#### The United Power Company *v.*Matheny.

*Action to recover damages for ejectment of passenger from street car*— Evidence *offered by company to show misconduct of passenger*— Error *for court to instruct jury to disregard such evidence, when*— Question *of malice or insult in ejectment*— As *bearing on nature of damages*— Counsel *fees to be allowed as part of compensatory damages, when.*

1. Where, in an action to recover damages for unlawfully and forcibly ejecting the plaintiff from a street car, evidence was offered by the defendant tending to show that passengers had left the car on account of the conduct of the plaintiff and his companions, and in doing so complained to the conductor, or within his hearing, in regard to such conduct, such evidence was com-: petent as part of the *res gestae*and as tending to explain the motive of the conductor, and it was error for the court to instruct the jury to disregard the same, unless they should find that what was said by the passengers to the conductor or in his hearing, was in the hearing of the plaintiff or so that he could have heard it.

2. In such case, it was error for the court to' charge the jury that if they found that the ejectment of the plaintiff was not justified, but was without malice or insult, they could award compensasatory damages only, and as part thereof they might allow plaintiff a reasonable sum for the services of counsel in his behalf.

(No. 11129

Decided November 30, 1909.)

Error to the Circuit Court of Columbiana county.

The defendant in error sued the plaintiff in error to recover damages for an alleged unlawful, wrongful and forcible expulsion from a street car belonging to and operated by the plaintiff in error. The plaintiff in error in its answer denied all the allegations contained in the petition, except that it was a corporation and engaged as a common *205carrier of passengers, and that the plaintiff was ejected from a car belonging to said company; and it alleged as follows: “The defendant says that the plaintiff was so ejected from said car for being disorderly and for using profane language in said car; that plaintiff was requested and warned by the employes of defendant in charge of said car, to desist from said disorderly conduct and to refrain from using said profane language; but plaintiff refused' and failed "so to desist and refrain, and the defendant's employes were thereupon obliged to and did eject the plaintiff from said car, but without violence and not in the manner set forth in the petition.” In reply the plaintiff below denied these allegations contained in the answer. On the trial of the issues, the plaintiff gave evidence tending to sustain the claims made in his petition and the defendant gave evidence tending "to support the foregoing allegations contained in its answer. The testimony tended to show that the plaintiff and his two companions were noisy and hilarious, perhaps to the extent of using coarse, profane and indecent language, to the annoyance of some of thy other passengers; and that the conductor' had at least once admonished them; that there were several white women and three colored women in the car, the 'latter sitting just in front of the plaintiff and his companions ; that something occurred between the colored women and the plaintiff and his company, which was not understood by the other passengers; that the colored women got up and went to the rear exit of the car and in doing so passed the plaintiff and his companions, and some words *206passed between them, which were not understood by the witnesses,, owing to the noise; and that as the women came out and got off the car, they said to the conductor in the hearing of witnesses, but not in the hearing of the plaintiff and his companions, “It is a pity a person can’t ride on these cars without being insulted by somebody that is drunk.” “If we can’t ride without being insulted we will get off,” which they did do; that thereafter the conductor went to the men and said, “I have told you twice now. You will have to cut it out or get off,” to which one of them replied, “God damn you, get back in the back end where you belong and tend to your own business;” and that thereupon the conductor stopped the car, tendered the men their fare, which they refused, arid with the assistance of the motorman ejected the men with no more force than was necessary; and that in .the case of the plaintiff no force was used except to take him by the arm and lead him out.

The court charged the jury, in part, as follows: “The court admitted in evidence the statement of a witness as to what was said by some colored women in leaving the car. At that time the court said in your presence that that' evidence would not be proper or competent for your consideration unless it was said in the presence and hearing of the plaintiff. The plaintiff and- one or two other witnesses deny that they heard any such statement as was made by these colored women. The court instructs you that before you should consider what witnesses say they may have said in leaving the car you should determine whether *207or not it was said by them loud enough to be heard by the plaintiff in this case, for if it was not said in his hearing, then that evidence would be entirely incompetent in this case; and if you should find from all the evidence that the plaintiff did not, or could not have heard this language or this statement by these colored women who left the car, then I instruct you to entirely disregard such testimony. If, however, you should find that it was spoken in a way that the plaintiff could have heard it, or did hear it, then the court instructs you that you would have a right to consider it along with the other evidence in the case in determining the issue which has been submitted to you. * * * You should also, if you should determine that this ejectment was not justified, and should further determine that the employes who ejected him acted with actual malice and ill-will, and with a deliberate intention of insulting the passenger in ejecting him, I say, if you should so find, then you would be entitled, not only to allow him compensatory damages, but should also allow him an additional amount by way of punitive damages. That is, as a punishment for this defendant for having in its service employes who would thus disregard the rights of others. This is a matter, however, which you are not called upon to determine unless you should, as I say, find that this ejectment was done not only without justification, but in a malicious and insulting manner. Otherwise you should only allow such an amount as would fairly compensate him in the respects to which I have called your attention. And as a matter of compensation you would have a right to *208allow him a reasonable amount for the services of his counsel in bringing and maintaining this action against the company.”

