#### PATRICK M. HAIRSTON v. ATLANTIC GREYHOUND CORPORATION.

(Filed 7 January, 1942.)

1. Trial § 31 — Charge held for error as containing expression of opinion that amount paid defendant for release was inadequate.

In this action for tortious injury defendant set up a release executed by plaintiff in consideration of the sum of $55, which sum defendant contended was adequate compensation for the injury. The court in instructing the jury upon the question of nominal damages charged that nominal damages might consist of stipulated sums of from $1 to $50, or even $100. The court had theretofore charged the jury that it might consider the inadequacy of the sum paid for the release upon the issue of fraud in its procurement. Held: The statement that $55 or $100 should be considered mere nominal damages amounted to an expression of opinion that the amount paid for the release was inadequate, and constitutes error entitling defendant to a new trial.

2. Damages § 1—

Nominal damages are some trifling sum awarded in recognition of defendant’s invasion of some legal right of plaintiff which results in no actual injury or pecuniary loss, and when all the evidence discloses actual injury and pecuniary loss there is no necessity for an instruction as to nominal damages.

3. Torts § 8c — Evidence held not to establish ratification of release as matter of law.

The evidence disclosed that the consideration of the release executed by plaintiff was $55, of which $25 was paid the doctor and $15 was paid the attorney representing plaintiff at the time. There was evidence tending to show plaintiff’s ignorance, the condition of his attorney at that time, and the oppressive manner and language of those who procured the release. Held,: Considering plaintiff’s evidence in the light most favorable to him, the fact that plaintiff accepted and spent the $15 which came to him out of the sum paid for the release does not establish ratification of the release as a matter of law, but the issue was correctly submitted to the jury.

*6434. Damages § 7—

Where an injury is maliciously or fraudulently inflicted or is accompanied by insult or wanton disregard of plaintiffs rights, the jury may, if they deem it proper to do so, award punitive damages in addition to compensatory damages.

5. Same—

A corporation is liable for punitive as well as compensatory damages upon the principle of respondeat superior when the injury is inflicted in a manner which would justify such an award, by a servant or agent acting within the scope of his employment and in the furtherance of the master’s business.

6. Same—

In addition to its liability for punitive damages upon the principle of respondeat superior, a corporation may be liable for punitive damages if the injury results from breach of duty directly owing from the corporation to the injured person growing out of the relationship between them, such is the duty of a common carrier to protect a passenger from assault from any source, especially a malicious or wanton assault committed by its employee while on duty.

7. Carriers § 31a—

A common carrier owes a high degree of duty to a passenger to protect him from assault from any source and is liable for a malicious or wanton assault committed on a passenger by an employee while on duty, whether the employee’s acts are within the line of his employment or not.

8. Damages § 11—

Evidence of the financial condition, of defendant is competent upon the issue of punitive damages.

Appeal by defendant from Rousseau, J., at June Term, 1941, of Foesyth.

New trial.

This was an action to recover damages for an assault upon the plaintiff while a passenger in defendant’s bus station. The assault was committed by one of defendant’s employees by burning defendant’s feet with gasoline.

The plaintiff, a Negro, was in defendant’s bus station, at night, waiting for a bus upon which he intended to become a passenger. While he was asleep the defendant’s porter and attendant on duty in the colored waiting room poured gasoline on plaintiff’s feet and set them on fire, causing substantial injury. The material facts were admitted in the answer. The defendant’s principal defense was a release executed upon the payment of $55. The release was attacked for fraud. Eatification was alleged in defendant’s rejoinder.

Issues addressed to the execution of the release, fraud in its procurement, and ratification, as well as issues relating to the commission of the act causing the injury, and damages, both compensatory and puni*644tive, were submitted to the jury and answered in favor of tbe plaintiff. Compensatory damages in tbe sum of $500 and punitive damages in tbe sum of $1,000 were awarded.

From judgment on tbe verdict, defendant appealed.

