#### Peopled Natural Gas Co. *v.*Millbury.

In an action against a natural gas company to recover damages for personal injuries received in an explosion of natural gas in a city hotel, caused by the alleged negligence of the employees of the defendant in cutting a hole in the service pipe, it is not error for the court to affirm the following request to charge, on the question of exemplary damages : “ If the jury believe it was dangerous to human life and property to make the connection from the mains of the defendant company, in a crowded portion of the city, without first turning off the gas from the mains, and that they knew of the danger and persisted in making the connection after being warned that gas was escaping in dangerous quantities, then this is such evidence of willful negligence, and disregard of consequences, as would justify the jury in awarding exemplary damages.”

Nor is it ground for reversal that the court, in connection with this point, charged that the jury were particularly and specially the sole judges of the question of punitive damages, to be allowed in cases of gross negligence and recklessness.

In the above case, the plaintiff was induced, for a small sum, to sign a release of his claim for damages against-the defendant, by reason of representations made to him by a resident surgeon of the hospital where he had been taken. The representations were to the effect that the plaintiff was not permanently injured, and would be as strong as he ever was for manual labor. These representations were made at the same time that an officer of the defendant was urging a settlement. The court charged that the fact that the doctor and the agent “were acting together, co-operating in procuring this argument, is evidence from which you have a right to find that the settlement was made upon the basis of what the physician said. They were both there urging the same general purpose, and it makes no difference whether they had any previous understanding or any subsequent understanding as to what the doctor was to get, if anything at all, or whether the doctor, acting in good faith, was urging upon the plaintiff certain facts which have turned out to be substantially untrue, but which the doctor may have believed at the time, and which the plaintiff treated and acted upon, and all together treated and acted upon, as the basis of this settlement. Held, no cause for reversal of a judgment for the plaintiff.

Upon the question of fraud, it was no cause for reversal in this case for the court to charge that a material misstatement which induced plaintiff to make the settlement, and upon which he relied, is equivalent to fraud.

Oct. 30, 1888.

Error, No. 194, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict for plaintiff in an action on the case, by John Millbury against the People’s Natural Gas Company, to recover damages for personal injuries caused by the alleged negligence of a servant of the defendant, at Dec. T. 1887, No. 732.

The evidence tended to establish the following facts, on the trial, before Stowe, P. J.:

The plaintiff was a porter at the Albemarle Hotel in the city of Pittsburgh. On the night of Oct. 19, 1887, he went into the cellar of the hotel to cut kindling wood, and, while engaged at work, an explosion of natural gas occurred, which wrecked the hotel and injured the plaintiff. The fire-marshal of Allegheny county testified that he made an examination of the building and found that the explosion was caused by a leak from one of defendant’s pipes; that an employee of the company named Campbell, was superintending the work of introducing natural gas-into the hotel, and, while running in the service pipe, he cut a hole in the pipe, instead of shut*146ting the gas off, and attempted to make the connection while the gas was in the pipe and under pressure. Other witnesses testified that they noticed the loud hissing of the escaping gas, and that they warned the defendant’s employees that there was. likely to be a dangerous explosion, To two persons making such warnings, no reply was made; to two others, the workmen said the gas was going into the air; another person was told to mind his business.

Campbell had been engaged in such work for the last two years or more, and had been working for the defendant for about sixteen months. It was in evidence that “ connections are made to houses and buildings without turning the gas off, by all companies.” The place at which the gas was escaping was in the open air, in the alley, ten feet from the wall of the building. While the gas was escaping, Achilles Dumont, a cab driver, living nearby, called the attention of the men engaged to it, and “ they said it was in the open air, there was no danger.”

After the explosion, the plaintiff was carried to a hospital, where he was attended by Dr. F. P. Wilcox, a surgeon, resident in the hospital. On Nov. 23, 1887, he was able to be up and to walk around; he was then taken' to the private office of Dr. Wilcox, where he met W. T. Marshall, a solicitor of contracts for the company, defendant, who approached him in reference to settling his claim against the company. As a result of this interview, plaintiff executed a release to the defendant for $175, and an order for a pair of trousers and a vest.

