The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-03-16

"the consequences as against inno-
scent parties"
The rule is more concisely stated
on the 595th page as follows
"For willful and malicious tres
"pass of servant, not commanded
cor ratified by the master, but per-
operated to crafty the private
"malice of the servant under mere
"cOlor of discharging the duty which
che has undertaken for his master,
"no action will lie against the
"master. But if the act Of the SER
"Vant was necessary to accomplish
"the purpose of his employment,
Sand was intended for that purpose,
"however i'll advised or improper,
"then it was implied in the imploy-
"ment and the master is liable,
"though the servant may have eX-
"ecuted it wilfully and maliciously.
"These rules apply to corporations
Gas to private individuals"
The following cases are among
those which support this statement
of the law: Btyley VS.. Manchester,
ETC., r. r. Co., L. r. s G. P. 148
Fraser VS.. Freeman, 81 Barb. 234
Bryant VS.. Rich. 106 Mass. 1873;
Limpus VS.. London, etc., Genl.
Omnibus Co., H. & G. 526 Mid
ltnd R.R. Co., VS.. Daykin, SO Eng.
L., E. 1913; 9 G. & P. COZ; Phil.
& Read. r. r. Co., VS.. Derby IA
How. 1853; Weldon VS.. Harlem R.
R. Co., 5 Bosw. IN. W 576; Snod-
grass VS.. Bradley, 2 Grants Cases
PENN 43.
1t was within the scope of the
Captains employment to keep order
and enforce discipline on the ship,
and on this occasion it became ne
cessary for him to take summary
measures to do so; but the fact that
he made mistake in judgment in
carrying out his legitimate purpose
and illegally subjected the plaintiff
to injurious treatment, does not re-
lieve the defendant, and it is liable
In damages for the injury sustained
by the plaintiff, including the res
traint after leaving the vessel, that
being the continuation and natural
consequence of the wrong initiated
by the defendants agent on board.
In accordance with the foregoing
statement of the law, we overrule
all of the defendants exceptions to
the instructions of the Court OF its
refusal to instruct the jury in rela-
ton to the questions of the defend
ants liability, and of plaintiffs right
to damages for the continued re-
straint suffered by him after having
been taken from the vessel.
The defendant further asked thai
the following instruction be given
to the jury: "The defendant COM
"pany not having participated in
"the act complained of by the plain
"tiff, are liable to him only for the
"actual damages attending the act
"of the Master, if that act was un'
mawful, and no exemplary or punt
"tive damages can be allowed
"against defendants" This instruc'
ton was refused and the defendant
excepted, and excepted also to the
charge of the Court as whole.
This last instruction should have
been given, if not in the words re
quested, then in other words sub
stantially covering the ground. We
find no instruction on this point il
the charge of the Court as reported
though it contains nothing directly
inconsistent with it.
The defendant was entitled t.
have the attention of the jury called
to this distinction between actua
damages and exemplary or punitive
damages, and to have them instruct
ed to base their estimate of damage
solely upon the actual injuries suf
fered by the plaintiff as the result
of the unlawful conduct of the agen
of the defendant. (Amiable Nancy
Wheat. 558; Mcclure VS.. Colder
Gate, % Myers Fed. Dec. 1862
Field on Damages, Sec. SO and 679.
For the want of instruction oil
this point the jury may have adopt
ed the principle of exemplary dam
ages in making up their verdict
and so have returned larger amour
against the defendant than if the.
; had been limited to actual damages
1t was the defendants right to hav
been protected from this danger b,
,, the Court, and this not having beel
done, it seems to US that the verdic
should be set aside as to the amour
of damages and new trial allowe'
to reconsider and decide the ques
ton of the amount of damages.
And we so order.
Paul Neumann and A. P. Peter
: son for plaintiff.
Ashford & Ashford for defendant
l March 1st, 1892.
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