J. Brie McMichael and Andrew Joyner, Jr., for plaintiff, appellee.

Ratcliff, Hudson & Ferrell for defendant, appellant.

Devin, J.

Tbe defendant assigns as error tbe following excerpt from tbe trial judge’s charge to tbe jury: “Nominal damages, gentlemen, are construed to be, say $1.00, $10.00, $15.00, $50.00 — some nominal damages, and if you reach this issue and you find be is not damaged more than what is a nominal sum of money, you are to answer this, then, in a nominal sum of money unless you find that tbe sum of $55.00 paid to him and bis lawyer and bis doctor is a full, just and complete settlement already. . . . Tbe defendant says, therefore, on this issue you ought not to allow any amount of • nominal damages, because tbe defendant says it has already paid tbe plaintiff $55.00, which is nominal damages as tbe court instructed you, regarded usually as $1.00, $10.00, $15.00, $25.00 or $50.00, maybe $100.00, as nominal damages.”

Tbe vice of this instruction consists not so much in its effect upon tbe issue of damages, as to which it might be deemed harmless in view of tbe verdict of the jury, but we think it was prejudicial on tbe issues relating to tbe release set up in tbe answer upon which tbe case largely binged. Tbe court bad instructed tbe jury that they might consider on tbe issue of fraud tbe inadequacy of tbe sum of money paid for tbe release. Tbe amount paid in settlement was admitted to have been $55.00. This amount tbe defendant contended was an adequate compensation for the injury plaintiff sustained. Hence, tbe statement by tbe presiding judge that $55 or $100 should be considered as mere nominal damages was tantamount to an expression of opinion that tbe amount paid was inadequate.

Tbe court’s statement of tbe rule as to nominal damages was inexact. Nominal damages, consisting of some trifling amount, are those recoverable where some legal right has been invaded but no actual loss or substantial injury has been sustained. Nominal damages are awarded in recognition of tbe right and of tbe technical injury resulting from its violation. They have been described as “a peg on which to bang tbe costs.” Hutton v. Cook, 173 N. C., 496, 92 S. E., 355; 15 Am. Jur., 390. “What is meant by nominal damages is a small trivial sum awarded in recognition of a technical injury which has caused no substantial damage.” Wolfe v. Montgomery Ward & Co., 211 N. C., 295, 189 S. E., 722. In view of tbe evidence, tbe necessity for an instruction as to nominal damages does not appear.

*645Defendant contends its motion for judgment of nonsuit should have been allowed on the ground that plaintiff’s evidence showed ratification of the settlement by the acceptance and spending of $15 cash which came to him out of the $55 paid for the release. It was admitted that of the consideration for the release, $25 was paid the doctor and $15 was paid to the attorney engaged to represent plaintiff at that time.

We cannot concur in this view. Taking the plaintiff’s testimony in the light most favorable for him, and considering the evidence tending to show plaintiff’s ignorance, the condition of his attorney at that time, the oppressive manner and language of those who procured the release and paid him the $15, we are unable to say that plaintiff “has proved himself out of court.” Hayes v. Tel. Co., 211 N. C., 192, 189 S. E., 499. We think the question of ratification under all the circumstances was one for the jury. Butler v. Fertilizer Works, 193 N. C., 632, 137 S. E., 813; Hayes v. R. R., 143 N. C., 125, 55 S. E., 437.

The defendant excepted to the submission of the issue as to punitive damages, on the ground that the corporation should not be held liable for punitive damages for the assault upon the plaintiff, committed by its servant, since the act was outside the scope of the servant’s employment and not in furtherance of defendant’s business.

