The Supreme Court of the United States, whose position is binding on this court, belongs to this class. In the early case of The Amiable Nancy, 3 Wheat. 546, 4 L. Ed. 456, it held that punitive damages could not be recovered against the owners of an American privateer for the illegal and wanton seizure and plunder of a neutral vessel and maltreating her officers and crew by a subordinate officer and certain of the crew of such privateer. It is to be noted that it did not appear that the commander of the privateer was a party to the wrongdoing, but seemingly it would have made no difference in the decision if he had been. In the later case of Lake Shore & Michigan So. Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, it held that recovery of such damages could not be had against a railroad corporation for an illegal, wanton and oppressive arrest of a passenger by the conductor of one of its railway trains. The citation of this case in the opinion in that of Washington Gaslight Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543, may lead to the misapprehension that the doctrine thereof was applied therein, which was a suit against the Gaslight Company to recover damages because of the wrongdoing of its general manager. But it was held therein that the company was not liable at all and that because the general manager's action was not within the scope of his employment.

On the other hand, in the case of D. & R. G. Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 1146, a railroad corporation was held liable in punitive damages for the acts of an armed force of several hundred men acting as its agents and employés and organized and commanded by its vice president and assistant general manager, which consisted in attacking with deadly weapons the agents and employés of another company in possession of a railroad and forcibly driving them out. In distinguishing the decision in this case from that in the Prentice Case Mr. Justice Gray said:

"The president and general manager, or, in his absence, the vice president in his place, actually wielding the whole executive power of the corporation, may 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 company occupies a very different position, and is no more identified with his principal, so 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."

In the case of Post Pub. Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201, this court held that a newspaper corporation was liable to punitive damages for the malicious conduct of its general manager. Judge Taft said:

"He so far represented the defendant corporation as its general manager that his malice was in law the malice of the defendant."

And in the case of Pac. Packing & Navigation Co. v. Fielding, 136 Fed. 577, 69 C. C. A. 325, the Ninth Circuit Court of Appeals held that a corporation owner of a vessel could not be subjected to punitive damages because of the unlawful, oppressive, and malicious action of

the master in imprisoning a member of the crew, while at sea, which action was not authorized nor ratified by the corporation. The plaintiff pressed upon the court the view that the case came within the Harris Case and its approval in the Prentice Case. Judge Ross said:

"It is contended that this principle is applicable to the master of a ship at sea, who is for the time being in the sole and absolute command of the ship and of everybody in it; but we do not feel justified in so extending it, especially in view of the decision of the Supreme Court in the case of The Amiable Nancy, 3 Wheat. 546, 4 L. Ed. 456, the doctrine of which case was expressly approved in Lake Shore, etc., Railway Company v. Prentice."

If there are any other pertinent decisions by the appellate federal courts, they have eluded search. An attempt should be made at generalizing these. Certainly the nonliability of the corporation is not limited to cases where the wrongful act was committed by a representative of it who is a mere underling. No liability may exist where he is a superior servant and that of considerable responsibility, as in the case of a conductor of a passenger train or the master of a vessel. On the other hand, liability exists where the act was committed by the president or board of directors. But it cannot be said that no liability exists as to all representatives short of the president and board of directors, for there is liability if the act was committed by the general manager, as in the case of a general manager of a newspaper corporation. Where, then, is the line to be drawn between those superior servants as to whom no liability exists and those as to whom there is liability? Possibly these decisions are not sufficient to fix the line exactly. But they do suggest that it is to be drawn between those who are over a part only of its affairs, as in the case of a conductor of a passenger train or the master of a vessel, and those who are over all its affairs, as in the case of a general manager of a newspaper corporation. And in the extract from Judge Gray's opinion in the Prentice Case, quoted above, it is to be noted that he places on the one side the president and general manager, or in his absence, the vice president in his place, actually wielding the whole of the executive power of the corporation, which suggests that the distinguishing characteristic of that side is that the representative wields the whole executive power of the corporation, and on the other side the conductor of a train or other subordinate agent or servant of a railroad corporation, which suggests that the distinguishing characteristic of this side is that the representative is a subordinate. But, at any rate, wherever the line is to be drawn, if it is to be held that defendant is liable for punitive damages because Hume was its division superintendent, this position must be reconciled with the position that a railroad corporation is not liable for such an act on the part of the conductor of one of its trains or ship corporation is not liable therefor on the part of the master of one of its vessels.