There was a verdict and judgment in favor of the plaintiff in the court of common pleas, and this judgment was affirmed by the circuit court.

*Messrs. Brookes & Thompson,*for plaintiff in error, cited and commented .upon the following ■authorities:

2 Fetter on Carriers, Section 542; Watson on Damages for Personal Injuries, 726, 738, 883; *Railway Co.*v. *Hall,*13 S. W. Rep., 138; *Railroad Co.*v. *McGinnis, 46*Kans., 109; *Railway Co.*v. *Taylor,*104 Pa. St., 306; *Railroad Co.*v. *Scurr,*59 Miss., 456; *Chicago*v. *Martin,*49 Ill., 241; *Heil*v. *Glanding,*42 Pa. St., 493; *Railroad Co.*v. *Arms,*91 U. S., 489; *Railroad Co.*v. *Slusser,*19 Ohio St., 157; *Railway Co.*v. *Dunn,*19 Ohio St., 170; *Lyles*v. *Perrin,*119 Cal., 264, 51 Pac. Rep., 332; *Tramway Co.*v. *Cloud,*40 Pac. Rep., 779; *Inman*v. *Ball,*65 Ia., 543; 2 Sutherland on Damages, Section 392; *Schneider*v. *Hosier,*21 Ohio St., 98; *Morely*v. *Dunbar,*24 Wis., 183; *Roberts*v. *Mason,*10 Ohio St., 277; *Finney*v. *Smith,*31 Ohio St., 529; *Stevenson*v. *Morris,*37 Ohio St., 10; *Iron Co.*v. *Harper,*41 Ohio St., 100; *Railroad Co.*v. *Bartram,*11 Ohio St., 469.

*Mr. Hollis E. Grosshans*and *Mr. C. S. Speaker,*for defendant in error, cited and commented upon the following authorities:

*Hoffman*v. *Gordon,*15 Ohio St., 214; *Railroad Co.*v. *Young,*21 Ohio St., 518; *Railway Co.*v. *209
      *De Pascale,*70 Ohio St., 179; *Haskins*v. *Railway Co.,*7 Dec. R., 679; Kinkead’s Code ' Pleading, 204, 205.

Davis, J.

The testimony clearly shows that the plaintiff below, defendant in error here, was one of a party of men who were creating some disturbance in a street car. Whether or not it would be regarded in that locality as “disorderly conduct” is not for us to say, for there seems to be some dispute about it; but it is certain that the conduct of the party was such as was likely to mar the comfort of peaceable and well behaved passengers in a public conveyance, especially of ladies. There were some white women and also three colored women in the car, the latter sitting in front of and near to the plaintiff and his friends. The testimony tends to prove that something passed between the plaintiff and his party and the colored women which caused the latter to get up and leave the car by the rear door, in a manner indicating displeasure ; and that as they left the car they said to the conductor: “If we can’t ride without being insulted we will get off” and “It is a pity a person can’t ride on these cars without being insulted by somebody that is drunk.” There is testimony tending to prove that at the time this occurred, the conductor had already warned the men once, and perhaps twice. Under these circumstances, the court instructed the jury, as to what was said by the colored women when leaving the car. that if'these words were not spoken in the hearing of the plaintiff, or loud enough to *210be heard by him, they should entirely disregard what was said.

We do not understand that this evidence was offered for the purpose of proving that the plaintiff and his companions were intoxicated and had insulted the women. In other words it was not offered as an admission by reason of he failure of the plaintiff to deny the statement. If that were the sole purpose of the introduction of the evidence and the sole effect of it,- there would be nothing objectionable in the instruction to the jury. We are all of the opinion, however, that this evidence was competent as part of the *res gestee*whether the words were, or could have been, heard by the plaintiff or not; but it was also in issue in the case, whether the plaintiff had been unlawfully ejected from the car, and it was also a question whether the defendant’s servants acted with malice or insult towards the plaintiff. To maintain the issues on its part the defendant was not only entitled to show the actual conduct of the plaintiff but the effect of it on the passengers and the complaints of the latter in regard to it, in order to show that its servants acted justifiably and without malice. It cannot, with any reason, be said that such complaints must be made in the presence or hearing of the offender. In this aspect of the case we regard the charge of the court as erroneous and highly prejudicial.