The plaintiff’s testimony as to what occurred at this interview was as follows:

“ Mr. Marshall came to see me in the hospital, and he says to me ‘ How are you off for clothes ? ’ Something like that. I said ‘ All the clothes I had got burned off me.’ He says, ‘ I guess I will have to give you some.’ Says I, ‘ Yes, and I guess you can give me something more than that too.’ ‘ Well,’ he says, ‘ I guess we can probably; we can give you a job,’ an easy job, he says, ‘ when you get out of here, for the gas company, in the gas business,’ or somewheres, I don’t know where he meant, and he didn’t say no more then. He come again in a few days, and I was sitting up, and they were making’my bed, and he asked me, ‘ How would $50 suit me,’ and I told him I didn’t know, I would see him later. ‘ Well,’ he says, ‘ if you want that I can bring it over.’ Says I, ‘ No, sir; I don’t want no money over here,’ so he didn’t say any more then about that at all. Then one day, I had just got up after dinner, along about one or two o’clock, I had got up and was sitting there on a chair," and the nurse, Tom, I don’t know what his other name is, they called him Tom, and he come and beckoned for me. I didn’t know who he meant; he says, ‘ You, you come here.’ So I come up and went to him; he says, ‘ Come along, I want you.’ I says, ‘ What are you going to do with me? ’ “Well,’ he says, ‘ come along,’ ■ and I walked along with him out through the hall, out to the ele*147vator ; he says, ‘ Get in! ’ I got in, and went down onto the lower floor, and he was detained there talking to somebody, and I stood and waited for him. And he stood there a little bit, and I waited for -him, and he says, ‘ Come on,’ after he got done talking with somebody, I don’t know who it was; and I went around with him, around another big hall, and went into the doctor’s office, Doctor Wilcox’s office.

“ Q. Who was there? A. That is me, Mr. Marshall and the Doctor was in there. *Q.*What happened in there? A. When I went in there— Q. Was anybody else there? A. Nobody in there just at that time, but the doctor and this Mr. Marshall. I went in; he was sitting in the rocking-chair. Q. Who? A. Mr. Marshall. He got up and gave me the rocking-chair. After he gave me the rocking-chair, I was asked how I felt. I told him I felt tolerably bad enough yet. He asked me, ‘ Did I smoke ? ’ I told him, ‘ Yes, sir;’ says I, ‘ The doctor don’t allow it in here;’ says I, ‘Theydon’t allow it in here.’ The doctor says, ‘You can smoke in here ; this is my part.’ Q. Dr. Wilcox ? A. Dr. Wilcox says, ‘yes, sir.’ So he give me the toby, and I smoked it; give me a toby. After we sat there and talked a little while, he says, ‘ John, I come over to see if you and me couldn’t settle up a little business between us.’ Q. Who said this? A. Mr. Marshall. ‘Well,’ I answered, ‘ it is too late now.’ Says he, ‘ Why?’ Says I, ‘Mr. Knox and Reed has got the case now; it is too late.’ He says, ‘ No; it ain’t too late,’ and the doctor speaks up and says, ‘ No; it ain’t too late ; you can settle it just as well now as you could before; that don’t make any difference ; that don’t make a bit of difference; you can settle as well with him.’ And I says, ‘No; I won’t do that, I ain’t going to do it; I am not going to do anything like that. I don’t think it is right. It is in their hands and I wouldn’t take it out; it ain’t right.’ ‘Oh, yes, you can,’ he says, ‘ you can settle it just as well in their hands as out.’ And I said, ‘ No, I wouldn’t do anything of that kind.’ And they kept on worrying and bothering me about settling, and I told them, ‘ No; I wouldn’t settle under no consideration without seeing my lawyers.’ I says, ‘ I want to see them.’ ‘Oh,’ he says, ‘ it don’t make any difference about seeing them.’ I says, ‘ No, sir; I want to see them. Can’t you wait a few minutes?”

By the Court. — “ Q. Who are you talking about? A. The doctor and Mr. Marshall. Q. You say ‘he?’ A. They was together. Q. Designate each one, and what each one said. A. They both said it; that is why I mentioned them both together. Q. They were both together ? A. Yes, sir.”

