Panama R. Co. v. Bosse, 249 U.S. 41 (1919)

249 U.S.
41
39 S.Ct. 211
63 L.Ed. 466
PANAMA R. CO.
v.
BOSSE.
No. 203.
Submitted Jan. 31, 1919.
Decided March 3, 1919.
Messrs. Frank Feuille, of Ancon, Canal Zone, and Jackson H. Ralston and
William E. Richardson, both of Washington, D. C., for plaintiff in error.
Messrs. Theodore C. Hinckley, of Panama, Canal Zone, and Joseph W.
Bailey, of Washington, D. C., for defendant in error.
Mr. Justice HOLMES delivered the opinion of the Court.
This is an action for personal injuries and consequent suffering alleged to have
been caused, on July 3, 1916, by the Railroad Company's chauffeur's negligent
driving of a motor omnibus at an excessive rate of speed in a crowded
thoroughfare in the Canal Zone. The suit was brought in the District Court of
the Canal Zone. The defendant, the plaintiff in error, demurred to the
declaration generally, and also demurred specifically to that part that claimed
damages for pain. The demurrer was overruled and there was a trial, at which,
after the evidence was in, the defendant requested the Court to direct a verdict
in its favor and, failing that, to instruct the jury that the plaintiff could not
recover for physical pain. The instructions were refused, the jury found a
verdict for the plaintiff and the judgment was affirmed by the Circuit Court of
Appeals. 239 Fed. 303, 152 C. C. A. 291, followed in Panama R. Co. v. Toppin
(C. C. A.) 250 Fed. 989.
The main question in the case is whether the liability of master for servant
familiar to the common law can be applied to this accident arising in the Canal
Zone. Subordinate to that is the one already indicated, whether there can be a
recovery for physical pain. There is some slight attempt also to argue that the
defendant's negligence was not the immediate cause of the injury, but as that
depended upon the view that the jury might take of the facts and as there was
evidence justifying the verdict, we shall confine ourselves to the two abovementioned questions of law.
3
By the Act of Congress of April 28, 1904, c. 1758, 2, 33 Stat. 429, temporary
powers of government over the Canal Zone were vested in such persons and
were to be exercised in such manner as the President should direct. An
executive order of the President addressed to the Secretary of War on March 8,
1904, directed that the power of the Isthmian Commission should be exer cised
under the Secretary's direction. The order contained this passage, 'The laws of
the land, with which the inhabitants are familiar, and which were in force on
February 26, 1904, will continue in force in the canal zone * * * until altered or
annulled by the said commission'; with power to the Commission to legislate,
subject to approval by the Secretary. This was construed to keep in force the
Civil Code of the Republic of Panama, which was translated into English and
pub lished by the Isthmian Canal Commission in 1905. By the Act of Congress
of August 24, 1912, c. 390, 2, 37 Stat. 560, 561 (Comp. St. 10038):
'All laws, orders, regulations, and ordinances adopted and promulgated in the
Canal Zone by order of the President for the government and sanitation of the
Canal Zone and the construction of the Panama Canal are hereby ratified and
confirmed as valid and binding until Congress shall otherwise provide.'
On these facts it is argued that the defendant's liability is governed by the Civil
Code alone as it would be construed in countries where the civil law prevails
and that so construed the code does not sanction the application of the rule
respondeat superior to the present case.
But there are other facts to be taken into account before a decision can be
reached. On December 5, 1912, acting under the authority of the beforementioned Act of August 24, 1912, 3 (Comp. St. 10039), the President
declared all the land within the limits of the Canal Zone to be necessary for the
construction, etc., of the Panama Canal and directed the Chairman of the
Isthmian Commission to take possession of it, with provisions for the
extinguishment of all adverse claims and titles. It is admitted by the plaintiff in
error that the Canal Zone at the present time is peopled only by the employes of
the Canal, the Panama Railroad, and the steamship lines and oil companies
permitted to do business in the Zone under license. If it be true that the Civil
Code would have been construed to exclude the defendant's liability in the
present case if the Zone had remained within the jurisdiction of Columbia it
does not follow that the liability is no greater as things stand now. The
President's order continuing the law then in force was merely the embodiment
of the rule that a change of sovereignty does not put an end to existing private
law, and the ratification of that order by the Act of August 24, 1912, no more
fastened upon the Zone a specific interpretation of the former Civil Code than
does a statute adopting the common law fasten upon a territory a specific
doctrine of the English Courts. Wear v. Kansas, 245 U. S. 154, 157, 38 Sup. Ct.
55, 62 L. Ed. 214, Ann. Cas. 1918B, 586. Probably the general ratification did
no more than to supply any power that by accident might have been wanting.
Honolulu Rapid Transit & Land Co. v. Wilder, 211 U. S. 137, 142, 29 Sup. Ct.
44, 53 L. Ed. 121. In the matter of personal relations and duties of the kind now
before us the supposed interpretation would not be a law with which the present
'inhabitants are familiar,' in the language of the President's order, but on the
contrary an exotic imposition of a rule opposed to the common understanding
of men. For whatever may be thought of the unqualified principle that a master
must answer for the torts of his servant committed within the scope of his
employment, probably there are few rules of the common law so familiar to all,
educated and uneducated alike.
7
As early as 1910 the Supreme Court of the Canal Zone announced that it would
look to the common law in the construction of the Columbia statutes. Kung
Ching Chong v. Wing Chong, 2 Canal Zone Sup. Ct. Rep. 25, 30, and
following that announcement, in committed within the scope of his
employment, the empresarios of railroads are concerned' the liability of master
for servant would be maintained in the Zone to the same extent as recognized
by the common law. Fitzpatrick v. Panama Railroad Co., 2 Canal Zone Sup. Ct.
Rep. 111, 121, 128. The principle certainly was not overthrown by the Act of
1912. It is not necessary to dwell upon the drift toward the common law
doctrine noticeable in some civil law jurisdictions at least, or to consider how
far we should go if the language of the Civil Code were clearer than it is. It is
enough that the language is not necessarily inconsistent with the common law
rule. By article 2341, in the before-mentioned translation:
'He who shall have been guilty of an offense or fault, which has caused another
damage, is obliged to repair it, without prejudice to the principal penalty which
the law imposes. * * *'
By article 2347:
'Every person is liable not only for his own acts for the purpose of the
indemnity of damage, but also for the acts of those who may be under his care,'
illustrating by the cases of father, tutor, husband, etc.
By article 2349:
10
'Masters shall be responsible for the damage caused by their domestics or

