expresses the opinion that there is quite as much necessity for holding these companies liable to exemplary damages as their agents. He says it is difficult to perceive why a passenger, who suffers indignity and insult from the conductor of a train, should be compelled to show an actual ratification of the act, in order to subject the company to exemplary damages: 2 Redfield on Railways 231, note. But if such a ratification is necessary, he thinks the corporation, which is a mere legal entity, inappreciable to sense, should be regarded as always present in the person of its servant, and as directing and ratifying the servant's acts within the scope of his employment, and thus be made responsible for his wilful misconduct: 1 Redfield on Railways 515 et seq. And in a recent case in Maryland (published since this case has been pending before the law court), a case in all respects very similar to the one we are now considering, the presiding judge was requested to instruct the jury that the plaintiff was not entitled to recover vindictive or punitive damages from the defendants, unless they expressly or impliedly participated in the tortious act, authorizing it before or approving it after it was committed; but the presiding justice refused so to instruct the jury, and the full court held that the request was properly rejected; that it was settled that where the injury for which compensation in damages is sought is accompanied by force or malice, the injured party is entitled to recover exemplary damages: Railroad v. Blocher, 27 Md. 277. But the defendants say that the damages awarded by the jury are excessive, and they move to have the verdict set aside and a new trial granted for that reason. That the verdict in this case is highly punitive, and was so designed by the jury, cannot be doubted; but by whose judgment is it to be measured to determine whether or not it is excessive? What standard shall be used? It is a case of wanton insult and injury to the plaintiff's character and feelings of self-respect, and the damages can be measured by no property standard. It is a case where the judgment will be very much influenced by the estimation in which character, self-respect, and freedom from insult are held. To those who set a very low value on character, and think that pride and self-respect exist only to become objects of ridicule and sport, the damages will undoubtedly be considered excessive. It would not be strange if some such persons, measuring the sensibilities of others by their own low standard, should view this verdict with envy, and regret that somebody will not assault and insult them, if such is to be the standard of compensation. While others who feel that character and self-respect are above all price, more valuable than life itself even, will regard the verdict as none too large. We repeat, therefore, that it is a case where men's judg ments will be likely to differ. And suppose the court is of opinion that the damages in this case are greater, much greater even, than they would have awarded, does it therefore follow that the judgment of the court is to be substituted for that of the jury? By no means. It is the wisdom of the law to suppose that the judgment of the jury is more likely to be right than the judgment of the court, for it is to the former and not to the latter that the duty of estimating damages is confided. Unless the damages are so large as to satisfy the court that the verdict was not the result of an honest exercise of judgment, they have no right to set it aside. A careful examination of the case fails to satisfy us that the jury acted dishonestly, or that they made any mistake in their application of the doctrine of exemplary damages. We have no doubt that the highly punitive character of their verdict is owing to the fact that, after Jackson's misconduct was known to the defendants, they still retained him in their service. The jury undoubtedly felt that it was due to the plaintiff, and due to every other traveller upon that road, to have him instantly discharged; and that to retain him in his place, and thus shield and protect him against the protestation of the plaintiff, made to the servant himself at the time of the assault, that he would lose his place, was a practical ratification and approval of the servant's conduct, and would be so understood by him and by every other servant on the road. And when we consider the violent, long-continued, and grossly insulting character of the assault; that it was made upon a person in feeble health, and was accompanied by language so coarse, profane, and brutal; that so far as appears it was wholly unprovoked; we confess we are amazed at the conduct of the defendants in not instantly discharging Jackson. Thus to shield and protect him in his insolence, deeply implicated them in his guilt. It was such indifference to the treatment the plaintiff had received, such indifference to the treatment that other travellers might receive, such indifference to the evil influence which such an example would have upon the servants of this and other lines of public travel, that we are not prepared to say the jury acted