Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/381

PART IV.] LIABILITY FOR TORTS OP AGENTS. [§ 378. effect that to justify the allowance of exemplary damages against a corporation, the superior corporate agents must either have been negligent in their choice of employes, or must have rati- fied the act in some way ; e. g., by retaining the servant in the employ of the company. As said by the late Chief Judge Church, giving the opinion of the New York Court of Appeals in Cleghorn v. New York Central Railroad Co. : l " 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, how- ever gross or culpable, he is not liable to be punished in puni- tive damages, unless he is also chargeable with gross miscon- duct. 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 occu- pied. Something more than ordinary negligence is required ; it must be reckless and of a criminal nature, and clearly estab- lished. Corporations may incur this liability as well as private persons. 2 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 em- ploy 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 view of the propriety of the conduct of the defendant, unless such conduct is of the character before specified." 3 lina Central R. R. Co., 94 N. C. 318. See Baltimore, etc., Turnpike Co. v. Boone, 45 Md. 344; Belknap v. Bos- ton and M. R. R. Co., 49 N. H. 358; Louisville, etc., R'y Co. v. Shanks, 94 Ind. 598; South & North Ala. R. R. Co. v. McLendon, 63 Ala. 2(36. 1 56 N. Y. 44, 47. 2 Citing Caldwell v. N. J. Steam- boat Co., 47 N. Y. 282. 3 Accord, Goddard v. Grand Trunk R'y, 57 Me. 202; Lake Shore, etc., Ry. Co. v. Prentice, 147 U.S. 101; Perkins o. Missouri, etc., R. R. Co., 55 Mo. 201; Hays v. Houston, etc., R. R. Co., 46 Tex. 272; New Orleans, etc., R. R. Co. v. Burke, 53 Miss. 201; Hinckley v. Chicago, M. & St. P. R'y Co., 38 Wis. 194. Compare Townseud v. N. Y. C. and H. R. R. 301