By Mr. Knox. — “ Try and separate the conversations. What was it you said about sending for your lawyers? A. I asked them whether they couldn’t wait a few days. Mr. Marshall said ‘ No.’ He wanted to settle it now; ‘ I want to get it over,’ he said, ‘ he was just going on over to see some of the other men;’ said he had set-*148tied with some boy for $15, and another for $2$, and another, I think, for $50. He said, ‘ They are burned as bad as you are.’ ‘ Well,’ I says, ‘ I want to see Mr. Knox first before I settle my case.’ He says, ‘ No, he wanted to settle it now.’ I says, ‘ Can’t you send him word ?’ and he says, ‘ No, you can’t send him any word.’ Q. The doctor said that? A. The doctor said that. He said, ‘ I will tell you what I can do; I can write him a note.’ So he asked me then how much I wanted. Well, he had been talking and saying about settling for such a little amount, I put it up as high as I thought was right, believing what they was saying was right, and I asked them, I says, 200.’ He said, no, he couldn’t give that; he wouldn’t give that. I says, ‘ Well, how much will you give?’ He says, ‘I will give you $150.’ Q. What was said before, if anything, about your injuries? A. Oh, about the injuries, the doctor said I was not injured at all outside of my ‘suffrages;’ he said, of course, I suffered. I says, ‘ Well, you know I suffered.’ He says, ' Yes, I know you suffered all right enough, but,’ he says, ‘ you are not injured bad enough that you cannot do any work.’ He says, ‘ Your face will come just like it was, and your hands, and you will have as much strength as ever you had;’ and he says, ‘ If you go to court I will be your principal witness, and I cannot testify that you are badly injured.’ Q. What did he say about what he would have to swear to ? A. He said he would be my principal witness, and he would swear I was not badly injured at all outside of my ‘ suffrages;’ and he said if it come to court it would be a year or two, or two or three years before it was tried, but he said if it did come up my lawyers would get it all, and I would not get anything, and he said, ‘ You had better take this while you can get it’ Q. Did the doctor say anything, and if so, what, about your capacity to work at that time ? A. He said I was all right; he said I would be all right; I would positively be all right; that I was not injured, was not injured bad that I could not work. Q. Will you tell the jury whether at that time you were bandaged ? A. My hands were bandaged up this far [indicating], I couldn’t use them; couldn’t feed myself at that time, hardly; had to carry my hands folded all the time. Q. What was the condition of your face ? A. I had a bandage over my ears; my ears were all sores, running sores then almost. The principal part of my face had healed, but it was burning all the time. Q. What was your physical condition as to strength or weakness ? A. I was weak, I was not able to be up all day; I could sit up a little while, but not all day. Q. Were you suffering at that time with pain, not at the particular time I don’t mean, but during that time? A. Yes, sir, my hands pained me. Q. I will ask you whether, or not, you believed the representations made by Marshall and the doctor? A. Yes, sir. Q. As to the matter contained in the statement, and as to your physical condition, and as to your future prospect, with respect to the injuries, or whether you would be well or not, and as to the trial of your case, *149and the other matters mentioned? A. Yes, sir; I believed it. Q. You can state whether, or not, that was what caused you to make that settlement? A. That is what caused me to make the settlement ; I believed what they said was right.

Dr. Wilcox testified, inter alia, as follows: “ I told Millbury he would be just as well for manual labor and for work as he had ever been. I told him he was not badly injured, and he was not. I said, compare yourself with those patients that come in here burned, and then I made that comparison; that is what I told him. Q. Was this statement that you made to Millbury, the opinion that you had formed of the case by your connection with it in the hospital ? A. Yes, sir; it was. Q. Was that your honest belief at the time? A. Yes, sir.”

Marshall testified, inter alia, as follows: “ Q. You say Doctor Wilcox joined you in advising him to make this settlement? A. Yes, sir. Q. He added his argument and persuasions to yours, did he? A. There was not very much of an argument used. *Q. To*the extent there was any used, he helped you ? A. Yes, sir.”

