Mendelsohn v. Anaheim Lighter Co.

delivered the opinion of the Court, Temple, J., Wallace, .J., and Bhodes, C. J., concurring:

The verdict in this case was not void for uncertainty. The only office of the verdict is to express, in clear and intelligible language, the result at which the jury has arrived; and when the jury in this case said in their verdict that they found the plaintiffs to be “entitled to the sum of $2,500,” it was equivalent to saying that they found the issues in favor of the plaintiffs, and assessed the damages at that sum. The verdict admits of no other rational interpretation. Nor did the Court err in ' denying the defendant’s motion for a new trial, so far as it was founded on the ground of surprise resulting from the amendment of the complaint. The attorneys in a cause must be held to have had notice of the proceedings therein, which occurred in their presence, in open Court, during the progress of the trial. Any other rule would lead to perjury and fraud. Of course nothing of the kind is imputed to the respectable attorneys in this cause; but the rule for which they contend would be most pernicious in practice and should not be tolerated. On the conclusion of the testimony, the Court, on the request of the plaintiffs, charged the jury, in sub*661stance, that if the damage to the lumber was wantonly and maliciously caused by the defendant, the jury might give punitive damages; and refused to give an instruction ashed by the defendant, embodying the converse of this proposition; and this ruling is assigned as error on two grounds, to wit: first, that there was no evidence tending to show any wanton or malicious conduct on the part of the defendant, and that the defendant is not liable for punitive damages for the wanton and malicious acts of his servants and agents, done without his consent or privity; second, that the rule of damages is not correctly stated in the instructions given. If the rule be, as claimed by defendant, that punitive damages are not allowable in actions founded solely on contract, this case does not come within the rule, the action being founded partly on the contract made with the defendant, but chiefly on an alleged breach of its duty as a common carrier for hire; and no one, I apprehend, will maintain that a common carrier is ip no case liable to punitive damages for a wanton, malicious and tortuous breach of his duty. If the proprietor of a stage coach should wantonly and maliciously overturn it, with the intent to hill or inflict bodily injury upon a passenger, it is too plain for argument that in an action by the passenger the jury might give punitive damages. In like manner, if a family picture, having no appreciable market value, be delivered to a common carrier to be transported for hire, and if he wantonly destroy it, it is plain the damages would not be confined to the mere money value of the picture. In such cases the carrier would not only be guilty of a violation of‘ the contract, but of a. gross, wilful and tortuous breach of a duty enjoined upon him by law, for which he would be liable to punitive damages. If, therefore, there was any evidence in the cause to authorize this instruction, it was properly given by the Court. But whilst there was evidence tending to show that the damages to the lumber was caused by the malicious and wanton acts of the agents and servants of the defendant, I discover nothing in the record tending to prove that the defendant authorized or *662consented to tbe malicious conduct of its agents and servants, or approved it afterwards; and it is well settled that though the principal is liable for the actual damage caused by the act of his agent done in the usual course of his employment, he is not responsible for wanton and malicious damage done by the agent without the consent, approval or subsequent ratification of the principal. In the case of Turner v. The N. B. and M. R. R. Co. (34 Cal. 594), we had occasion carefully to consider this question, and announced the rule to be as above stated, and have re-affirmed it in the case of Wade v. Thayer (decided at the present term). I am, therefore, of opinion that the Court erred in giving the fifth instruction requested by the plaintiff, there having been no evidence to support it. As the judgment must be reversed for this cause, I deem it unnecessary to notice the other errors assigned.

Judgment reversed and cause remanded for a new trial.