concurring:
I concur in the conclusion of the Chief Justice that the judgment in this case must be reversed upon the ground that excessive damages were awarded. But as my conclusion depends upon reasons which are, to some extent, different from those which he has set forth in his opinion, I have thought proper to state, very briefly, my own views of the case.
Upon the first point discussed, I concur in the opinion that'the motion to transfer the cause to the United States court was not supported by a sufficient affidavit, and that it was properly overruled for that reason. I doubt, however, if the course suggested as the proper one to have been pursued would have brought the corporation defendant within the terms of the act of congress upon which it relied. That a corporation may, in some manner, avail itself of the provisions of that lav has been assumed, without being expressly decided, by the supreme court of the United States (19 Wall. 214), and that case is probably binding authority on the state courts. But how a corporation can comply with the conditions of the law is something that has never been pointed out to. my satisfaction. If I believed, as was held in the case just referred to, that the law, being of a remedial nature, ought to be liberally construed, I could see how, by the aid of a very liberal construction, its benefits might be extended to a corporation. But I think the opinion generally expressed by the state courts, that its op*374eration should not be aided by construction, is the correct one. On its face the law is manifestly unjust in its provisions, and gratuitously unjust. Judging by my own experience, I venture to say that if the suffrages of the nisi prius judges in the different states could be collected, they would declare, with few dissenting voices, that the operation of the law is odiously unfair and oppressive. If such ’is the case, as I believe it to be, the law certainly deserves no favor from a court of justice, and so far from extending its operation by construction, it should be restricted within the narrowest possible limits. So restricted, it does not apply to corporations. It is true there is no good reason why, if an unfair advantage was to be given to a class of litigants, it should not have been given to corporations as well as to natural persons. But', on the other hand, it is at least equally true that if the terms upon which that unfair advantage can alone be. enjoyed are such that a corporation cannot comply with them, no court of justice is called upon to stretch the provisions of the law in order to make it include corporations. It is to be hoped, if this question is ever fairly presented in the supreme court of the United States, the rule of strict construction will be adopted there, and the assumption that corporations stand upon the same footing as natural persons, Avith respect to this law, repudiated. In the meantime the state courts maj'- have to submit to an ill-advised construction of the law, but in doing so they should not fail to protest against it. This preliminary question disposed of, the case upon its merits appears to me to be an extremely simple one. The plaintiff claims damages for being forcibly ejected from the defendant’s cars. The defendant, by its answer, admits that he Avas so ejected, and justifies the act upon the ground that he had not paid for the ticket Avliich he offered to the conductor. This, in my opinion, relieves the case of one of the questions discussed by the chief justice, viz.: AA'hether the master is responsible for the Avillful acts of the servant. Bor there is no pretense that the conductor was actuated by any express malice in ejecting the plaintiff, or that he used any unnecessary force, or Avas guilty of any wanton outrage *375to liis feelings. He simply did what he deemed to be his duty to his employers, and they have avowed and ratified the act, making it their ovra and assuming all the responsibility.
The only question, therefore, which, the jury had to decide, in order to determine whether the plaintiff was entitled to recover, was this: Did he or did he not pay for his ticket ? If he did he was entitled to a verdict. If he did not the defendant was entitled to a verdict. Upon this issue the jury, under proper instructions, found for the plaintiff, and there was abundant testimony to sustain such finding. The only remaining question was as to the measure of damages, and, in my opinion, this question also was settled by the pleadings. It seems to be well settled, that for any willful trespass to the person, the injured party may recover what are called exemplary or vindictive damages. The forcible expulsion of a passenger from a public conveyance when he is rightfully there, necessarily involves a trespass to the person, (in this case, it involved an assault and battery,) and it is a wrong which is inevitably accompanied with more or less of outrage and insult. No matter how mildly a conductor may behave—no matter how honestly he may be mistaken, a passenger cannot be forcibly thrust out of a car where he has a right to be, without being insulted and outraged in his feelings. And if there is no excuse for the act, except the mistake of the carrier, and that mistake is solely due to the carrier’s negligence, it will be the same as if there was no excuse at all, and the law will imply that the act was malicious. So in this case, if the plaintiff did pay for his ticket, as the jury have found that he did, the mistake of the defendant cannot be pleaded as an excuse for his expulsion from the cars, and he was entitled to vindictive damages if he was entitled to any damages at all. That vindictive damages include compensation for the outrage to the feelings is well settled by the authorities, and is not opposed by the case of Johnson v. Wells, Fargo & Co., in which this court went no further than to hold that mental pain, as distinct from bodily pain, is not the subject of compensation in a case where the injury is the result of negligence. *376This, as I have endeavored to show, is not a case of negligence, but of willful injury, and the correctness of the decision in Johnson v. Wells, Fargo & Co., may be conceded without any impeachment of the rulings of the district court upon the instructions relating to the rule of damages in this case.
As to the question, whether a jury in awarding vindictive damages can go beyond a full compensation to the plaintiff for his pecuniary loss, and bodily and mental suffering, and add a further sum, by way of punishment to the defendant, for the sake of example, I think the weight of reason and the best considered cases are in favor of restricting the award to compensation to the plaintiff. Of course, the amount of compensation to which lie will be entitled will depend, in every case, upon the circumstances of the injury, and in case of gross and wanton outrage, heavy damages would be allowed, which, while they would go to the plaintiff as a compensation, would operate incidentally as a severe punishment to the defendant. In this sense, and in this sense only, in my opinion, is it proper to say that a defendant may be punished by vindictive damages.
It is for these reasons that I concur in-the opinion that the amount of damages awarded in this case evinces passion and prejudice on the part of the jury. If the injury complained of had been attended by any special circumstances of wanton injury, five thousand dollars might not have been an extravagant verdict; but considering the facts proved, it certainly was excessive.
Earll, J., having been of counsel in the court below, did not participate in the foregoing decision.