the injury complained of has ben inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in a spirit of mischief, or of criminal indifference to civil obligations.' And in the still later case, in the same Court, of Milwaukee Railroad Company v.Arms et al., 91 U.S. 489, 493, MR. JUSTICE DAVIS said: `Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them * * * The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.' We might multiply the cases on this subject if necessary, all concurring that exemplary damages are awarded as a punishment for the evil motive, or intention with which the unlawful act is done, and as a warning or example to others."
There was error in the ruling embraced in the first exception, as there was no count in the declaration upon which the *Page 45 plaintiff was entitled to recover for the alleged false imprisonment. Had there been such count the evidence embraced in this exception would have been properly admissible. It is true that ordinarily a defendant could not be held liable for the manner in which public officials treat persons committed to their custody; but under the facts in evidence the suffering endured and the treatment received by the plaintiff in the lockup would have been proper for the jury to consider. Baldwin is shown to have had control of this jail and knew its condition when he placed the plaintiff in the cell, and if the master was responsible, under the rules stated for the acts of the servant, we see no good reason why the evidence as to the condition of the cell would not have been admissible. It would have been clearly competent, under the authority of Hoeflich's Case, supra, upon the question of punitive damages.
There was reversible error in the rulings in the second and third exceptions. The witness, Morrison was asked whether Baldwin had made other arrests during the time of his employment by the defendant and prior to March 5, 1907. The purpose of this evidence, it is said, was to show that Baldwin was acting within the scope of his duty at the time he arrested the plaintiff. It is difficult to see how this testimony can have the slightest tendency to prove the facts sought to be established. When these arrests were made, or under what circumstances, or whether Baldwin had authority to make them does not appear, and the admission of such testimony was calculated to do the defendant substantial injury. It is said however, that the defendant was not damaged by the admission of this testimony, because it was subsequently proved that Baldwin had arrested other people and placed them in the lockup. This class of testimony does not fall within the principle so often announced that the Court will not reverse the judgment where competent evidence favorable to the plaintiff's case has been first excluded, and afterwards admitted, because in such cases it is apparent that no injury *Page 46 has been done. The defendant in this case has a right to stand upon his exception to the admission of the testimony.
Why the Court struck out the testimony offered to show that Kelley and Baldwin were public officers is not shown by the record. Baldwin was, however, acting as a special officer under the belief that he was properly appointed. The validity of his appointment was an entirely collateral matter. The real question was in what capacity he was acting at the time of the assault alleged, whether as a servant of the defendant or as a peace officer under what he regarded a valid appointment and qualification. This was a question for the jury, and the evidence striken out should have remained in the case as reflecting upon that question. For this reason the plaintiff's special exceptions to the defendant's fifth and sixth prayers should not have been granted.
The defendant's special exceptions to the plaintiff's third prayer was property overruled, as there was evidence, if believed by the jury, which would have authorized them in their discretion, under proper instructions, to award exemplary damages. There was no error in refusing the defendant's fifth and sixth prayers, as it got the full benefit of all the defenses to which it was entitled under its granted prayers. This disposes of all the questions presented by the appeal. For errors committed in overruling the demurrer to the additional count of the declaration, and in granting the plaintiff's first, second and third prayers, and in the rulings covered by the first, second and third exceptions the judgment will be reversed.
Judgment reversed with costs and new trial awarded. *Page 47