The Court charged, inter alia, as follows: “ Upon the question of settlement, you have heard the testimony, and I shall not attempt to repeat it. [The fact that the doctor, Wilcox, and the agent of the company, Mr. Marshall, were acting together, co-operating in procuring this agreement, is evidence from which you can find, or may find, have a right to find, that the settlement was made upon the basis of what the physician said. They were both there urging the same general purpose, and it don’t make any difference whether they had any previous understanding or any subsequent understanding as to what the doctor was to get, if anything at all, or whether the doctor, acting in good faith, was urging upon the plaintiff certain facts which have turned out to be substantially untrue, but which the doctor may have believed at the time, and which the plaintiff treated and acted upon, and, all together, treated and acted upon, as the basis of this settlement.] [8] It is precisely the same as if Mr. Marshall himself had made the statements that were made by the doctor; and even more so, because the doctor would stand there as the man having, assuming to have, knowledge as to the practical results of the burns, and upon whose opinion or declaration the plaintiff would be more naturally inclined to place confidence than that of any other person, and particularly a person connected directly with the defendant. It does not, in that point of view, make any difference that they may have said, one or both of them, that it would be a year or two, or three, before the plaintiff’s case would be tried. That would not be a sufficient misrepresentation in itself. It don’t make any difference that they may have said that the lawyers would get all the money. Whether that is true or not, it would not justify the plaintiff, if there were nothing else in the case, in trying to get out of, undertaking to rescind, or refusing to be bound by his contract, because it is not an essential matter in *150reference to the question that was to be determined. [The misrepresentation, if any there was, as to the actual condition of the plaintiff at the time, with reference to the injury that he had received— not as to the past, because he knew as much about that as anybody —but as to its future effects upon his person, so far as it would have a tendency to disable him from work, — is the important matter. The doctor said then, and he says now, and upon that there seems to be no substantial contradiction, that the man was cured — not altogether, absolutely cured, but, so far as the effect of the injury upon his ability to work was concerned, he was apparently cured ; that the cure would be permanent; that he would be substantially as good for physical labor, and as fitted to make a living with his hands, and any other physical agencies he had been in the habit of using, as he ever was. The doctor says he said that; the plaintiff says that was what was said to him. The doctor says to-day that, in his opinion, he is cured. The injuries have healed ; there is no soreness particularly, as a permanent result of the injuries, as I understand it. But the main point is this : Did the doctor represent to the plaintiff that he would be cured, substantially, so that he would be as efficient and able to make a living with the means a man ordinarily makes a living, or as he made a living, as he was before.] [9] The physician of the hospital [Dr. Childs] says he. is, in his opinion. One or two other physicians say that there is no substantial damage done to his hands. There may be a slight contracting, but his hands, for all substantial purposes, are as good, and will be in future as good as ever they were ; and you have heard what has been said about the lumps upon his face, and the natural tendency of them to increase and cause contraction, deformity and inability to secure, in that way, directly or indirectly, the means of' support.

[“ If you are satisfied, and the burden of proof is on the plaintiff, to satisfy you of the fact that there was a misrepresentation made by the doctor, that was the operating cause in securing the release, that the plaintiff, relying upon it, under the circumstances, believed it to be true, and, by reason of that, signed the release, he is not bound by it, and your verdict, if there is sufficient evidence in the case to find the defendant responsible, should be for the plaintiff] [10] If, however, the evidence does not clearly, concisely and distinctly, or indubitably lead you to that conclusion, the defendant is entitled to the benefit of it. Here is a written contract, signed, sealed and delivered, the consideration handed over; and, while the plaintiff did not get the money, it was his own fault, if fault there was. He had the right to it; the contract was consummated, and, to set it aside, the evidence must be dear, precise and indubitable,— is the language of the text-book, — satisfy you that there was some imposition, whether intentional or not, practised upon the plaintiff, to secure this release. If there was such imposition, you should throw the release out of the case.

“ If you should find that the settlement in this case is not bind*151ing, you will consider all the facts as to the explosion, and here we may say that you must be very careful in passing upon them. It will not do for you or any jury to say that because natural gas was escaping more or less in this alley, and because there was an explosion in the house near the alley, that therefore the defendant is liable. That may be a mere coincidence, and there has got to be something more than a coincidence to justify you in finding a verdict against the defendant. There must be evidence to satisfy you that the gas that escaped at that time and place, was the very gas that in some way or other got into this house and caused the explosion. It does not make any difference if gas was blowing off there for a week until it scared people half to death; if it did not cause this accident, the defendant is not responsible. The theory is set up here that the gas which caused the accident escaped from other sources, came from the pipes or mains of the Philadelphia Company, or from the artificial gas pipes in the house, or both together; and you cannot find for the plaintiff, against this defendant, without you are satisfied that its gas was escaping, got into the house and caused the explosion. It would be unfair and unjust to hold the defendant liable for an accident caused by somebody else, and therefore the evidence, as in all cases, where the burden of proof is on the plaintiff, must satisfy you fairly and reasonably that the gas which escaped at that time, as shown by the testimony, was the gas that got into the house in some way or other and'caused the explosion. You have heard the different suggestions on that, astohow it could and why it could not have gotten in, and it is a matter for you to determine, under the testimony, whether it was the defendant’s gas that got in from this broken or open main. [Everybody seems to take it for granted that it was the defendant’s gas that caused the explosion, but that is no evidence at all that it did. I presume every man on the street, and there were thousands of them that day, and every man, woman and child that read about the accident, believed or thought that it did, but that is no evidence in this case, and you have no right to consider that at all.] [11] All you can consider is the testimony that fairly leads you to believe, if you believe you should, that the gas which escaped and caused the explosion came from the defendant’s main and not from other sources. If you should not believe that the explosion emanated from this source, the fact that the gas escaped there would not justify you in finding against the defendant. You are to determine, as has been very fairly argued on both sides, whether or not the gas that caused the explosion came from the defendant company’s lines. The defendant company say it did not, and undertake to show you how the explosion might or did happen.”

