"whether called 'gross' or 'ordinary' negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted. To do this there must have been some wilful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences. Nothing of this kind can be imputed to the persons in charge of the train; and the court, therefore, misdirected the jury." 91 U. S. 495.

In Railway Co. v. Harris, the railroad company, as the record showed, by an armed force of several hundred men, acting as its agents and employes, and organized and commanded by its vicepresident and assistant general manager, attacked with deadly weapons the agents and employes of another company in possession of a railroad, and forcibly drove them out, and in so doing fired upon and injured one of them, who thereupon brought an action against the corporation, and recovered a verdict and judg ment under an instruction that the jury "were not limited to compensatory damages, but could give punitive and exemplary damages, if it was found that the defendant acted with bad intent, and in pursuance of an unlawful purpose to forcibly take possession of the railway occupied by the other company, and in so doing shot the plaintiff." This court, speaking by Mr. Justice Harlan, quoted and approved the rules laid down in Quigley's case, and affirmed the judgment, not because any evil intent on the part of the agents of the defendant corporation could of itself make the corporation responsible for exemplary or punitive damages, but upon the single ground that the evidence clearly showed that the corporation, by its governing officers, participated in and directed all that was planned and done. 122 U. S. 610, 7 Sup. Ct. Rep. 1286.

The president and general manager, or, in his absence, the vicepresident in his place, actually wielding the whole executive power of the corporation, may as well be treated as so far representing the corporation and identified with it that any wanton, malicious, or oppressive intent of his, in doing wrongful acts in behalf of the corporation to the injury of others, may be treated as the intent of the corporation itself; but the conductor of a train, or other subordinate agent or servant of a railroad corporation, occupies a very different position, and is no more identified with

his principal, so far as to affect the latter with his own unlawful and criminal intent, than any agent or servant standing in a corresponding relation to natural persons carrying on a manufactory, a mine, or a house of trade or commerce.

The law applicable to this case has been found no where better stated than by Mr. Justice Brayton, afterwards chief justice of Rhode Island, in the earliest reported case of the kind, in which a passenger sued a railroad corporation for his wrongful expulsion from a train by the conductor, and recovered a verdict, but excepted to an instruction to the jury that "punitive or vindictive damages, or smart money, were not to be allowed as against the principal, unless the principal participated in the wrongful act of the agent, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed." This instruction was held to be right for the following reasons: "In cases where punitive or exemplary damages have been assessed, it has been done, upon evidence of such willfulness, recklessness or wickedness on the part of the party at fault, as amounted to criminality, which, for the good of society and warning to the individual, ought to be punished. If in such cases, or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages as will operate as punishment, and teach the lesson of caution to prevent a repetition of criminality, yet we do not see how such damages can be allowed, where the principal is prosecuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of his agent's act 'No man should be punished for that of which he is not guilty.' Where the proof does not implicate the principal, and, however wicked the servant may have been, the principal neither expressly nor impliedly authorizes or ratifies the act, and the criminality of it is as much against him as against any other member of society, we think it is quite enough that he shall be liable in compensatory damages for the injury sustained in consequence of the wrongful act of a person acting as his servant." Hagan v. Railroad Co., 3 R. I. 88, 91.

The like view was expressed by the court of appeals of New York in an action brought against a railroad corporation by a VOL. VII-53

passenger for injuries suffered by the neglect of a switchman, who was intoxicated at the time of the accident. It was held that evidence that the switchman was a man of intemperate habits, which was known to the agent of the company having the power to employ and discharge him and other subordinates, was competent to support a claim for exemplary damages, but that a direction to the jury in general terms that in awarding damages they might add to full compensation for the injury "such sum for exemplary damages as the case calls for, depending in a great measure, of course, upon the conduct of the defendant," entitled the defendant to a new trial; and Chief Justice Church, delivering the unanimous judgment of the court, stated the rule as follows: "For injuries by the negligence of a servant while engaged in the business of the master, within the scope of his employment, the latter is liable for compensatory damages; but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless he is also chargeable with gross miconduct. Such misconduct may be established by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant, knowing that he was incompetent, or, from bad habits, unfit for the position he occupied. Something more than ordinary negligence is requisite; it must be reckless and of a criminal nature, and clearly established. Corporations may incur this liability as well as private persons. If a railroad company, for instance, knowingly and wantonly employs a drunken engineer or switchman, or retains one after knowledge of his habits is clearly brought home to the company or to a superintending agent authorized to employ and discharge him, and injury occurs by reason of such habits, the company may and ought to be amenable to the severest rule of damages; but I am not aware of any principle which permits a jury to award exemplary damages in a case which does not come up to this standard, or to graduate the amount of such damages by their views of the propriety of the conduct of the defendant, unless such conduct is of the character before specified." Cleghorn v. Railroad Co., 56 N. Y. 44, 47, 48.

