(dissenting). — With my understanding of the law as it is, and as it should be, I cannot concur in the foregoing opinion. In the language of Judge Thompson, in his work on carriers and passengers, it seems to me, even in the face of authorities to the contrary, that “the rule which is in accord with reason and the weight of authority, is that passenger carriers, although corporations, may be liable, in a proper case, in exemplary damages, for injuries caused by their agents, without a direct authorization, or subsequent ratification, of the act complained of.” Thompson on Carriers of Passengers, p. 575. This view is sustained by other eminent judges and text-writers. One of the latter, in stating the law, uses *310the language, “as the corporation can only act through natural persons, its officers and servants, and, as it of necessity commits its trains or vehicles absolutely to the charge of persons of its own appointment, passengers of necessity commit to them their safety and comfort in transitu ; the whole power of the corporation, pro Tiac rice, is vested in such officers and servants, and, as to such passengers, they are the corporation.” This being the rule, it follows that, by a preponderance of authority (in the same writer’s opinion), no prior express authority to commit the oppressive act, nor any subsequent ratification thereof, is required to impose exemplary or punitive damages on the corporation. 3 Sutherland on Damages, p. 271, and authorities there cited. Also, 1 Redfield on Railways, sec. 130, and notes, and note, sec. 187; 2 Redfield on Railways, in criticism of Hagan v. Railroad, 3 R. I. 88, etc.
By the opinion of the majority herein, it is admitted that the passenger-carrier corporation is liable for such damages wrongfully committed by the conductor while managing and operating the trains as are denominated “compensatory damages,” but that the corporation is not responsible for exemplary damages, except it appear that it had notice of the cruel and oppressive acts of the conductor, and ratified the same, or had previously directed such malicious conduct. This is noted in the opinion as an exception to, or qualification of, the general rule, and reliance is placed on decisions reported in 55 Mo. 20166 Mo. 536, and 18 Mo. App. 609. This contention grows out of a remark made by Judge Vories in Perkins v. Railroad, 55 Mo. 214, where the learned judge, after admitting the right of the injured and insulted plaintiff to recover exemplary damages from the corporation, for the wilful and malicious wrongs of the conductor, voluntarily stated (on a point not in issue in that case) “that a principal cannot, in general, be compelled to pay exemplary damages for the fault of his agent, if it be neither *311ratified nor authorized by the principal.” The case decided was that of an alleged wrongful and malicious expulsion from a passenger car; and it was in answer to the position of the appellant in that case, to the effect that the railroad company was not liable for injuries wilfully and maliciously committed by the conductor, nor for exemplary damages, that Judge Tories used the. above language. Exemption was not claimed by the corporation on account of there being ¿ discharge of the offending conductor, after notice of his treatment of the plaintiff, nor was the point made that the corporation would have been released of the exemplary damages if the company, on notice of the conductor’s malicious acts, had dismissed him from its service. No such issue was made by the pleadings in the circuit court, nor was such an issue presented in the appellate court. But the supreme court affirmed the judgment below (which was for the plaintiff), and expressly approved an instruction given by the court, to the effect that, if, in removing the plaintiff from the car, the conductor did the act in a malicious, cruel and inhuman manner, the defendant railroad company was responsible in exemplary damages, without coupling such general proposition of liability with any qualification whatever. Now, as to what effect we should give this expression of Judge Tories in the case, supra, defendant’s able and industrious counsel have furnished us the words of a great jurist in disposing of the comments of the opinion-writer, when going further than the case in hand demanded. Mr. Chief Justice Marshall said: “It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its *312full extent; other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. What is here said of the Perkins case, supra, applies with still more force to the Graham case, 66 Mo. 536, and the Randolph case, 18 Mo. App. 609. In neither was the question which we have in review in the case at bar fairly at issue before the court, and, hence, was not considered nor decided.