[“ We have another element in this case, which you have heard discussed with very decided emphasis and ability, and that is the question of punitive damages, damages to be allowed in cases where people have been grossly negligent, and superinduced by their neg*152ligence and recklessness, injuries to others have resulted, — damages by way of punishment. That is to be considered by you, and of that matteryou are particularly and specially the sole judges.”] [12] The Court then read and answered the plaintiff’s point, as follows:

“ 1. If the jury believe it was dangerous to human life and property to make the connection from the mains of the People’s Natural Gas Company in Wilson’s alley to the Albemarle Hotel in a crowded portion of the city without first turning off the gas from said mains, and that the defendant company knew of this danger and persisted in making said connection after being warned that gas was escaping in dangerous quantities, then this is such evidence of willful negligence and disregard of consequences as would justify the jury in awarding exemplary damages. *Ans.*Affirmed, in case you should think from all the evidence that it was the gas escaping from defendant’s main or line which caused the explosion.”

The defendant presented the following points:

“1. The writing signed by the plaintiff acknowledging satisfaction in full of all injuries, and the delivering to him of the check good for the amount named at and ever since the said delivery, if obtained without fraud practised upon the plaintiff by the defendant’s agent, is a bar to recovery in this action. *Ans.*Affirmed, with the explanation that a material misstatement which induced plaintiff to make the settlement, and upon which he relied, is equivalent in this case to fraud.” [1]

“ 2. To constitute fraud, invalidating the said writing and settlement, the jury must find that the defendant’s agent made to the plaintiff a false representation of fact (not a matter of opinion) with knowledge at the time of its falsity, and with the intention that it should be acted upon by the plaintiff, and that the plaintiff as a reasonable man had a right to act or rely upon it, and did act and rely upon it, in the signing of said writing, and all this must be established by evidence clear, precise and indubitable. *Ans. “*Refused.” [2]

“ 3. The misrepresentations alleged to have been made by defendant’s agent are presumed to have been made in belief of their truth, and this presumption holds until his knowledge of their falsity, or disbelief in their truth, is proved, and the burden of proving such knowledge of their falsity or disbelief in their truth is upon the plaintiff, and in this case there is no sufficient evidence that any of the misrepresentations alleged were made with knowledge of their falsity or disbelief in their truth. *Ans.*Refused.” [3]

‘‘ 4. In order to bind or affect defendant, by the alleged representations made by Dr. Wilcox at the time of the execution of the writing, it must be shown affirmatively that Dr. Wilcox was authorized by the defendant to act for it in the making of the said settlement, and the burden of proof is on the plaintiff to establish such fact, and there is no sufficient evidence in this case upon which the *153jury can find that Wilcox was the authorized agent of the defendant in the transaction. *Ans.*Refused.” [4]

“ 5. The statements alleged by the plaintiff to have been made by Dr. Wilcox, as to the probable results of his wounds, were of necessity mere opinion of future developments, and, if made in the honest belief of their truth at the time, cannot constitute such fraudulent misrepresentations as to invalidate the contract of settlement, even though the progress of time might prove them erroneous, and there is no evidence in this case to justify the jury in finding that the opinion, alleged to have been expressed or statement made by the doctor, was not made in the honest belief of its truth. *Ans.*Refused.” [5]

“ 6. There is no sufficient evidence in this case of fraud or misrepresentation upon part of defendant to invalidate or set aside the written evidence of the settlement and satisfaction of the plaintiff’s claim. *Ans.*Refused.” [6]

Verdict and judgment for plaintiff for *$4,000.*

*The assignments of error*specified, 1-6, the answers to defendant’s points, quoting the points and answers; 7, the answer to plaintiff’s point, quoting the point and answer; and, 8-12, the portions of the charge included within brackets, quoting them.