The general rule in this jurisdiction is that, in addition to compensatory damages, designed to compensate for the injury or loss sustained, punitive damages or smart money may be awarded by the jury, if they deem proper to do so, when they find that the tortious conduct complained of involves elements of malice, fraud, insult, or wanton and reckless disregard of the plaintiff’s rights. Roth v. News Co., 217 N. C., 13, 6 S. E. (2d), 882; Tripp v. Tobacco Co., 193 N. C., 614, 137 S. E., 871; Ford v. McAnally, 182 N. C., 419, 109 S. E., 91; 15 Am. Jur., 710; 25 C. J. S., 715. It is equally well settled that liability for punitive damages may be imposed upon a corporation or other principal when the injury is inflicted in a manner which would justify such an award, and the servant or agent causing the injury is acting within the scope of his employment and in the furtherance of the master’s business. Picklesimer v. R. R., 194 N. C., 40, 138 S. E., 340; Robinson v. McAlhaney, 214 N. C., 180, 198 S. E., 647. There the liability for punitive as well as compensatory damages is referable to the principle of respondeat superior.

There are cases, however, where the award of punitive damages has been upheld for injuries resulting from breach of duty directly owing from the corporation to the injured person, growing out of the relationship between them, and this principle has been applied to cases of assaults by employees of common carriers committed upon passengers. This principle was stated and applied by Hoke, J., in the case of Clark *646 v. Bland, 181 N. C., 110, 106 S. E., 491. In that case the plaintiff Clark went to a railroad station intending to become a passenger, and, while waiting for the train, was called to one side by the assistant station agent and assaulted for reporting him for selling whisky. The assault occurred either on or near the railroad premises. An instruction by the trial court that punitive damages might be awarded by the jury, in their discretion, was upheld. The Court said: “It is now fully recognized that corporations may be held liable for the malicious and willful as well as negligent torts of their agents and employees, when committed in the course of and scope of their employment, and also for injuries inflicted in breach of some duty owing directly from the company to the injured person, growing out of the conditions existent between them, an instance of this last rule of liability being not infrequently presented from the relationship of carrier and passenger.”

The Court in that case further said: “The jury, under a correct charge, having accepted the view that the relationship of carrier and passenger existed between plaintiff and defendant company, the authorities are very generally to the effect that the corporation is held to a high degree of care in protecting plaintiff from violence and insult, and may be held liable for injuries inflicted in breach of this duty on the part of their employees, and of others, also, which it could have prevented in the reasonable and proper performance of their duty (citing authorities). And these and many other cases in this jurisdiction hold that when such injuries are inflicted willfully and of malice or under circumstances of insult, rudeness, and oppression, punitive damages may be awarded in the discretion of the jury” (citing authorities).

The Court distinguished the Clark case, supra, from Stewart v. Lumber Co., 146 N. C., 47, 59 S. E., 545, and from Lake Shore R. R. v. Prentice, 147 U. S., 101, and quoted from Sawyer v. R. R., 142 N. C., 1, 54 S. E., 793, as follows: “The distinction adverted to is pointed out in Sawyer’s case, 142 N. C., 1, as follows: ‘According to the varying facts of different cases, the question of fixing responsibility on corporations by reason of the tortious acts of their servants and agents is sometimes made to depend exclusively on their relationship as agents or employees of the company, and sometimes the facts present an additional element and involve some independent duty which the corporations may owe directly to the injured or complaining party.’ ”

“In our case,” continues the opinion of Justice Hoke in the Clark case, supra, “this additional element is present, the suit being for a breach of duty growing out of the relationship of carrier and passenger, and by an agent of the company charged in part with performance of the duty of protection and care of plaintiff, and in such case the authorities in this jurisdiction uphold the award of punitive damages where, as stated, the *647wrong is done willfully and under circumstances of insult, rudeness, or oppression. . . . And so bere it was proper to submit tbe question of punitive damages to tbe jury on evidence tending to sbow an unlawful and malicious assault on plaintiff, wbo was on tbe premises of defendant as a passenger, and by an agent or assistant agent of tbe company, wbo was charged in part with tbe duty of tbe protection due plaintiff from tbe company as its passenger.”