Again, the court proceeded to correctly define the circumstances under which, if found by the jury, they might award to the plaintiff not only compensatory damages, but in addition thereto exemplary or punitive damages. The court even *211cautioned the jury that they should not award exemplary damages, unless they should find that the expulsion of the plaintiff from the car “was done not* only without justification, but in a malicious and insulting manner.” The court then proceeded to say: “Otherwise you should only allow such an amount as would fairly compensate him * * * . And as a matter of compensation you would have a right to alloy him a reasonable amount for the services of his counsel in bringing arid maintaining this action against the company.” In this last sentence, we think that the court fell into a serious error.

Although the doctrine announced in *Roberts*v. *Mason,*10 Ohio St.,*277,*has never been universally accepted in the other states, yet from that time to the present it has been the settled law of Ohio, that in cases involving the elements of fraud, malice or insult, the jurv may award exemplary or punitive damages in addition to damages merely compensatory; and that “in such a case” the jury may include reasonable counsel fees in their estimate of compensatory damages. *Roberts*v. *Mason, ut supra; Atlantic & Great Western Ry. Co.*v. *Dunn,*19 Ohio St., 162; *Finney*v. *Smith*31 Ohio St., 529; *Stevenson*v. *Morris, 37*Ohio St., 10; *Peckham Iron Co.*v. *Harper,*41 Ohio St., 100; *Railroad Co.*v. *Scott,*56 Ohio St., 736. *Contra, Kelly*v. *Rogers,*21 Minn., 146.

But, although we have made a somewhat extended search, we are not aware of anv well considered case in which it was held that, in the absence of statute or express agreement, attorney’s fees might be included ■ as part of the damages *212where compensatory damages only could be allowed. There are, however, numerous cases in which the contrary doctrine has been distinctly announced and applied. We cite a few of them. *Burruss*v. *Hines,*94 Va., 413, 420; *St. Peter’s Church*v. *Beach,*26 Conn., 355; *Eatman*v. *Railway Co.,*35 La. An., 1018; *Welch*v. *Railroad Co.,*12 S. Car., 290; *Lincoln*v. *Railroad Co.,*23 Wend. (N. Y.), 425; *Day*v. *Woodworth,*13 How. (U. S.), 363; *Flanders*v. *Tweed,*15 Wallace, 450; *Joslin*v. *Teats,*5 Colo. App., 531; *Spencer*v. *Murphy, 6*Colo. App., 453.

*Finney*v. *Smith,*31 Ohio St., 529, is chiefly relied upon to support the rule of damages given to the jury in this case. *Finney*v. *Smith*was an action for libel and, in interpreting the language of the court, it should not be forgotten that, when an alleged libel is shown to be false, malice is presumed. In such a case, evidence in mitigation only tends to rebut malice, but it cannot amount to a complete defense or justification. Therefore, so long as the presumption of malice is not entirely overcome the rule of damages laid down in *Roberts*v. *Mason*applies; that is compensatory damages, including counsel fees and, in addition if the jury see fit, exemplary damages. In *Finney*v. *Smith*the court notes the fact (p. 535) that the record contains evidence tending to establish the charge made in the petition and also evidence tending to show that the defendants may have acted under a misapprehension and so the court say, “The clause of the charge excepted to, is not drawn with accuracy and fullness of expression m itself, but, when taken in connection with the whole charge, *213which is set out, we do not find it erroneous; and we see no reason to apprehend that the jury could have been misled by it to the prejudice of defendants.” In our view of the case, the few lines of opinion by Boynton, J., ring clear and true. and meet our approval.

Indeed, it is difficult to understand how the rule of damages given to the iury in this case, can be worked out in harmonv with *Roberts*v. *Mason,*10 Ohio St.,*278,*in which it was said that, “the better opinion now seems to be, that in actions *ex contractu,*arid in cases nominally in tort, but where no wrong in the moral sense of the term is comnlained of, the fees of counsel ought not to be included in the estimate of damages;” and, as it was said by Mr. Justice Grier, in *Day*v. *Woodworth, ut*supra, “it is a moral offense of no higher order, to refuse to pay the * * * damages for a tresoass. which is not wilful or malicious, than to refuse the payment of a just debt.”

The court below properly said to the jury that if they should find that the ejectment of plaintiff from the car was not justified, but was not done with malice or in an insulting manner, they could award compensatory damages only; but the court erred in instructing the jury, in that connection, that, in case they should so find, as a matter of compensation they might allow to the plaintiff a reasonable amount for services of his counsel.

The judgment of the circuit court and .that of the court of common pleas are therefore

*Reversed.*

Crew, C. J., Summers and Shauck, JJ., concur.