*Johns Me Cleave,*for plaintiff in error.

The statements of the doctor, relied upon as constituting the misrepresentations avoiding the contract, lack the very first élement required by the law of such representations. A misrepresentation of any kind, to have any effect upon the validity of a contract, must be a misrepresentation of fact, not of a matter of opinion, judgment or estimate. The statement must also show want of honest belief in the truth of the thing stated, or, which is the same thing, want of reasonable ground upon which an honest belief could be founded: Watts *v.*Cummins, 59 Pa. 89; Anderson *v.*Pacific Ins. Co., L. R. 7 C. P. 65 ; Southern Developement Co. *v.*Silva, 125 U. S. 247; Page *v.*Bent, 2 Metcf. 371; Morse *v.*Shaw, 124 Mass. 59; Homer *v.*Perkins, 124 Mass. 431 ; Behn *v.*Burness, 3 B. & S. 751; Atwood *v.*Small, 6 Cl. & F. 232, 444; Jennings *v.*Broughton, 5 DeG., McN. & G. 126; Pollock on Contracts, 2nd Eng. Ed., 485 ; Western Bank of Scotland *v.*Addie, L. R. 1 H. L. Sc. 168 ; Atlantic Delaine Co. *v.*James, 4 Otto, 207 ; Lawson *v.*Floyd, 124 U. S. 108.

The law raises no presumption of knowledge of falsity from the single fact, per se, that the representation was false. There must be something further to establish the defendant’s knowledge. Fraud must accompany the misrepresentation. Barnett *v.*Stanton,' 2 Ala. 181; McDonald *v.*Trafton, 15 Maine, 225 ; Lynch’s Ap., 97 Pa. 352; Wetherill *v.*Neilson, 20 Pa. 452; Smith *v.*Smith, 21 Pa. 372; Johns *v.*Battin, 30 Pa. 89; Rockafellow *v.*Baker, 41 Pa. 319; Ralston *v.*Groff, 55 Pa. 279; -Brough’s Est., 71 Pa. 461 ; Campbell *v.*Patterson, 95 Pa. 454; Geddes’ Ap., 80 Pa. 462.

*154Jan. 7, 1889.

There was no evidence that Dr. Wilcox was an agent of the defendant. The declarations of an agent are not competent to prove agency.

Campbell was not guilty of reckless indifference to the rights of others; and it was error to submit to the jury, without restriction, the question of exemplary damages.

“ Exemplary damages are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage or wanton recklessness.” Phila. Traction Co. *v.*Orbann, 119 Pa. 37.

“ Grossly negligent,” as used by the court below, is not the equivalent of “ wanton recklessness.” Marklcy’s Elements of Law, 2cl ed., 144. It is nothing more than negligence with a vituperative epithet. . Wilson *v.*Brett, 11 M. & W. 113.

Nor is it equivalent to “ conscious indifference to consequences,” which is the rule of Michigan and Lake Shore R. R. *v.*Rosenzweig, 113 Pa. 535.

Punishment beyond compensation should fall upon the back of the offender, rather than that of his employer. McFadden *v.*Rausch, 119 Pa. 516.

Punishment should not be administered in a civil action. Fay *v.*Parker, 53 N. H. 342; 2 Greenl. Ev. 235, note, 13th ed. Shall defendant be successively punished where more than one suit arises out of the same accident ?

*P. C. Knox,*of *Knox & Reed,*with him, *W. B. Rodgers*and *George C. Wilson,*for defendant in error.

In actions against corporations for injuries received through negligence of their servants, exemplary damages may be recovered when the injuries are wanton and malicious, or are inflicted in a gross or outrageous manner, whether the act was previously authorized or subsequently ratified by the corporation or not. Phila. Traction Co. *v.*Orbann, 1x9 Pa. 42; Michigan and Lake Shore R. R. *v.*Rosenzweig, 113 Pa. 535 ; Milwaukée and St. Paul Ry. *v.*Arms, 91 U. S. 489.

When one party participates in the benefits of a fraud, to accomplish which others were active in his behalf, he cannot avail himself of its fruits and repudiate the means by which they were realized. Hoge *v.*Hoge, 1 Watts, 163.

There was undue influence and undue advantage and such deception and 'misstatement of facts, relied upon, as enabled plaintiff to repudiate the settlement. McGrann *v.*P. & L. E. R. R., 111 Pa. 171.

Per Curiam,

The judgment is affirmed.