We quote also from an opinion by Walker, J., speaking for tbe Court in Lanier v. Pullman Co., 180 N. C., 406, 105 S. E., 21, as follows: “Passengers do not contract merely for accommodation and transportation from one point to another; tbe contract includes assurance of good treatment and against personal rudeness and every wanton interference witb their persons, either by tbe carrier or bis agents employed in tbe management of the railroad train or other conveyance. In respect to such treatment of passengers, not merely officers, but tbe crew, are agents of tbe carriers. It is among tbe implied provisions of tbe contract between passengers and a railroad company that tbe latter has employed suitable servants to run its trains, who will accord proper treatment to them; and a violation of this implied duty or contract is actionable in favor of tbe passenger injured by its breach, although tbe act of the servant was willful and malicious, as in tbe case of a malicious assault upon a passenger, committed by any of the train bands, whether within tbe line of bis employment or not. Tbe duty of tbe carrier towards a passenger is contractual, and, among other implied obligations, is that of protecting a passenger from insults or assaults by other passengers or by their own servants.”

To tbe same effect is the bolding in White v. R. R., 115 N. C., 631, 20 S. E., 191, and Williams v. R. R., 144 N. C., 498, 57 S. E., 216. See, also, Seawell v. R. R., 132 N. C., 856, 44 S. E., 610.

In Hutchinson v. R. R., 140 N. C., 123, 52 S. E., 263, it was said: “Tbe authorities are plenary that the passenger is entitled to recover punitive damages for insult or mistreatment on tbe part of any employee of tbe common carrier.” In Williams v. Gill, 122 N. C., 967, 29 S. E., 879, it was said: “Indeed, where tbe relation of carrier and passenger exists, tbe conduct of tbe employee of tbe carrier in inflicting violence on tbe passenger, though tbe act be outside of tbe scope of bis authority or even wilful and malicious, subjects tbe carrier to liability in damages just as fully as if tbe carrier bad encouraged tbe commission of tbe act.”

In 10 Am. Jur., 263, referring to tbe liability of common carriers for assaults on passengers by employees, it is said: “This liability extends not only to cases where the assault was in the line of tbe employee's duty, but also to those where tbe act was merely that of an individual and entirely disconnected witb tbe performance of the agent’s duties.” *648And in 13 C. J. S., 1280, on tbe same point, discussing tbe liability of carriers for assaults on passengers committed by its employees, it is said: . . tbe carrier is liable, irrespective, according to some cases (citing, among other cases, Clark v. Bland, supra), of whether the servant, in performing the act complained of, was acting for the carrier or for his own purposes, ... or was within the scope of his employment.”

Unquestionably the general rule, established by the decisions of courts in this and other jurisdictions, is that the liability of corporations for damages, both compensatory and punitive, for injuries due to wrongful acts of servants, ordinarily, may only be imposed when the relationship of master and servant is shown to exist at the time and in respect to the very transaction out of which the injury arose. Liverman v. Cline, 212 N. C., 43, 192 S. E., 849; Snow v. DeButts, 212 N. C., 120, 193 S. E., 224; Smith v. Duke University, 219 N. C., 628, 12 S. E. (2d), 643.

But, as pointed out in the cases cited, a distinction is to be noted in the application of this rule to cases where it appears that a duty directly owing from the master to the injured person grows out of the relationship of carrier and passenger. Since the carrier owes a high duty to a passenger to protect him from assault from any source, a malicious or wanton assault committed on a passenger by an employee while on duty, whether within the line of his employment or not, constitutes a breach of duty directly imposing liability. It may be noted that in Snow v. DeButts, supra, the plaintiff, who was alleged to have been assaulted by an agent of the railroad company, was not a passenger.

In accord with the principle stated in the authorities from which we have quoted, the submission of the issue as to punitive damages may not be held for error. Hence, evidence of the financial condition of the defendant was competent. Bryant v. Reedy, 214 N. C., 748, 200 S. E., 896; Roth v. News Co., supra.

While there 'must be a new trial for the error pointed out in the court’s instructions to the jury, we have deemed it proper to decide other pertinent questions presented by the appeal.

New trial.