[3] There are three conceptions as to what truth is. Agreement of thought and reality, eventual verification and consistency of thought with itself. Thought should be consistent with itself if nothing else. And it would seem that these positions cannot be reconciled on the idea that Hume was over all defendant's affairs in a particular locality,

for this is true also of the conductor of a railroad train, in the one case, and possibly more so, of a vessel in the other. The necessities of this case, however, do not require that we determine whether, if Hume's conduct was of such quality as to render him liable for punitive damages, defendant was liable therefor also. We simply content ourselves, therefore, with developing the question. What relieves us of determining this question is that we feel constrained to hold that Hume's conduct was not in and of itself of such quality as to call for punishment.

[2] The rule as to what is essential to justify awarding punitive damages is well settled. To have it before us in estimating Hume's conduct we quote from 8 R. C. L. On page 586 it is said:

"Such damages may be recovered in cases and only in such cases where the wrongful act complained of is characterized by some such circumstances of aggravation as willfulness, wantonness, malice, oppression, brutality, insult, recklessness, gross negligence, or gross fraud on the part of the defendant."

On pages 588-590 a separate consideration is given to gross negligence as a basis for the recovery of such damages. And on page 591 the matter is put negatively thus:

"Exemplary damages are not authorized where a tort is committed unintentionally or through mistake or ignorance."

These expressions, save as to gross negligence, find justification in the decisions of the Supreme Court. In Milwaukee, etc., R. R. Co. v. Arms, 91 U. S. 495, 23 L. Ed. 374, it was held that gross negligence was not sufficient to warrant recovery of punitive damages. Mr. Justice Davis, in referring to what was essential, said:

"There must have been some willful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences."

How far, then, did the evidence tend to establish such misconduct or want of care on the part of Hume? To justify the submission of the question as to whether he had been guilty thereof, there must have been substantial evidence to that effect. Judge Severens in Minahan v. Grand Trunk Western Ry. Co., 138 Fed. 37, 70 C. C. A. 463, defined what is meant by substantial evidence by saying:

"Something of substance and relevant consequence, and not vague, uncertain, or irrelevant matter not carrying the quality of proof or having fitness to induce conviction."

It is clear that Hume did not intentionally trespass on plaintiff's property. It was through a pure mistake that he did so. August 23, 1911, he saw plaintiff's general manager, Polk, and assured him that it was through a mistake that he cut the line at the wrong place. Polk did not question this, and there is every indication that he accepted the statement as true. He admitted that he did not think that Hume knew that plaintiff claimed the telephone instruments and stated that he brought to him the bill that plaintiff rendered the Tri-State Company for the work which it did for it, to try and prove that the latter owned them. Plaintiff introduced Hume as a witness on its behalf, as well as Polk, and these were the only witnesses who testified in

the case. Hume testified that he thought that he was dealing with what he believed to be defendant's property.

The only just criticism that can be made of his conduct is that he did not exercise due care to ascertain where the junction of the two portions of the connecting line was. It is claimed that he should have consulted plaintiff, which it was convenient for him to do, before acting. His explanation of why he did not do so was because he thought that he knew where the junction was. He was led to think that it was where he made the severance by the statement of plaintiff's representative, which was calculated to make him think that the point of junction was in Millington, rather than at its north end, and by the character of the pole. So far as he was guilty of a want of care, it does not measure up to the requirement. It was not such as to indicate "a conscious indifference to consequences." Some point is made of the fact that Hume refused to deliver up the telephone instruments to plaintiff, except on condition that plaintiff dismiss the prosecution against defendant's two laborers who actually did the work, and that Polk made affidavit that they belonged to plaintiff. It is not certain that Polk on that occasion did more than state that the instruments belonged to plaintiff or Hume more than state the terms on which he would deliver them up. Whilst it was Hume's duty to deliver them up without any condition, his position was not unnatural. He claimed that plaintiff's bill rendered to the Tri-State Company showed that they belonged to it, and he felt that if there was to be any criminal prosecution for what had been done that it should be directed against him, rather than the innocent laborers, who acted under his directions, and so stated to Polk. It is true, also, that Hume made no effort to restore the line. But there is no indication that a restoration thereof would have been of any value to plaintiff, the line having been erected as a connecting line between the two systems, or that plaintiff desired it restored. It is not unlikely that it did not.

