Pleading-Al cient. petition did not undertake to give a specific catalogue of the plaintiff's injuries. It alleged, however, that he legation of in- was "injured in his spine, chest, head, and limbs," juries suffi- and this is sufficiently comprehensive to embrace a heart disease, or an aneurism of the blood-vessels situated in the chest. The special instruction under consideration would have excluded such diseases from the computation of the damages, although the jury may have believed that they were produced by the injury. The court did not err in refusing the charge. There is no error in the judgment, and it is affirmed. PHILADELPHIA TRACTION CO. ข. ORBANN. (Pennsylvania Supreme Court, February 27, 1888.) Peronal Injuries-Newsboy-Employee-Statutory Limitation of Recovery. -A newsboy engaged in selling newspapers, and permitted to pass in and out of traction cars for that purpose, but not engaged or in any way employed by the company, is not an employee on or about the road of the company within the meaning of the Pennsylvania statute, giving persons so engaged or employed such right of action and recovery only as would exist if such person were an employee. Same-Punitive Damages-Liability of Corporation-Previous Authority-Ratification. In an action against corporations for injuries received through the negligence of their servants, exemplary damages may be recovered, when the injuries are wanton and malicious, or are inflicted in a gross or outrageous manner, although the act may not have been previously authorized or subsequently ratified by the corporation. Same-Act of Conductor.-In an action by a newsboy to recover damages for personal injuries, it appeared that he was engaged in selling papers on street cars; that when on the point of leaving the car he stopped to allow a wagon to pass; that the conductor pushed him on the arm and he fell upon the street and was run over. There was no evidence that the act was wilful or wanton, or that the conductor was moved by feelings of violence, outrage or reckless indifference to consequences. Held, that upon the evidence the plaintiff was not entitled to recover exemplary damages. Sterrett, J., dissents. ERROR to Court of Common Pleas, Philadelphia County. Action by Charles T. Orbann, by his next friend Harry McNight, against the Philadelphia Traction Co. to recover damages for personal injuries. There was a verdict and judg ment for plaintiff, from which defendant appeals. The provision of the act of April 4, 1868 (P. L. 58), referred to in the opinion is as follows: "When any person shall sustain personal injury, or loss of life, while lawfully engaged or employed on or about the roads, depot, and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee: provided, that this section shall not apply to passengers. Gavin W. Hart and David W. Sellers for plaintiff in error. A. S. L. Shields for defendant in error. Facts. CLARK, J.-Charles T. Orbann brings this suit against the Philadelphia Traction Co., to recover damages for a personal injury received through the alleged negligence of the company's servants. It is contended on part of the company, in the first place, that Orbann, at the time of the injury, was engaged or employed on or about the road or cars of the company, within the meaning of the act of 4th April, 1868 (P. L. 58,), and, therefore, that his right of action and recovery was only such as he would have if he were an employee of the company; that the conductor must be regarded as a fellow-employee, and if the injury arose from the conductor's act, the company is not liable. We are not inclined to favor that view of the case. Orbann was a newsboy engaged in selling newspapers; his employment was not on the cars; he was only casually there; he sold to all, whether in or out of the car, and was suffered to pass in and out for this purpose at his pleasure. He was not a trespasser, however. The usage of the company, at that time, was to permit newsboys upon their cars without objection; but while he was on the car, he was neither engaged nor employed in the performance of any act or business connected with the road or its works. As well might we say that those who, in the regular course of business, pass with wagons, etc., up and down the company's tracks, in case of injury from the company's negligence, would be regarded as employees, because they were at the time engaged or employed on or about the company's road. It is certainly absurd to suppose that the act of 1868 was intended to have any such application. The persons who were in contemplation of the legislature in the act of 1868 are those who, although not employees of the company, are nevertheless engaged or employed on or about the company's road or works, in the performance of some act or business connected therewith. 34 A. & E. R. Cas.-28 damages. In the second place, the company contends that the court erred in the general charge as to the measure of damages, according to which the plaintiff was entitled to reInstruction as cover, if the jury should find in his favor. "He is to measure of entitled," says the learned court, in the general charge, "to have compensation for the pain and suffering he has undergone, or is undergoing, or is likely to undergo, by reason of his injuries. He is entitled to recover for whatever may be the value of any diminution of his power, as an earner of wages, in the support of himself. If his capacity for earning has been in any way diminished by this accident, he is entitled to money compensation for the value of that diminution. He is entitled to be compensated, in other words, for all the substantial injury to his capacity to earn money, and for all the injury to his comfort and happiness, and for all the pain and suffering he has undergone as a result of his accident. These are the elements that he is entitled to receive compensation for. In addition to that, if you should find in this case wanton and wilful misconduct on the part of the agent and servant of this defendant corporation, you would be entitled to give this plaintiff such damages as you should consider in your judgment as punitive as a punishment for such wilful and wanton misconduct, but only if you should find it to be wilful and wanton." When corpora in exemplary tions are liable damages for acts of servants. It is contended that, as there was no proof of any previous direction, or of any subsequent ratification of the conductors' act on part of the company, the court erred in