between her destination and the next station. The weight of the evidence shows that the conductor then informed her that she could either go on to the next station, or he would stop the train, and she could get off there; and that upon his so telling her the second time, he did stop it, and she got off at that point, which was a lonely place, and about a mile beyond her station. She said that the conductor "seemed very impatient, and his tone was rather rough for a gentleman"; that he did not assist her in getting off with her baggage, which consisted of a valise and bundle, and that as she jumped from the lower step of the platform to the ground he stood upon the platform, while a brakeman of the train, who was standing by, looked at her and "grinned."

Upon the other hand, there is evidence to the effect that the conductor did assist her out of the car, and was altogether kind and polite in his manner. There was no request upon her part that the train should be backed to her station; but this should have been done under the circumstances. The appellee was compelled to walk back to her station, and from thence three quarters of a mile to her home; in consequence of which she was confined to her bed the most of the time for three or four days, and unable to teach her school for a week. The jury in this action by her for damages returned a verdict for three thousand dollars.

Manifestly, it cannot be sustained upon the ground that it did not include exemplary damages, and was compensatory only for the breach of the contract for transportation.

If upheld, it must be upon the ground that she was entitled to exemplary damages, and that this question was submitted to the jury by proper instructions. They were told, "if the jury believe from the evidence that the defendant's agents or employees, or any of them, in charge of defendant's train, carried the plaintiff beyond the station for which she had purchased a ticket, and refused to put her off at her station, and were indecorous or insulting, either in words, tone, or manner, they should find for the plaintiff, and award her damages in their discretion, not exceeding five thousand dollars, the amount claimed in the petition."

A corporation can act only through natural persons. It, of necessity, commits its business absolutely to their charge. They are, however, selected by it. In the case of a railroad, the safety and comfort of passengers is necessarily committed to them. They act for it. Its entire power, pro hac vice, is

vested in them, and as to passengers in transitu, they should be considered as the corporation itself. It is, therefore, as responsible for their acts in the conduct of the train and the treatment of the passengers as the officers of the train would be for themselves if they were the owners of it.

Public interests require this rule. They also demand that the corporation should be, and it is, liable for exemplary damages in case of an injury to a passenger resulting from a violation of duty by one of its employees in the conduct of the train, if it be accompanied by oppression, fraud, malice, insult, or other willful misconduct, evincing a reckless disregard of consequences: Dawson v. Louisville etc. R. R. Co., 6 Ky. 668. As to female passengers, the rule goes still further. Their contract of passage embraces an implied stipulation that the corporation will protect them against general obscenity, immodest conduct, or wanton approach: Commonwealth v. Power, 7 Met. 596; 41 Am. Dec. 465; Croaker v. Chicago etc. R'y Co., 36 Wis. 657; 17 Am. Rep. 504; Nieto v. Clark, 1 Cliff. 145; Chamberlain v. Chandler, 3 Mason, 242.

It was improper, however, to instruct the jury, as was in effect done in this instance, that "indecorous" conduct alone is sufficient to authorize exemplary damages. The term is too broad. It may embrace conduct which would not authorize their infliction.

It is true that the peculiar element which, entering into the commission of wrongful acts, justifies the imposition of such damages cannot be so definitely defined, perhaps, as to meet every case that may arise. It has been said that they are allowable where the wrongful act has been accompanied with "circumstances of aggravation": Chiles v. Drake, 2 Met. 146; 74 Am. Dec. 406; or if a trespass be "committed in a highhanded and threatening manner": Jennings v. Maddox, 8 B. Mon. 430; or where the tort is "accompanied by oppression, fraud, malice, or negligence so great as to raise a presumption of malice": Parker v. Jenkins, 3 Bush, 587; or, as was said in Dawson v. Louisville etc. R. R. Co., supra, where the wrongful act is accompanied by "insult, indignity, oppression, or inhumanity."

It would, however, be extending the rule unwarrantably to hold that they could be imposed, provided the conduct was merely "indecorous." This, as defined by Webster, and as commonly understood, means impolite, or a violation of good manners or proper breeding. It is broad enough to cover the

slightest departure from the most polished politeness to conduct which is vulgar and insulting.

It does not necessarily, or indeed generally, involve an insult. The latter assumes superiority, and offends the selfrespect of the person to whom it is offered; while the former excites pity or contempt for the one guilty of it. A word or act may be both indecorous and insulting, but yet it often lacks the essential elements of an insult.

In the case now under consideration, the jury may have believed it was indecorous in the conductor not to stop the train at the platform; or not to carry her valise for her when she was leaving the train; or to let her get off between stations, although she chose to do so rather than suffer inconvenience by being carried to the next one; or in merely telling her that she could walk back to her station,-yet none of these things amounted to "insult, indignity, oppression, or inhumanity."

The lower court properly refused the request as made for special findings. The interrogatories offered merely required the jury to say what amount they found as compensatory and what sum as exemplary damages. They involved mixed questions of law and of fact.

Upon a retrial, the question of limiting the finding to compensatory damages should be presented to the jury under proper instructions, and the difference between them and those which are exemplary defined.

