I do not approve of the conclusion announced in the leading opinion, that an action cannot be maintained against the Director General of Railroads under federal administration, for damages resulting from the willful tort of one of his employees, committed while acting within the actual scope of his employment. It is unquestionably true under the cases decided by the Federal Courts and this Court, that the Director General is not liable under such circumstances for punitive damages, but I know of no case holding that he would not be liable for actual damages. The case of Rowell v. Hines, 114 S.C. 339;103 S.E., 545, does hold, "The Director General could not be sued for willfulness." The precise point was not raised or discussed, and while the quotation made would cover the point, I do not think that it was intended to declare more than his exemption from punitive damages. If it should be considered as going further and to the extent announced in the leading opinion, I think that it should be specifically limited to the extent indicated above.
In Missouri, etc.; R. Co. v. Ault, 256 U.S. 554;41 Sup. Ct., 593; 65 L.Ed., 1087, it is said:
"The government undertook as carrier to observe all existing laws; it undertook to compensate any person injured through a departure by its agents or servants from their duty *Page 513 under such law. * * * Wherever the law permitted compensatory damages they may be collected against the carrier while under federal control."
The willfulness with which a servant may have acted makes the act certainly none the less a departure from his duty, for which the Director General is liable if the law theretofore permitted to recovery of compensatory damages therefore. In the Federal Courts the recovery of punitive damages against the Director General for the willful torts of her servants is denied upon two grounds: (1) As a rule of law a master is not so liable. Railroad Co. v. Prentice,147 U.S. 101; 13 Sup. Ct., 261; 37 L.Ed., 97; (2) Punitive damages are allowed by way of punishment, and the act of Congress permitting suits to be brought against him expressly excludes the recovery of penalties. Railroad Co. v.Ault, 256 U.S. 554; 41 Sup. Ct., 593; 65 L.Ed., 1087. But nowhere is it held that a master, be he an individual, corporation, or a Director General, is exempt from liability for compensatory damages under the circumstances stated.
In the Prentice Case it is held:
"A corporation is doubtless liable, like an individual, to make compensation for any tort committed by an agent in the course of his employment, although the act is done wantonly and recklessly, or against the express orders of the principal."
I think, therefore, that the Circuit Judge, as matters stood when he made his ruling, was entirely right in refusing to sustain the demurrer to the complaint and the motions for nonsuit and directed verdict. Let these grounds be reported. He had not, up to that time, ruled, as he subsequently charged the jury, that the Director General could not be made liable for even compensatory damages for the willful tort of a servant. If upon the motions for a nonsuit or a directed verdict he had so ruled, although I think he would have been wrong, he should have granted one or the other of these motions, for there is nothing in the evidence tending to *Page 514 show that any one of the alleged acts of negligence, outside of the willful tort, was a proximate cause of the assault. And if after he had so charged the jury and a verdict had been rendered for the plaintiff, if a motion for a new trial had been made upon the ground that the verdict was contrary to the law as given by him, in the absence of evidence of any act of negligence outside of the willful tort as a proximate cause of the assault, it should have been granted; for right or wrong the duty of a jury is to follow the instructions of the Court.
Counsel for the appellant cite the case of Davis v. Green,43 Sup. Ct., 123; 67 L.Ed. — , which holds that if the servant was acting out of personal spite, wholly beyond the scope of his employment, the employer would not be liable. No such position was taken in any of the motions mentioned, nor in the exceptions or argument. While it is eminently correct, it has no application to this appeal.
I think therefore that the judgment should be affirmed.
MR. JUSTICE MARION concurs.