Besides the plaintiff's declaration is liable to the construction that it sought punitive damages solely on the ground of willful misconduct. Three times therein it alleged that the tort was committed for the purpose of affecting plaintiff's business. The allegations are that it was committed "for the purpose of injuring the plaintiff in its business," "for the deliberate purpose of crippling, hindering and embarrassing this plaintiff in the carrying on of its business as a competitor of said defendant," and "for the deliberate purpose of stifling competition and crippling the business of this plaintiff." But there is an entire absence of evidence that Hume committed the tort for any such purpose and it had no real relation to the accomplishment thereof. Plaintiff's interchange of business with the Tri-State Company had theretofore been put an end to by its repudiation of its contract with plaintiff. The judgment of the lower court is affirmed.

(231 Fed. 845)

MALLEN et al. v. RUTH OIL CO. et al.

(Circuit Court of Appeals, Eighth Circuit. March 30, 1916.)

No. 4566.

GUARDIAN AND WARD 44-LEASE-DURATION.

Under Const. Okl. art. 7, §§ 11-13, and Rev. Laws Okl. 1910, §§ 3330, 3335, 6532, 6554, 6569, which define the probate jurisdiction of the county courts and authorize them to permit the sale and disposal by guardians of the lands owned by minors, without restrictions as to duration of estate, and section 6547, which empowers guardians to lease and grant oil and gas under the same procedure in the county court as now authorized, a guardian can, with the consent of the court, make a lease of the oil and gas under the lands of the minor for so long as those minerals may be found in paying quantities, which will be valid after the ward attains his majority.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 192201; Dec. Dig. ~44.]

In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Action by William D. Mallen, Jr., a minor, by his next friend, and others, against the Ruth Oil Company and others, to recover possession of a tract of land. Judgment for defendants on demurrer to the petition (230 Fed. 497), and plaintiffs bring error. Affirmed.

Samuel V. O'Hare, of Muskogee, Okl., for plaintiffs in error.

A. J. Biddison, of Tulsa, Okl., and George S. Ramsey, of Muskogee, Okl. (Biddison & Campbell, of Tulsa, Okl., on the brief), for defend

ants in error.

Before ADAMS, Circuit Judge, and REED and ELLIOTT, District Judges.

ADAMS, Circuit Judge. The plaintiffs in error, who are the heirs at law of one Jesse D. Mallen, deceased, brought this action in the District Court of the United States for the Eastern District of Oklahoma to recover possession of a certain described tract of land located in the county of Nowata, in the state of Oklahoma. They alleged in their petition that on April 7, 1912, William Mallen, who before then. had been duly appointed by the county court of Nowata county legal guardian of Jesse D. Mallen, who was then a minor, executed an oil and gas lease to the defendant, Ruth Oil Company, which was duly approved by the county court of Nowata county, whereby he demised, for a consideration specified, to the lessee all the oil and gas in and under the land, "for the term of minority of said minor, and so long thereafter as oil or gas is found on said premises in paying quantities" that Jesse D. Mallen, had he lived, would have reached the age of 21 years on September 1, 1913; that the term of the lease executed by his guardian therefore expired, by limitation, on that date; that the county court of Nowata county had no jurisdiction or power to authorize the guardian to execute a lease of his ward's land for oil and gas mining purposes for a term extending beyond the minority of the

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