The evidence as to the conduct of the brakeman was competent. It is true that it was not specifically complained of in the petition, but only that of the conductor. The brakeman was, however, one of the agents of the railroad company in the management of the train upon which the appellee was a passenger. It is not necessary that a petition should enumerate specifically that this or that person connected with the management of the train was guilty of improper conduct in order to authorize the admission of evidence as to this or that particular party. It is sufficient to aver the breach of duty upon the part of those in control of the train. Beside, in this instance, the conduct of the brakeman complained of was in the immediate presence of the conductor, and occurred at the time of the other alleged acts of which the appellee complains. We do not mean to say whether he was guilty of improper conduct or not; but it was a part of the res gestæ, and therefore admissible. Any circumstances attending the commission

of a trespass or a wrong, although not set forth in the declaration, may be given in evidence, with a view of affecting the question of damages, save where they within themselves constitute an independent cause of action: Sedgwick on Measure of Damages, 538, note 3.

For the reason indicated, the judgment below is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.

CONDUCTOR, IN LINE OF HIS DUTY IN COLLECTING FARE, taking up tickets, and in giving information to passengers on his train, represents the railroad company only as to the running and operation of his own train: Atchison etc. R. R. Co. v. Gants, 38 Kan. 608; 5 Am. St. Rep. 780. And his duty ceases when he has given his passengers safe carriage to their point of destination, announced the train's arrival at the station, and afforded them a reasonable opportunity to leave the cars: Hurt v. St. Louis etc. R. R. Co., 94 Mo. 255; 4 Am. St. Rep. 374; Cincinnati etc. R. R. Co. v. Carper, 112 Ind. 26; 2 Am. St. Rep. 144; C. O. & S. R. R. Co. v. Wills, 85 Tenn. 613; Raten v. C. I. Ry Co., 74 Iowa, 732.

LIABILITY OF RAILROAD COMPANY FOR EXEMPLARY DAMAGES to person injured by wrongful or negligent act of conductor of train: International etc. R. R. Co. v. Wilkes, 68 Tex. 617; 2 Am. St. Rep. 515; and see Kline v. Central Pacific R. R. Co., 37 Cal. 400; 99 Am. Dec. 282, 289, note; Cincinnati etc. R. R. Co. v. Carper, 112 Ind. 26; 2 Am. St. Rep. 144, and note 154; Forsee v. Alabama etc. R. R. Co., 63 Miss. 66; 56 Am. Rep. 801; Kuhn v. Chicago etc. R. R. Co., 74 Iowa, 137.

AVERY V. MEIKLE.

[85 KENTUCKY, 435.]

TRADE-MARKS. TO CONSTITUTE VIOLATION OF RIGHT OF PROPERTY IN TRADE-MARK, it is not necessary that the trade-mark itself should be imitated. If the simulation in every other respect be such as to destroy the efficacy of the trade-mark, and induce the public to believe that the manufactured article is that of the real owner of the trade-mark, it becomes as much a violation of property as if the trade-mark itself had been used.

TRADE-MARKS. - WHERE ONE'S RIGHT OF PROPERTY IN TRADE-MARK HAS BEEN VIOLATED, HE MAY ELECT to claim damages, or require the wrongdoer to account for profits. And the fact that the injured party, in an action in equity to restrain the wrong-doer, claimed "damages" will not preclude him from electing to take the "profits," which is the true criterion of damages in equity, no other special injury being alleged or claimed; nor will the plaintiff in such action be required to show affirmatively the extent of his injury, but the court will assume as matter of law that those purchasing the simulated goods would have been the customers of the plaintiff but for the simulation.

TRADE-MARKS.-LACHES IN PROSECUTION OF CLAIM FOR PROFITS not such as to preclude relief under the circumstances of the particular case.

W. O. and J. L. Dodd, John M. Brown, Hargis and Eastin, and Muir and Heyman, for the appellants.

James S. Pirtle, William Lindsay, and George M. Davie, for the appellees.

PRYOR, C. J. The original action was instituted in the court below by the present appellants, and an injunction obtained, restraining the appellees from the use of appellants' trade-mark upon certain plows, and to prevent them (the appellees) from selling their plows as the plows of the appellants. The chancellor below having denied the relief, his judgment was reversed, this court, upon the hearing, holding that while the appellees had not used the trade-mark proper of the appellants, they had so arranged or placed the letters and numerals used by the appellants on their plows, the plows of the appellees, and with the same coloring and staining had so simulated their manufacture as to cause their plows to be taken and sold as those made by the appellants, and that an intentional violation of the latter's right of property was in this way made to deceive the public, and to enable the appellees to sell their manufactures as those of the Averys, the appellants.

This court said: "By skillful combination of legal particles, taken one at a time, and in the aggregate leaving the mere trade-mark untouched, they have so confused its force and ef fect as to destroy its office and real efficiency to distinguish appellants' plows from all others ": Avery v. Meikle, 81 Ky. 113.

The right of the appellants to an injunction was finally determined, and the case remanded for further proceedings.

On the return of the case to the lower court, the appellants asked for a reference to the commissioner, with directions to hear proof, and state an account of damages between the parties by reason of the wrongful acts of the appellees; that the appellees be compelled to state the number of plows that had been thus simulated by them that were sold, and the profits made on the sales, and that they be compelled to produce their books, etc.

The court declined to make such an order, and the case having been transferred to the law and equity court, that court refused to instruct the commissioner to report what profits the defendants (appellees) had made, but held that as the infringement of the property right had been committed by other means