have every payment made by him to the lender credited on his loan. We see no tenable ground for such distinction. The stock subscriptions, and loans, as we have seen, are separate transactions, and it is only as to the latter that the question of usury arises. The subscriptions for the stock are not tainted with usury, and there is no reason why the borrower who has paid usury upon his loan should be allowed to recoup it by receiving back the payments made on his stock. Each class must stand upon its own basis, and the shareholders' rights as between themselves must be adjusted on the status of their shares, not affected by any questions of usury involved in the loans. The stockholders must bear the losses made in the business between them, but, if the shareholders whose loans are tainted with usury are allowed credit for their payments on stock, they will escape their share of such losses, and the same will be thrown on the nonborrowing stockholders. vestments in stock, whether the shareholder be a borrower or not. These payments have no direct relation to loans made to members. It is true that in solvent going concerns, under certain contingencies, as in cases of withdrawal or maturity of the scheme, the borrower has the right to have the amounts due to him upon his stock credited upon his indebtedness to the association. But this payment of dues upon stock is not "ipso facto" a payment on his loan. It is more in the nature of a set-off or adjustment of cross demands and claims. If the borrower prefer, he can pay his loan in money, and the association cannot force him to credit the amount of his stock payments upon his indebtedness to the association. The relations of borrower and stockholder are separate and distinct. Endlich, Bldg. Asso. 2d ed. §§ 448, 477, 478. Mr. Endlich says: "It has therefore be come a well-recognized doctrine that the payments of dues upon stock are not payments to the mortgage debt, and do not ipso facto work an extinguishment (pro tanto) of so much The next question arising is as to the right of the mortgage, and hence that they are not of certain stockholders who paid dues in adto be regarded as partial payments, and that vance of their maturity. These stockholdtherefore the statutory rule for computing in-ers are not borrowers, but they claim that terest on partial payments is inapplicable to having paid dues in advance, under an agreethem." Id. § 477. Again, it is said: 'It ment with the association that interest should may be safely stated that the doctrine has be allowed upon such advance payments until forced its own recognition upon the courts of absorbed by dues, they should be treated as nearly every state in the Union, as well as creditors of the association, and the amounts England. It may, it is true, not have found, advanced as loans to it be repaid, with interupon all occasions, express and explicit judi-est. The charter forbids the company to recial sanction. In theory, it may have been persistently denied, yet in its results it has in some form or other been every where applied, and, in the condemnation of the outrageous consequences flowing from the opposite doctrine, it has at some time or other been everywhere confirmed." Id. § 123; Rogers v. Hargo, 92 Tenn. 35: Pioneer Sav. & L. Co. v. Cannon, 96 Tenn. 599, 33 L. R. A. 112. The rule in regard to the distribution of the assets of insolvent associations, in so far as it relates to borrowing stockholders, is laid down in Rogers v. Hargo, supra, to be that the borrowing stockholder will be charged with the money actually received by him, with interest from date of its receipt. He is credited with all payments of interest and premiums as of dates when made. He is not allowed credit for amounts paid as dues on his stock. After all liabilities of the company are paid, the remaining fund is distributed pro rata among stockholders, whether borrowers or not, upon the basis of the amounts paid by them, respectively, as dues upon the stock. This is in accord with the rule laid down in Strohen v. Franklin Sav. Fund & L. Asso. 115 Pa. 273, 279, and as now held in Endlich on Building Associations, 2d ed. §§ 514, 515, though form erly the same author held to the opposite view. See also Towle v. American Bidg., L. & I. Soc. 61 Fed. Rep. 446. It is insisted, and very ably urged, that while this is the correct rule in winding up associations which are merely insolvent, and which have conducted a legitimate business, a different rule must be adopted when the business of the association has been conducted upon an illegal and usurious basis, and that in such cases the borrower has the right to tain a monthly payment exceeding two dollars per share, but does not in express terms prohibit it from allowing stockholders to pay in. advance if they so desire. But here the advances were made under an agreement that the parties making the advances should be allowed interest upon the amounts advanced. It was in some respects the same thing as if the association, in order to accommodate its borrowers, had gone to some bank or outside person, and borrowed money to put into the association. Such a