While then the cases before cited do not in my opinion furnish controlling matter for our decision here, the supreme court of Missouri has in other cases given us strong argument for the application of the general rule before contended for, to-wit: That where the officers or agents of a corporation act wantonly or maliciously, the corporation may be held to answer in exemplary damages, and that, too, without proof of prior express authorization or subsequent ratification. Hicks v. Railroad, 68 Mo. 329; Travers v. Railroad, 63 Mo. 421; Doss v. Railroad, 59 Mo. 27; Eckart v. Transfer Co., 2 Mo. App. 46; Maleck v. Railroad, 57 Mo. 17. It will be found, in an examination of these decisions, that they uniformly recognize the liability of the corporation for exemplary damages where the injury is committed by the officer or agent in the line of his employment and is attended by circumstances of oppression, insults or malice ; and that in adhering to this doctrine, announcing and reannouncing the same, there is no qualification attached (as is contended for by defendant) that the corporation is not liable for such punitive damages unless it had previously authorized the malicious acts, or had subsequently, on notice, approved the same. I do not claim these cases furnish precedents controlling the case now under review. The exact point here made was not presented there ; at least, it does not so appear from the published opinions. They are, however, potent, as argument, in support of *313this plaintiff’s right to have the judgment herein affirmed. As I view the decisions this exact question is res nova in this state ; and from the consideration of decided cases elsewhere I am of the opinion that reason and authority are in support of the ruling of the circuit judge who tried this case.
In Goddard v. Railroad, 57 Me. 202, et seq., is found a very vigorous and exhaustive review of this question; and. since our supreme court has, on two occasions, at least, cited the same with apparent approval (55 Mo., pp. 213-214 and 57 Mo., p. 22) I beg to quote from the court’s opinion, and adopt its reasoning, so applicable to the facts of this case : “ The law requires the common carrier of passengers to. exercise the highest degree of care that human judgment and foresight are capable of to make his passengers’ journey safe. Whoever engages in the business impliedly promises that his passenger shall have this degree of care. * * * If the passenger does not have such care, but on the contrary is unlawfully assaulted and insulted by one of the very persons to whom his conveyance is intrusted, the carrier’s promise is broken, and his legal duty is left unperformed, and he is necessarily responsible to the passenger for the damage he thereby sustains.” This was said in reference to the general doctrine of liability for damages occasioned by the acts of the agent or employe of a carrier. Further on, in relation to the question of punitive or exemplary damages, the same court uses the following language: “Hut it is said that if the doctrine of exemplary damages must be regarded as established in suits against natural persons for their own wilful and malicious torts, it ought not to apply to corporations for the torts of their servants on a train (such as a brakeman in that case) when the tortious act was not directly nor impliedly authorized nor ratified by the corporation.” * * * “ We confess,” says the court, “that it seems to us that there is no class of cases where the doctrine *314of exemplary damages can be more beneficially applied than to railroad corporations in their capacity of common carriers of passengers ; and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded to maltreat and insult a passenger, or to cases where such an act is directly or impliedly ratified, for no such cases will ever occur. A corporation is an imaginary being. It has no mind but the mind of its servants. It has no voice but the voice of servants ; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands, and these minds and hands are its servants’ minds and hands. All attempt, therefore, to distinguish between the guilt of the servant and the guilt of the corporation; or the malice of the servant and the malice of the corporation ; or the punishment of the servant and the punishment of the corporation, 'is entirely fruitless,’ and only tends to confuse the mind and confound the judgment. Neither guilt, malice nor suffering is predicable of this ideal existence, called a corporation, and yet under cover of its name and authority there is in fact as much wickedness, and as much deserving of punishment, as can be found any where else. And since these ideal existences can neither be hung, imprisoned, whipped or put in the stocks, since in fact no corrective influence can be brought to bear upon them except that of pecuniary loss, it does seem to us that the doctrine of exemplary damages is more beneficial in its application to them, than in its application to natural persons.” * * * "Careful engineers can be selected who will not run their trains into open draws ; and careful baggage men can be secured, who will not handle and smash trunks and boxes as is now the universal custom, and conductors and brakemen can be had who will not assault and *315insult passengers; and if the courts will only let the verdicts of upright and intelligent juries alone, and let the doctrine of exemplary damages have its legitimate influence, we predict these great and growing evils will be very much lessened, if not entirely cured. There is but one vulnerable point about these ideal existences, called corporations, and that is the pocket of the moneyed power that is concealed behind them. * * * When it is thoroughly understood that it- is not profitable to employ careless, and indifferent agents, or reckless and insolent servants, better men will take their places, and not before. It is our judgment, therefore, that actions against corporations, for the wilful and malicious acts of their agents and servants, in executing the business of the corporation, should not form exceptions to the general rule allowing exemplary damages. On the contrary we think this is the very class of cases of all others where it will do the most good, and where it is most needed.” The Maine court supplements the foregoing with a liberal reference to other decided cases, supporting its views, found noted in 57 Me. 225, et seq.
The judgment of the trial court should, in my opinion, be affirmed,