unwisely in making their verdict highly punitive. We cannot help feeling that if we should interfere and set it aside, our action would be most unfortunate and detrimental to the public interests. On the contrary, if we allow it to stand, we cannot doubt that its influence will be salutary. It will be an impressive lesson to these defendants, and to the managers of other lines of public travel, of the risk they incur when they retain in their service servants known to be reckless, ill-mannered, and unfit for their places. And it will encourage those who may suffer insult and violence at the hands of such servants, not to retaliate or attempt to become their own avengers, as is too often done, but to trust to the law and to the courts of justice, for the redress of their grievances. It will say to them, be patient and law-abiding, and your redress shall surely come, and in such measure as will not add insult to your previous injury. On the whole, we cannot doubt that it is best for all concerned that this verdict be allowed to stand. The foregoing case is one of marked interest, on account of the very unusual misconduct and abuse of the plaintiff by the defendants' servant. We conjecture that no similar case of misconduct on the part of the conductor of a first class passenger train will be likely to occur here; and for the credit of the country, we trust it will not be regarded as presumptuous that we should predict, that no such case will ever again occur in our country. But as cases must be constantly liable to arise where the same principle as to the rule of damages will be raised, we have great satisfaction in being able to present our readers with what we regard as a very thorough and satisfactory exposition of the law of the question. We should scarcely expect to be able to afford much aid toward solving the question, in addition to what we have already attempted in another place, reVOL. XIX.-3 ferred to in the opinion of Mr. Justice WALTON. It is scarcely possible to conceive that any jury, or court, would ever be able to fix upon any rule of damages in actions for torts, and especially for personal injury of an aggravated and insulting character, without having more or less reference to the circumstances attending the transaction. There is a degree of pain and suffering, to a person of delicacy and sensitive feelings, where an injury is wantonly and brutally inflicted, which it is impossible to separate from the injury itself; which is, indeed, a part of it, and the principal part, and which thus renders it indispensable to measure the compensation awarded by way of damages largely by it, in order to meet, in any just sense, the real merits of the case. We believe that the most plausible argument against giving damages, by way of example, or punishment, has arisen more from the terms used in expressing such claims, than from any innate infirmity in the claim for having damages awarded, in such cases, somewhat beyond the mere pecuniary loss sustained by the plaintiff. It is quite conceivable that a man might, by way of simple assault and insult, suffer so severely as to have it become the proximate cause of death, even where his person or property was not really deteriorated one cent. From this extreme supposed case, there will be found a regular gradation till we come into the class of torts altogether unintentional, such as come from mistake, or accident, or forgetfulness, or negligence. And in all these cases the primary basis of awarding damages unquestionably is the actual wrong and injury perpetrated by the defendant upon the plaintiff. The manner and motive of the defendant are essential media of measuring the wrong and injury to the plaintiff. It is impossible to measure the plaintiff's damage except through such media. The same thing done in one manner, and from one motive, is indifferent to us, so that we almost forget it in an hour; and when done differently, in these respects, becomes absolutely intolerable, so that no amount of money is any compensation whatever, and we never can forget and scarcely forgive it to our dying day. So that juries, in giving damages entirely beyond the actual pecuniary detriment to the plaintiff, will not be required to have any reference to meting out punishment to the defendant, or making the case an example to others. But, no doubt, even these considerations will more or less enter into verdicts upon cases of wanton and unprovoked injuries. The verdict, in such cases, as matter of the simplest justice, should solve all doubtful questions against the party solely in the wrong. There will always be considerations connected with the remedy for personal wrongs by suit in court, which, if divided equally between the parties, must render merely compensatory damages for the personal injury wholly inadequate as a redress. The expense of counsel fees, which it is well settled cannot be included in the verdict, and of personal attention to the suit, and mental anxiety in regard to it, are generally far beyond the mere pecuniary damage to the person. And these, although not proper elements of the verdict, ought not to be wholly overlooked. All