Similar decisions, denying upon like grounds the liability of railroad companies and other corporations sought to be charged with punitive damages for the wanton or oppressive acts of their

agents or servants, not participated in or ratified by the corporation, have been made by the courts of New Jersey, Pennsylvania, Delaware, Michigan, Wisconsin, California, Louisiana, Alabama, Texas and West Virginia.

It must be admitted that there is a wide divergence in the decisions of the state courts upon this question, and that corporations have been held liable for such damages under similar circumstances in New Hampshire, in Maine and in many of the western and southern states. But of the three leading cases on that side of the question, Hopkins v. Railroad Co. 36 N. H. 9, can hardly be reconciled with the later decisions in Fay v. Parker, 53 N. II. 342, and Bixby v. Dunlap, 56 N. H. 456; and in Goddard v. Railway Co., 57 Maine, 202, 228, and Railway Co. v. Dunn, 19 Ohio St. 162, 590, there were strong dissenting opinions. In many, if not most, of the other cases either corporations were put upon different grounds in this respect from other principals, or else the distinction between imputing to the corporation such wrongful act and intent as would render it liable to make compensation to the person injured, and imputing to the corporation the intent necessary to be established in order to subject it to exemplary damages by way of punishment, was overlooked or disregarded. Most of the cases on both sides of the question, not specifically cited above are collected in 1 Sedg. Dam. (8th Ed.) § 380.

In the case at bar the plaintiff does not appear to have contended at the trial, or to have introduced any evidence tending to show that the conductor was known to the defendant to be an unsuitable person in any respect, or that the defendant in any way participated in, approved or ratified his treatment of the plaintiff; nor did the instructions given to the jury require them to be satisfied of any such fact before awarding punitive damages; but the only fact which they were required to find, in order to support a claim for punitive damages against the corporation was that the conductor's illegal conduct was wanton and oppressive. For this error, as we cannot know how much of the verdict was intended by the jury as a compensation for the plaintiff's injury, and how much by way of punishing the corporation for an intent in which it had no part, the judgment must be reversed and the case remanded to the circuit court, with directions to set aside. the verdict and to order a new trial.

Mr. Justice Field, Mr. Justice Harlan and Mr. Justice Lamar took no part in this decision.*

1. Carriers-liability of railroad company for wrongful arrest of passenger made or caused by its agents -After plaintiff had purchased a ticket from a carrier's ticket agent the latter declared that the coin given in payment was counterfeit, and demanded that she take it back and return the change he had given her. On her refusal, he publicly denounced her as a counterfeiter and a common prostitute, and deta ned her for awhile in the station, awaiting arrest by an officer, which was not made. Held, that the agent was acting within the scope of his employment, and the carrier was liable in an action by plaintiff for false imprisonment, and for the slanderous words spoken. Palmeri v. Manhattan Ry Co., 133 N. Y. 261; 30 N. E. Rep. 1001. See generally Gillingham v. Ohio River R. Co., 5 Am. R. R. & Corp. Rep. 320, and note; Norfolk & W. R. Co. v. Galliher, (Va.) 16 S. E. Rep. 935; Southern Pac. R. Co. v. Hamilton, 54 Fed. Rep. 468.

2. Liability for willful injury to passenger by servant or fellow passenger.-A colored passenger upon a railway train is entitled to the same protection against drunken and violent men seeking to molest, outrage, and humiliate him as a white passenger. This protection must be afforded by the conductor to the extent of all the power with which he is clothed by the company or by the law, and his failure to afford it, when he has acknowledged that there is occasion for his interference, will subject the company to liability in damages. Richmond & D. R. Co. v. Jefferson, 89 Ga. 554; 16 S. E. Rep. 69. See also Harrold v. Winona & St. P. R. Co., 47 Minn. 17; 49 N. W. Rep. 389.

Where defendant's baggage master, for his own amusement, by threats and menaces, caused a passenger who, through ignorance or carelessness, entered the express car, to jump from the car while in motion, defendant is not liable for the injury resulting therefrom, as such acts of the baggage master were not within the scope of his employment. Louisville, N. O. & T. R. Co. v. Douglass, (Miss.), 11 So. Rep. 933.

SUTLIFF V. LAKE COUNTY COMMISSIONERS.

(Supreme Court of the United States, January 9, 1893.)

1. COUNTY BONDS. ISSUE IN EXCESS OF LIMIT. DUTY OF PURCHASER TO EXAMINE RECORDS. The Constitution of Colorado, Art. 11, § 6, forbids a county, under any circumstances, to issue bonds beyond a certain amount, and limits the right to issue bonds, without a previous vote of the qualified electors of the county, to half such amount. Gen. Laws 1877, p. 218, § 30, provides that the board of county commissioners of each county shall make out semiannual statements showing the debt owed by the county, payments thereon, and rate of interest, and shall cause such statements to be entered on their

*Reported in 147 U. S. 101; 13 Sup. Ct. Rep. 261.