servants, on the occasion of a service rendered by the latter to the former; but
they shall not be responsible if it be proved or appear that on such occasion the
domestics or servants conducted themselves in an improper manner, which the
masters had no means to foresee or prevent by the employment of ordinary care
and the competent authority; in such case all responsibility for the damage shall
fall upon said domestics or servants.'
11
The qualification in this last article may be taken to refer to acts outside the
scope of the employment. It cannot refer to all torts, for that would empty the
first part of meaning. A master must be taken to foresee that sooner or later a
servant driving a motor will be likely to have a collision, which a jury may hold
to have been due to his negligence, whatever care has been used in the
employment of the man.
12
We are satisfied that it would be a sacrifice of substance to form if we should

reverse a decision, the principle of which has been accepted by all the judges
accustomed to deal with the locality, in deference to the possibility that a
different interpretation might have been reached if the Civil Code had
continued to regulate a native population and to be construed by native Courts.
It may be that they would not have distinguished between a negligent act done
in the performance of the master's business and a malicious one in which the
servant went outside of the scope of that for which he was employed. But we
are by no means sure that they would not have decided as we decide. At all
events we are of opinion that the ruling was correct. As we do not rely for our
conclusion upon a Columbia act specially concerning the empresarios of
railroads, we do not discuss a suggestion, made only, it is said, to show that the
act is inapplicable, to the effect that the charter of the Railroad Company did
not grant the power to operate the omnibus line. The company was acting under
the authority and direction of General Goethals and we do not understand that
the defence of ultra vires is set up or could prevail.
13
In view of our conclusion upon the main point but little need be said with
regard to allowing pain to be considered in fixing the damages. It cannot be
said with certainty that the Supreme Court of the Zone was wrong in holding
that under the Civil Code damages ought to be allowed for physical pain.
Fitzpatrick v. Panama Railroad Co., 2 Canal Zone Sup. Ct. Rep. 111, 129, 130;
McKenzie v. McClintic-Marshall Construction Co., 2 Canal Zone Sup. Ct. Rep.
181, 182. Physical pain being a substantial and appreciable part of the wrong
done, allowed for in the customary compensation which the people of the Zone
have been awarded in their native courts, it properly was allowed here.
14
Judgment affirmed.

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249 U.S.

'Masters shall be responsible for the damage caused by their domestics or

We are satisfied that it would be a sacrifice of substance to form if we should

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