*214Price, J.,

dissenting. I am satisfied with' the reversal of the case on the first ground stated in the syllabus and in the opinion, but the second ground, in my opinion, should not be declared to be the law in Ohio.

The plaintiff in the court of common pleas sued to recover damages resulting from an assault made on him by the servants of the defendant company, and it is alleged that the plaintiff was violently seized and tightly grasped by the servant, and forcibly pushed along the aisle of the car, and ejected therefrom, whereby the plaintiff not only suffered mental and physical pain, but was humiliated by the acts and violence of the servant.

The defendant pleaded facts — disorderly conduct, etc. — in justification of the acts of its servants in eiecting the plaintiff. The issues made a case in which it was entirely proper and necessary that the court instruct the jury as to the rule of compensatory and that of exemplary damages, for there was evidence introduced which tended to support plaintiff’s charge. As I understand the majority opinion and the second branch of the syllabus, the right of the jury to allow counsel fees as an element of comnensatory damages, is contingent upon a finding by the jury that a case was made out for exemplary damages; and if a case for exemplary damages is not made out, counsel fees cannot be considered in awarding compensatory damages. This contingency seems unwarranted by the well settled law of this state. Compensatory damages in such actions sounding in tort — assault and battery, and similar acts of personal violence — are to be awarded as *215
      *compensation*for the wrong inflicted, and the compensation should be adequate in so far as the law will afford it.

As often said in the books and decisions, exemplary damages or punitive damages are awarded to make an example of the offending party so that others may be deterred from committing similar wrongs; or, if not as a deterrent, then as punishment of the wrongdoer.- These are not awarded as compensation to the injured party, but for the purpose already stated, and why, after the jury has concluded that there should be exemplary damages awarded,' shall it then go back and again take up the subject of compensatory damages and add the fees of counsel? The trial court could not anticipate what the verdict would be — whether it would include exemplary damages or not, and it attempted, and I think correctly; to lay down the measure as to each kind of damage.

There ought not to be any misunderstanding of what this court has decided upon this question. Commencing with *Stevens*v. *Handly,*Wright, 121, and *Sexton*v. *Todd,*Wright, 316, we find the rule of damages stated. In *Stevens*v. *Handly, supra,*which was a slander case, the court lays down the rule on page. 122, as follows: “But if the words were uttered under circumstances merely mitigating, without justification or excuse, the damages should be compensatory; that they should be sufficient to cover all the expenses and costs of the plaintiffs in litigating the matter, including their loss of time — such as will make them whole. Where the words are spoken without justification, excuse ¡or other mitigating circumstances, the damages *216should be exemplary, to express the estimation in which the jury hold a good character in society, and their reprehension of the habit of wantonly attacking it.” We have .in that case an instance where, there were circumstances in mitigation, and not of wantonness, and yet a right of the injured party to compensatory damages, including all expenses, distinctly recognized.

*Sexton*v. *Todd, supra,*is on the same line. These two cases were reviewed and approved in *Roberts*v. *Mason,*10 Ohio St.,*277.*Some language in the opinion of the court might be clearer and less confusing, but the syllabus, which is the law of the case, seems entirely plain. It is: “(1) In an action to recover damages for a tort (not merely a slander or libel) which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages; and this they mav do although the defendant may have been punished criminally for the same wrong. (2) In such a case the jury mav, in their estimate of *compensatory*damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of the action.”

The counsel fees are classed with compensatory damages and they form no part of the exemplary damages, and are not to be awarded as part of the same. . In *Finney-*v. *Smith,*31 Ohio St., 529, and cited in the majority opinion in this case, this court reviews the cases in Wright’s Report already cited and *Roberts*v. *Mason,*and points out the difference between the syllabus and some language of the judge writing the opinion in *Roberts*v. *Mason,*
      *217
      *supra,*which was a ft assault and battery case. The syllabus in *Finney*v. *Smith, supra,*is: “In an action for libel, the jury may, in estimating *compensatory*damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action, although there may be circumstances of mitigation, not amounting to a justification.” The questions presented to the court in that case called for just such a clear statement of the law, and while Boynton, J., was not willing to place his concurrence on that proposition, he does not controvert it, nor endeavor to show its weakness.

We have not space to quote from the case at greater length. The opinion refers to and approves other authorities which support the doctrine.

Therefore the trial court did not err in that part of the charge relating to compensatory damages. This, like *Roberts*v. *Mason,*was an assault and battery case, leading to ejectment from a car. It is a case sounding in tort, in which both *compensatory*and *exemplary*damages might be awarded, and it seems to me the trial judge correctly stated the law to the jury on that subject.

Spear, J., concurs in the dissenting opinion.