proceeding is not warranted by the charter or the proper scope and scheme of a building and loan association. They should not be borrowers of money, but only lenders for the proper purposes of their creation. To allow the amounts advanced tobe paid back would be to sanction such proceedings as legitimate loans, to convert capital into loans, and to create preferred stock, in order to work out supposed equities. We think the proper holding upon this matter is to treat the advances as payments upon stock, and not as loans to the company; and this is, in effect, carrying out the intention of the parties, which was to pay up their stock in advance, and, by anticipation of its maturity. receive a discount by so doing. The next question presented is as to the right of a certain stockholder (Armstrong), whosestock was declared matured in December, 1894, but who had failed to draw anything from the association. It is insisted that he should be paid the par value of the stock, as a creditor of the association, and not be required to share as a stockholder. The court of chancery ap peals held: "In sound reason and legal analogy, the positions of the members holding stock in a series declared through mistake to be 'matured, when in point of fact it had not matured, is, in respect to the assets of the insolvent corporation, the same, in effect and as to results, as that of members giving notice. They are not entitled to be paid in preference to other stockholders. They will prorate with all other stockholders in the assets of the association after the expenses of the administration of its affairs are paid.' The court of chancery appeals found that this series of stock had been declared mature by mistake, and that the real value of petitioner's share was not $1,000 but only $792.80; and the contention now is that he should be paid, if not the par value ($1,000) of his stock, its real value, of $792.80. If this contest were alone with the association as a solvent, going concern, this contention might be sustained, perhaps, upon the theory that the association would be estopped to set up its mistake in declaring the stock paid up, and in such case would be required to pay the stock holder as it had agreed; especially in consideration of the fact that he was no longer a member after his stock matured, and had no right to vote or to withdraw on notice, secured by the by-laws to unmatured, but not to matured, stockholders. This latter was a valuable right, in the light of the fact that all stockholders withdrawing before the bill was filed were paid in full. But, in view of the insolvency of the association, the rights of the different shareholders as among themselves, and not simply as against the association, must be considered; and the case presents itself as one purely arising out of mistake of facts and errors in the conduct of the business, and, as a matter of fact, Mr. Armstrong's stock has not matured, and he does not stand in the attitude of a creditor, or of a stockholder holding matured stock, but of a stockholder whose stock is not yet mature, and upon that theory his rights in a contest with his fellow stockholders must be adjusted and, settled as a stockholder. This applies to all shareholders who stand in the same relation and occupy the same status as does Mr. Armstrong. It follows that the decree of the Court of Chancery Appeals must be reversed and modified in the particulars indicated, and in all other respects it is affirmed. WISCONSIN SUPREME COURT. 1. What a conductor said after allowing a passenger to get back on the car because he had become convinced that he had paid his fare, although he had put the passenger off because he thought he had not paid the fare, is a part of the res gesta of the ejection. complaint in this action is not ratification, but at most is evidence of ratification. Milwaukee & M. R. Co. v. Finney, 10 Wis. 388: Craker v. Chicago & N. W. R. Co.36 Wis. 675, 17 Am. Rep. 504; Bass v. Chicago & N. W. R. Co. 42 Wis. 667, 24 Am. Rep. 437; Eviston v. Cramer, 57 Wis. 578; Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 37 L. ed. 97: Dillingham v. Anthony, 73 Tex. 47, 3 L. R. A. 634. The fact that a railroad conductor ejecting a passenger was not legally justified in refus ing to allow the passenger to ride on his ticket 2. An instruction that plaintiff is "en- will not justify the awarding of exemplary titled" to exemplary or punitory'dam-damages where the conductor was actuated by ages if the injury was malicious is error, since malice, however mistaken as to the legal rights such damages cannot be claimed as matter of of the passenger and as to his own duties in law, but only in the discretion of the jurv. the premises. 