permitting the jury to impose punitive damages; in other words, that the company cannot be punished for the wanton and wilful act of a mere agent. It seems to be settled by the preponderance of authority in this country that, in actions against corporations for injuries received through the negligence of their servants, exemplary damages may be recovered, when the injuries are wanton and malicious, or are inflicted in a gross or outrageous manner, whether the act was previously authorized or subsequently ratified by the corporation or not. It is scarcely necessary, we think, to refer in detail to the numerous cases in which this doctrine is asserted. Some of them are collected in Sedg. Dam. 329, note, and in Sedg. Lead. Cas. 746, note; and we may cite the following cases, among many others, sustaining this view of the law: Railroad Co. v. Dunn, 19 Ohio St. 162; Railroad Co. v. Bryan, 90 Ill. 166; Hopkins v. Railroad Co., 36 N. H. 9; Railroad Co. v. Larkin, 47 Md. 155; Goddard v. Railway Co., 57 Me. 202; Evans v. Railroad Co., 11 Mo. App. 463; Railroad Co. v. Kendrick, 40 Miss. 374; Bowler v. Lane, 3 Metc. (Ky.) 312; Railroad Co. v. Quigley, 21 How. 202; Railroad Co. v. Arms, 91 U. S. 489. In New York and some other States the law would appear to be otherwise. Cleghorn v. Railroad Co., 56 N. Y. 44. In Massachusetts, damages would seem to be given in such cases, on the the ground that wantonness in the wrongful act is an aggravation of the injury. They are said to be given not as a punishment, however, but as a compensation for the added insult and increased mental distress, which arise where the injury is inflicted through malice, etc. In Pennsylvania, since the case of Railroad Co. v Rosenzweig, 113 Pa. St. 519; s. c., 26 Am. & Eng. R. R. Cas. 489, the rule would seem to have been settled in accordance with the preponderance of the cases. In that case, Rosenzweig entered the cars at Cleveland. He was riding upon what was known as a “roundtrip ticket," and it was alleged that, according to the regulations of the company, this form of ticket was not good on that train. When the conductor entered the car, and called "Tickets," Rosenzweig handed his ticket to the conductor, who handed it back, and pulled the bell-cord to stop the train. The conductor told him his ticket was not good, and he had orders to put him off. Rosenzweig insisted that his ticket was good, but offered to pay his fare. The conductor then said: "My orders are to put you off, and off you must go. Come." Rosenzweig said: "For God's sake, don't put me off here; carry me to a station." The conductor replied: "My orders are to put you off, and off you must get; I obey orders if I break owners." Rosenzweig was compelled to leave the train. He was a mile or more from the Cleveland depot; was in the dark, in a strange place, in the midst of many railway tracks, with cars and locomotives passing and repassing. While groping his way, he received the injury for which he sued the company. Our Brother Trunkey, in writing the opinion of this court, said: "If there was no wilful misconduct by the conductor, how can it be said that he was not recklessly indifferent to the consequences likely to befall the plaintiff? If the suit were against him there could be little question that the jury would be permitted to give exemplary damages. The liability of railway and other corporations to exemplary damages for gross negligence is well settled. The general rule in cases for negligence is that only compensatory damages can be given. Juries are not at liberty to go further than compensation, unless the injury was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to a violation of them. There must be wilful misconduct, or that entire want of care which would raise a presumption of conscious indifference to consequences. Railway Co. v. Arms, 91 U. S. 489. The corporation is liable for exemplary damages for the act of its servant, done within the scope of his authority, under circumstances which would give such rights to the plaintiff, as against the servant, were the suit against him, instead of the corporation." There may be grave doubts expressed as to the propriety of the rule, but if the doctrine of this case is adhered to, the responsibility of a corporation, in exemplary damages, for the wanton and wilful acts of its servants, is clearly established in Pennsylvania. But, under the evidence, was this a proper case for punitive damages? The rule that imposes this measure of damages is a severe one at the best, and if the master must not only compensate the injury, but may be held up as a public example, in the payment of "smart money," for the wanton and malicious act of another, an act he neither authorized nor approved, and of which he may be wholly innocent,merely because of the existing relation of master and servant, the plainest principles of justice require that great caution should be observed in its application. Moreover, the wellknown disposition of juries to return excessive verdicts in this class of cases has shown that the doctrine, although de signed for the promotion of the public good, is capable of great practical abuse. It is upon this ground, more than any other, perhaps, that the rule has not been universally recognized. Exemplary damages are allowed only where the act complained of has been committed wilfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness. Nagle v. Mullison, 34 Pa. St. 48. When there is no evidence which would fairly justify a jury in finding that the wrongful act was of the general character stated, the question of exemplary damages should not be submitted to the jury. In the absence of proof of these circumstances of aggravation, compensation merely is the rule. Nagle v. Mullison, supra. To leave the question of punitive damage to the jury, when there is no evidence which would warrant a verdict for other than compensatory damages, or even to instruct them that they may find such damages as they may see proper, is error. Railroad Co. v. Taylor, 104 Pa. St. 306; Rose v. Story, 1 Pa. St 190; Amer v. Longstreth, 10 Pa. St. 145. Therefore, in Rail. road Co. v. Slusser, 19 Ohio St. 157, where a passenger had been ejected from a train by mistake, or on misconception of his rights by the conductor, it was held not to be a proper case for exemplary damages, and upon that ground the judgment was reversed. So, in Railroad Co. v. Quigley, 21 How. 213, an action of libel, in which exemplary damages were Same- |