Reheard June 14, 1923.
Burks, J.,delivered the opinion of the court.
In the former opinion we held that punitive damages could not be recovered against the Director General. Director General v. Gravins (Va.), 112 S. E. 869. We adhere to that conclusion for the reasons stated in the opinion, and also because punitive damages cannot be awarded against a corporation for the act of its servant, unless such act was previously authorized or subsequently ratified by the corporation, whether the question be one of Federal.or State law. Lake Shore, etc., R. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. *33697; Southern R. Co. v. Grubbs, 115 Va. 876, 80 S. E. 749. The right to award such damages did not exist prior to Federal control, and was not conferred by the act of Congress (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § §3115%a-31'15% p) authorizing such control.
In the order granting a rehearing, two questions were submitted for re-argument by counsel and for reconsideration by the court. They were, (1) Does the statute authorizing an action for insulting words impose a liability upon a master for compensatory damages, for insulting words uttered by his agent in the course of his employment, when such words are neither authorized nor ratified by the employer?” and (2) “If so, is there any difference in this respect between the Director Gen•eral of Railroads and any other employer?”
The first of these questions was considered and discussed in the former opinion, but, upon the rehearing, the members of the court were not in harmony on the subject. Upon the second question, however, we are of opinion that the action against the Director General cannot be maintained, for the reasons hereinafter stated, and that renders any expression of opinion on the first question unnecessary. The proper answer to that question is therefore left open for future consideration when it shall be necessary to answer it.
Assuming for the purposes of the case, that a corporation is liable for compensatory damages under the facts stated in the first question, “Is there any difference-in this respect between the Director General of Railroads and any other employer?” We are of opinion that there is.
When the Federal government took possession and control of all the railroads of the country, it had the power to forbid any actions or suits against it growing-*337out of their operation, or, if it permitted such actions or suits, to prescribe in what courts, for what causes of action, within what time, and upon what terms and conditions, it would permit itself to be sued. It chose the latter course, and gave expression to its will in what is designated as the Federal control act, 40 Stat. 451 (Comp. Stat. 1918, sec. 3113%-j). Section 10 of that act, so far as need be recited, is as follows:
“Carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control, or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers, and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government. * * But no process, mesne or final, shall be levied against any property under such Federal control.”
By the terms of this section the companies were left subject to suit as before Federal control, except so far as not inconsistent with that act, or other acts applicable to Federal control, or “with any order of the President,” but the pl'aintiff was prohibited from enforcing the judgment against any property under Federal control. The President, through the Director General, in pursuance of the policy of the act, promulgated General Order No. 50a, which so far as need be recited, is as follows:
“Whereas, since the Director General assumed control of said system of transportation, suits are being brought and judgments and decrees rendered against *338carrier corporations on matters based on causes of action arising during Federal control for -which, the said carrier corporations are not responsible, and it is right and proper that the actions, suits, and proceedings hereinafter referred to, based on causes of action arising during or out of Federal control, should be brought directly against the said Director General of Railroads and not against said corporations: It is therefore ordered that actions at law, suits in equity and proceedings in admiralty hereafter brought in any court, based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad, or system of transportation, by the Director General of Railroads, which action, suit or proceeding but for Federal control might have been brought against the carrier company, shall be brought against the Director General of Railroads, and not otherwise: Provided, however, that this order shall not apply to suits, actions, or proceedings, for the recovery of fines, penalties and forfeitures.”
It will be observed that this “order of the President” put some limitation on the rights of litigants which they would otherwise have had but for that order. It forbids any recovery of “fines, penalties and forfeitures,” and it also limited the causes of action for which actions or suits might be brought to those (1) based on contracts, binding upon the Director General of Railroads, (2) claims for death, (3) claims for injury to person, and (4) claims for loss or damage to property. The validity of order 50a was expressly upheld as to fines, penalties and forfeitures in Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087; and in Alabama & V. R. Co. v. Journey, 257 U. S. 111, 42 Sup. *339Ct. 6, 66 L. Ed. 154, a general order oí the Director General prescribing-the venue of suits under the Federal control act was upheld on the ground that enforcement of liability under the act was permitted only “in so far as (not) inconsistent * * * with any order of the President.”
In Ellis v. Atlanta B. & A. R. Co. (D. C.), 270 Fed. 279, from the northern district of Georgia, Sibley, J., quotes from section 10 of the Federal control act the following: “Carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control, or with any order of the President.”- Of this provision, he says: “Though this sentence relates rather to the existence of the liability than to the mode of its enforcement, it clearly authorizes the President to withdraw liability altogether to any extent to which he may find its existence incompatible with the purpose of the government control.”
The power of the President to make, and the validity of, general order No. 50a seem to be fully sustained by the cases cited. It seems manifest also that one of the objects of the order was to limit the causes of action upon which the government gave its consent to be sued to the classes of cases hereinbefore mentioned. No other reason can be assigned for the classification of the causes of action mentioned in the order. If it was not intended to impose a restriction, there was no necessity or propriety in making the classification, as the statute otherwise covered the whole ground. The statute, however, while giving very comprehensive rights of action, expressly excepted cases that were inconsistent with “any order of the President,” and the President deemed *340it wise to restrict the right to the classes of cases designated in general order No. 50a. The term “claim for death or injury to person” shows plainly that the injury to person referred to was a physical injury to the person and not an injury to the feelings or reputation. He withdrew all other causes of action from the operation of the act, and restricted the right to sue to the classes of cases mentioned.
There were good reasons for the restriction. The government had assumed large pecuniary obligations, and while it desired to put the public to as little inconvenience as possible in asserting demands of a substantial nature, it recognized the necessity of conserving the assets of the companies, and to this end cut off the right of recovery of fines, penalties and forfeitures, and for invisible injuries the existence of which could not be disproved and for which the law provided no measure of compensation, such as mental anguish for á private insult. Under the Federal control act, there was guaranteed by the government during Federal control to each transportation company taken over, as a just compensation, “an annual sum, payable from time to time in reasonable installments, for each year and pro rata for any fractional year of such Federal control, not exceeding a sum equivalent as nearly as may be to its annual railway operating income for the three years ended June 30, 1917.”
“Beyond doubt also, for the purpose of enabling the United States to perform the obligation which it assumed and to secure it from ultimate loss from the pecuniary responsibilities which might result, including the repayment to it of an appropriation of $500,000,000, which the act made applicable, all of the earnings of the railroad were by the act expressly made the property of the United States.” Northern Pac. R. Co. v. North *341Dakota, 250 U. S. 135, 145, 39 Sup. Ct. 502, 504, 63 L. Ed. 897.
To meet these heavy obligations, it was necessary not only to have a conservative economic administration of the affairs of the railroad companies, but also to cut off litigation of the class of the case at bar, where no physical injury was inflicted, no damage done to property, no contract violated, and where the scales of justice could not be so adjusted as to measure in dollars and cents the extent of the mental hurt inflicted. It is clear from the collection of the words, that mere mental anguish was not an “injury to person,” within the meaning of the general order.
It may be that there are some general expressions in the opinion in the Ault Case, which, taken in the abstract, militate against the conclusion we have reached, but the court was there dealing with an entirely different state of facts and its generalizations must be read in the light of the facts of that case. It was not called upon to determine whether or not general order No. 50a classified the cases in which actions or suits might be brought against the government, and did not consider that question. It had no such question in mind, and it cannot be said that a court has decided a question which it did not have in mind or intend to decide.
For the reasons stated, we adhere to the judgment heretofore entered in the ease.
Reversed.