3. Exemplary damages cannot be recovered from a carrier for the malicious act of the conductor in ejecting a passenger, unless his act is either authorized or ratified by the carrier. (November 4, 1896.) Hoffman v. Northern P. R. Co. 45 Minn. 53; Pine v. St. Paul City R. Co. 50 Minn. 144, 16 L. R. A. 347. Mr. Yate H. V. Gard, for respondent: The language of the conductor after plaintiff had returned to the car was pleaded as part of the transaction, and taken in connection with APPEAL by defendant from a judgment of what had just preceded it would seem clear the Superior Court for Douglas County in favor of plaintiff in an action brought to recover damages for plaintiff's alleged wrongful ejection from defendant's car. Reversed. The facts are stated in the opinion. Messrs. Ross, Dywer, & Hanitch, for ap pellant: Keeping the conductor in defendant's employ after the service of the summons and NOTE. On the question how near the main transaction declarations must be in order to constitute a part of the res gesta, see note to Ohio & M. R. Co. v. Stein (Ind.) 19 L. R. A. 733. that it is part of the res gesta. Bass v. Chicago & N. W. R. Co. 42 Wis. 671, 24 Am. Rep. 437. If the defendant corporation ratified the act of the conductor it thereby became liable in exemplary damages. The ratification of a tort may be either with full knowledge of the facts or with the purpose of the principal without inquiry to take the consequences upon himself. Cooley, Torts, 128. The report of the conductor shows that plaintiff was wrongfully expelled, and this is all that is necessary to charge the corpora- | Wis. 674. The case is clearly distinguishable tion. Bass v. Chicago & N. W. R. Co. 42 Wis. 669, 24 Am. Rep. 437. The defendant in its answer approves, sanc tions, and adopts every contention adverse to plaintiff that the conductor contended for against him. Such an answer under such cir cumstances amounts to a most forcible ratification of the conductor's acts. from Grisim v. Milwaukee City R. Co. 84 Wis. Taylor v. Ryan, 15 Neb. 573; Henderson v. Fox, 83 Ga. 233; Bennett v. Matthews, 64 Barb.punitory" damages; that is, something dif 410; Klewin v. Bauman, 53 Wis. 244. The corporation is held liable in exemplary damages for the acts of its agents and servants within the scope of their employment in all cases where such damages would be awarded against the individual if acting for himself. Thomp. Corp. § 6388. If the prompt dismissal of the offending servant raises a presumption against ratification, and it certainly does, then the retention must raise the presumption of ratification. Bass v. Chicago & N. W. R. Co 42 Wis.675, 24 Am. Rep. 437; Patry v. Chicago, St. P. & O. R. Co.77 Wis. 218; Perkins v. Missouri, K. & T. R. Co. 55 Mo. 201: Cleghorn v. New York C. & H. R. R. Co. 56 N. Y. 44, 15 Am. Rep. 375, Goddard v. Grand Trunk R. Co. 57 Me. 202, 2 Am. Rep. 39. 2. Error is assigned because the trial court, after charging the jury to the effect that the plaintiff was entitled to a verdict for compensatory damages for all injuries, including injuries to his feelings, further charged them to the effect that, if the conductor maliciously put the plaintiff off the car, then he was "also entitled" to what are called "exemplary" or ferent from, and over and above, the compensatory damages which the law allowed them to impose in such a case, in the way of warning and punishment, and as a public example. There is no claim that at the time in question the conductor was not acting within the scope of his employment, nor that the plaintiff had not paid his fare. The plaintiff was therefore entitled to compensatory damages. Whatever may be the rule in other states, it is settled in this state that, in actions for personal torts. such compensatory damages include, not merely the plaintiff's pecuniary loss, but also compensation for mental suffering; and that, in awarding such damages in such a case, no distinction is to be made between other forms of mental suffering and that which consists in a sense of wrong or insult. Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Rep. 504; Fenelon v. Butts, 53 Wis. 344; Grace v. Dempsey 75 Wis. 323; Reinke v. Bentley, 90 Wis. 459. The This is an action to recover damages by rea- question here presented is whether the plaintiff son of the defendant's having without cause, was also entitled," as a matter of law, to "exunlawfully, wilfully, maliciously, and with emplary or punitory" damages, in case the jury force and violence ejected and expelled the found that the conductor maliciously ejected plaintiff from one of its railway passenger cars, the plaintiff. In Day v. Woodworth, 54 U. S. upon which he was rightfully riding after hav- 13 How. 371, 14 L. ed. 185, Mr. Justice Grier, ing paid his fare. The defendant answered, by speaking for the court, said "that, in actions way of admissions, denials, and allegations, to of trespass and all actions on the case for torts, the effect that, if the plaintiff had paid his fare, a jury may inflict what are called exemplary, the conductor of the car had forgotten the fact, punitive, or vindictive damages upon a defendand so ejected the plaintiff only after he hadant, having in view the enormity of his offense, refused to inform the conductor whether he had paid his fare or not. At the close of the trial, the jury returned a verdict to the effect that they found for the plaintiff, and assessed his damages at $250, of which sum $200 was so awarded as exemplary damages. From the judgment in favor of the plaintiff for the full amount stated, and costs, the