that is really meant, then, by exemplary or punitive damages is, that such ample and adequate redress shall be awarded the plaintiff as to admonish all others, tempted to commit similar outrages upon the rights of others, that it will prove an expensive experiment, and probably be attended with such incidental punishment as to deter all prudent men from its undertaking. The effect of verdicts in such cases should be to deter offenders from repeating their offences, and to encourage the injured party to seek redress in that form. There is no fair question that damages cannot properly be awarded one man, solely upon the ground of punishing another, or of making a public example of his case. But every man should obtain such redress in courts as will not tend to discourage resort to such remedy. Whenever the verdicts of juries in cases of this character are so far reduced as to become an insult instead of a cure for the wrong, the people will take the matter into their own hands, and the injured party and his friends will seek redress in the court of Judge Lynch. The administration of the law in the regularly constituted tribunals of the country should be so conducted as "to become a terror to the evil-doer, and a praise to them that do well." And this cannot be accomplished, in cases of this character, by merely nominal verdiets, or those that give only the pecuniary loss sustained by the plaintiff, which is nothing more than dividing the expenses of the suit between the parties. The following notes upon some recent decisions upon the point may be of some interest to the profession, although they do not, we confess, throw much light upon the points in dispute. In Louisville and Portland Railroad Co. v. Smith, 2 Duvall 556, a horse-car was upset and thrown down an embankment, whereby the plaintiff, a passenger, was severely cut and bruised, and permanently disabled. There was evidence that fast driving was the primary cause of the accident. Held, that it was error to instruct the jury that they might, in their discretion, award exemplary damages. It seems to us, if there was evident misconduct on the part of the driver, it was the act of the company, and the jury should have given exemplary damages, such as would be likely to make other companies watchful in employing sober and prudent drivers, and such as would fully compensate the plaintiff for all damages, direct and incidental. railroad company to recover damages, on account of the company's agent having conveyed the plaintiff to a point beyond the place of his destination, and then compelling him to leave the cars, the jury are authorized to allow not only just compensation for the injury, but to inflict proper punishment on the defendants for their disregard of public duty; and in such case they may take into consideration the pecuniary circumstances of the defendant company: New Orleans, &c., Railroad v. Hurst, 36 Miss. 660. The decision in this case is certainly expressed in most unfortunate language. The plaintiff was certainly entitled to be fully indemnified against all loss, direct and incidental, and it was proper for the jury to award such damages as might operate to correct the indifference of railway employees in such cases, and to make the company more watchful in selecting their agents. But "punishment" is certainly no function of a jury in civil cases, and what the pecuniary con dition of the defendant has to do with the verdict in such a case is more than we can conjecture. The company is bound to pay the sum awarded, and if rich it is fortunate for both parties, and if very poor, it might prove unfortunate for both. In Heirn v. McCaughn, 32 Miss. 1, an action against a common carrier, a violation of general duty to the public was regarded as sufficient to determine the character of the action as one founded in tort and not in contract, and to authorize the jury to award exemplary damages. In Southern Railroad Co. v. Kendrick, 40 Miss. 374, it was held that a neglect of duty, clearly not attended with any circumstances of insult, or aggravation of feelings, or injury to the person or his property, or of bodily or mental suffering, would not justify vindictive damages; yet if there be any evidence tending to show such circumstances, its weight and force rest with the jury, whose verdict in awarding damages for such wrong will not be disturbed. And the court held as error a charge that "any failure to discharge all the duties imposed by the nature of In this case a steamboat company had the office of common carrier amounts to advertised to stop at a certain place, on gross and wilful misconduct, for which certain days, for freight and passengers. punitive damages may be given." There The plaintiff, acting upon this notice, could be no question of the entire sound- went with his wife to the appointed place ness of this decision, inasmuch as the de- at the time designated, and there waited fault might have, and probably did occur for the boat until daybreak next mornwithout any intentional wrong. ing, but the boat did not come, whereby In an action by a passenger against a the trip was lost to the plaintiff's wife, |