#### Ernest Fyfe, Appellee, v. James C. Davis, Appellant.

RAILROADS: Director General — Exemplary Damages. Exemplary damages are not recoverable against the director general of railroads.

*Appeal from Balias District Court.*— H. S. Dugan, Judge.

May 6, 1924.

Action for damages resulting from personal injuries caused by an assault on the part of an employee of the director general of railroads, while the railroads were under Federal control. There was a verdict for the plaintiff, and from a judgment thereon the agent of the railroad administration appeals.—

*Reversed.*

*Hughes, Ta/ylor & O’Brien*and *White & Clarke,*for appellant.

*George Dugan,*for appellee.

Vermilion, J.

The plaintiff and the defendant Dollarhide were both in the employ of the director general of railroads, on the line of the Chicago, Milwaukee & St. Paul Railway Company, at Perry, during the period of Federal control of railways. It was alleged in the petition, and there was evidence tending to show, that the plaintiff was employed as a fireman, and the defendant Dollarhide was night roundhouse foreman, at Perry; that, while both plaintiff and Dollarhide were engaged in their respective duties, the latter made an unprovoked assault upon plaintiff, and inflicted a serious and permanent injury. It was alleged that Dollarhide was a man of violent, ungovernable, and *1092dangerous disposition, which, was known to the other defendant, the director general; and negligence was alleged on the part of the director general in employing him and in failing to furnish plaintiff a safe place in which to work and carry on his duties. There was a verdict and judgment against both defendants, Dol-larhide and the director general, for $10,000.

The only question presented- on appeal is the action of the trial court in instructing the jury that exemplary damages might be awarded against the agent of the United States railroad administration. It should be observed that the error alleged is not predicated on any want of an allegation that the act of Dollar-hide was malicious, but upon the proposition that in no event can exemplary damages be recovered against the railroad administration while the railroads were under Federal control, or against the agent appointed by the president as the person to be sued after the termination of Federal control, upon a cause of action arising during Federal control.

The act of Congress of March 21, 1918, knownjis the Federal Control Act (40 Statutes at Large 456), provided in Section 10 that the carriers, while under Federal control, should be subject to all laws and liabilities as common carriers, except in so far as is inconsistent with the provisions of that or any other act applicable to Federal control or any order of the president; and that actions at law or suits in equity might be brought against the carriers, and judgment rendered as provided by law; and that no defense should be made upon the ground that the carrier was an instrumentality of the Federal government. In the case of *Missouri Pacific R. Co. v. Ault,*256 U. S. 554 (65 L. Ed. 1087), it was said that the purpose for which the government permitted itself to be sued was compensation, not punishment; and attention was called to the language of General Order No. 50, by the director general, relating to actions against the director general, wherein it was provided that it should not apply to “actions, suits, or proceedings for the recovery of fines, penalties, or forfeitures.” It was said that, wherever the law permitted compensatory damages, they- might be collected against the carrier while the railroads were under Federal control, but that double damages, penalties, and forfeitures which did not merely compensate, but punished, were not within the purview *1093of the statute. Following the *Ault*ease, it has been held that the director general was not liable for a statutory penalty for killing live stock and failing to keep a record of the fact *(Bliss v. Oregon Short Line R. Co.,*34 Ida. 351 [200 Pac. 721]), or for a *penalty*imposed by a state statute for an overcharge of passenger fare *(Davis v. Smith,*[Ark.] 234 S. W. 484). Upon the precise point raised here, it has been held that exemplary or punitive damages cannot be recovered against the director general. *Payne v. Bartlett,*127 Miss. 189 (89 So. 912); *Massey v. Hines,*117 S. C. 1 (108 S. E. 181); *Payne v. Smitherman,*206 Ala. 591 (91 So. *575); Davis*v. *Elzey,*126 Miss. 789 (89 So. 666).

The force of these decisions is attempted to be met by the contention that exemplary damages are to some extent compensatory, and therefore come within the recovery of compensation as permitted in the Federal Control Act, as construed in the *Ault*ease. Without determining whether such a contention is correct as a mere matter of legal definition, it is apparent that the instructions complained of cannot be sustained on that theory. The court enumerated the various elements of actual damage, including loss of time and the expense of medical services, impairment of earning power, physical and mental pain and suffering, and disfigurement, and then instructed that, in addition to the actual damages, the jury might allow plaintiff a further sum as exemplary damages, if it was found that Dollarhide acted maliciously; and that exemplary damages are given whenever elements of oppression, fraud, or malice enter into the commission of the offense, and in such eases the jury is not limited to actual compensation, nor required to scrutinize very closely the amount of the verdict, but, blending together the fights of the injured party and the interests of the community, may give such a verdict as will compensate for the injury and at the same time inflict some punishment upon the offender for his wrongful act, and protect society from like acts on his part.

Under the instructions, it cannot be doubted that the jury was told that it might, in addition to compensatory damages, allow a further sum, as purely exemplary or punitive damages, and by way of punishment of the defendants, if Dollarhide’s act was found to have been malicious. Such an instruction was, *1094under tbe authorities cited, erroneous, as applied to the director general.

It is urged that the amount awarded is not excessive, and ivas fully warranted as merely compensatory for the injury received. We think, however, in view of the amount of the verdict and the testimony in relation to the character and extent of plaintiff’s injury, that it cannot be said that the giving of the instructions complained of was not prejudicial. The judgment against the appellant Davis *is*— Reversed.

Arthur, C. J., Stevens and De Graee, JJ., concur.