defendant brings this appeal. Cassoday, Ch. J., delivered the opinion of the court: 1. We perceive no error in allowing the plaintiff to testify as to the conversation between himself and the conductor in respect to paying his fare while riding on the car, and at the time and immediately after he was ejected, and just after he got on the car again. The controversy was as to whether the plaintiff had or had not paid his fare. He was put off because the conductor claimed he had not paid his fare. He was allowed to get on the car again because the conductor became convinced that he had paid his fare. The res gesta commenced when he paid his fare, and did not terminate until he returned to the car, and was allowed, by the conductor, to ride peaceably. Within the authorities, it included what the conductor said just after the plaintiff stepped back into the car. Hooker v. Chicago, M. & St. P. R. Co. 76 Wis. 542; Hermes v. Chicago N. R. Co. 80 Wis. 592; Reed v. Madison, 85 rather than the measure of compensation to the 129; Stilson v. Gibbs, 53 Mich. 280; Wilson v. Bowen, 64 Mich. 133. In the last Illinois case cited, an instruction substantially like the one in the case at bar was held bad. In one of the Kentucky cases cited, an instruction that the jury "should" give punitive damages if they found the neglect wilful was held error; and, in the other Kentucky case cited, it was held error to instruct in such a case that the jury "ought" to award punitive damages. It is true that an instruction to the effect that the jury "ought" to give exemplary damages in such a case was sustained by this court in Hooker v. Newton, 24 Wis. 292; but the case is not in harmony with the best considered cases, nor with the weight of authority. Mr. Thompson, in his excellent work, after stating that "the jury may, if they think proper, give damages by way of punishment," says: "It may be stated that, in cases in which such damages may be given, whether they will be given or not, is a question within the discretion of the jury. Many judgments have been reversed because the jury were allowed to give such damages; but no case is recollected where a judgment was reversed because such damages were not given, though possibly such cases may be met with in the recent books of reports." 2 Thomp. Trials, § 2065. The reason for the rule, as indicated in some of the cases cited, is that the primary object of such action is to fairly compensate the plaintiff for the wrong he has suffered and the injury he has sustained, and that he is not entitled, as a matter of legal right, to anything more. Accord ingly, some courts of high standing refuse to allow punitory damages in cases similar to this. Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Rep. 504; Bass v. Chicago & N. W. R. Co. 36 Wis. 450, 17 Am. Rep. 495, 39 Wis. 636, and 42 Wis. 654, 24 Am. Rep. 437; Eviston v. Cramer, 57 Wis. 570; Patry v. Chicago, St. P. M. & O. R. Co. 77 Wis. 218; Moce v. Reed, 89 Wis. 440; Hagan v. Providence & W. R. Co. 3 R. I. 88, 62 Am. Dec. 377. On the same day that the plaintiff was so ejected from the car. September 12, 1894, the conductor reported his version of the transaction to the defendant; but that report, while it was not expressly excluded on the objection of the plaintiff, was allowed in evidence simply as showing that the defendant had no knowledge of wrong on the part of the conductor. The only evidence of notice to the defendant that the conduct of the conductor was malicious is the allegations contained in the complaint served September 25, 1894. There is nothing to indicate that the complaint was read to the jury, nor that they knew its contents, and the trial court stated, at the time the evidence was excluded, that there was not any evidence in the case of ratification. It does appear that the conductor was in the employ of the defendant from July 28, 1894, to December 18, 1894, and then left of his own accord. Such retention of the conductor in the employment of the defendant, with knowledge that such conduct of the conductor was wilful and malicious, would have been evidence tending to prove ratification. The decisions of this court cited are to that effect. See also cases cited in the notes to 62 Am. Dec. 387; Cleghorn v. New York C. & II. R. R. Co. 56 N. Y. 47, 15 Am. Rep. 375. In taking the question of such ratification from the jury, the court necessarily held that, if the 3. There is another matter calling for con- jury found that the conduct of the conductor sideration. The charge left the question of ex- was malicious, then the defendant was conemplary damages to turn wholly upon the ques-clusively bound to know the same, because it tion whether the conduct of the conductor was was so alleged in the complaint. This, we malicious, the same as though the action had think, was error. been directly against him. This court has repeatedly held, in effect, that such exemplary damages can only be recovered against the principal for the wrongful and malicious act of the agent, when such act is either authorized or ratified by the principal. Craker v. ¡ damages. The judgment of the Superior Court for Douglas County is reversed, and the cause is remanded for a new trial, or, at the option of the plaintiff, for judgment in his favor on that part of the verdict assessing compensatory Statement by Kinne, J.: as to avoid injury, if possible,-not that he must use more than ordinary care but that the circumstance of knowledge changes the application of this ordinary test. Hanlon v. Keokuk, 7 Iowa, 488, 74 Am. Dec. 276. Plaintiff should be held chargeable with knowledge of the existing conditions, and, the night being as dark as she testifies, she did not do as an ordinarily prudent person would do under the circumstances, when she might have gone another route equally convenient. Fulliam v. Muscatine, 70 Iowa, 436; Parkhill v. Brighton, 61 Iowa, 103; McGinty v. Keokuk, 66 Iowa, 725; Hartman v. Muscatine, 70 Iowa, 511; Plymouth v. Milner, 117 Ind. 324; Dale v. Webster County, 76 Iowa, 370. The defect, if any existed, lay in the absence or want of a light at the time of the accident. Plaintiff certainly had as much knowledge of such defect as defendant, and should have used ordinary care to avoid the danger. Achtenhagen v. Watertown, 18 Wis. 331, 86 Am. Dec. 769; Munger v. Marshalltown, 56 Iowa, 216; Cressy v. Postville, 59 Iowa, 62; O'Laughlin v. Dubuque, 42 Iowa, 541; Alline v. Le Mars, 71 Iowa, 654; Ely v. Des Moines, 86 Iowa, 55, 17 L. R. A. 124. Defendant was not negligent with reference to maintaining the crossing in a reasonably safe condition. Plaintiff had the whole width of a crossing perfectly safe in itself and free from defects. She must know at her peril whether she is within the limits of the crossing. O'Laughlin v. Dubuque, 42 Iowa, 541; Alline v. Le Mars, 71 Iowa, 654; Macomber v. Taunton, 100 Mass. 255; Hubbell v. Yonkers, 104 N. Y. 434; Damon v. Boston, 149 Mass. 147: Richardson v. Boston, 156 Mass. 145; Goodin v. Des Moines, 55 Iowa, 67. Negligence cannot in any degree be predicated on the narrowness of the crossing. Detroit v. Beckman, 34 Mich. 125, 22 Am. Rep. 507; Lansing v. Toolan, 37 Mich. 152. Defendant was not negligent in respect to the existence of the excavation, and is not liable to plaintiff on account thereof. The plaintiff claims that on the evening of October 20, 1891, in company with another lady, she undertook to pass over Second street, in the town of Manson, Iowa, on the sidewalk crossing the same at a point near the northwest corner of the crossing of Main street and Second street, and that, without negligence on her part, and without knowledge of the existence of an excavation, and of its close proximity to said crosswalk, she fell into an excavation, was violently thrown to the bottom of it, and severely injured. She alleges that she is permanently disabled by reason of said injuries, and asks damages in the sum of $4,000. She alleges that said crossing was dangerous for pedestrians to travel over by reason of a deep excavation and pitfall made in the earth, by defendant, at both sides of said crossing. This excavation was about 7 feet deep and extended close up to the edge of the crossing, said crossing being but 3 feet wide. That on said October 20, 1891, and long prior thereto, the defendant had negligently and carelessly permitted said excavation to exist, and said crossing to remain in said unsafe and dangerous condition, and had failed and neglected to Rusch v. Davenport, 6 Iowa, 443: Wilson v. construct or place a barrier or hand rail to pre- Jefferson County, 13 Iowa, 181; Mower v. Leivent persons passing over said walk from fall-cester, 9 Mass. 248, 6 Am. Dec. 63; Bates v. ing into said excavation, and failed to place any Rutland, 62 Vt. 178, 9 L. R. A. 363; Damon warning, light, or signal to indicate to or warn v. Boston, 149 Mass. 147. persons passing over said crossing of the existence of said excavation. It appears that the town, for the purpose of laying its water mains, had excavated a ditch extending along Second street and across Main street. A water pipe had been laid in the ditch, but the excavation had not been filled prior to the accident. The defendant admitted its incorporation, and that the plaintiff's claim had not been paid, and denied all other allegations in the petition. The cause was tried to a jury, and a verdict returned for the sum of $2,250, on which judgment was entered. The defendant appeals. Mr. E. A. Walton, for appellant: Although one has a right to use a defective crossing knowing it to be defective, ist, having that knowledge, use it so 1. If defendant is liable it is because of a breach of a statutory duty. There was no statutory duty except to maintain its sidewalks and crosswalks in a reasonably safe condition. The liability being created by statute, the rule is that only those using the streets in the ordinary mode for travel can recover damages. Taylor v. Peckham, 8 R. I. 349, 5 Am. Rep. 578, 91 Am. Dec. 235; Mc Arthur v. Saginaw, 58 Mich. 357, 55 Am. Rep. 687; Goeltz v. Ashland, 75 Wis. 642; Agnew v. Corunna, 55 Mich. 428. A sufficient time had not elapsed between the placing of the light and the time of the accident, to charge defendant with constructive notice. Broburg v. Des Moines, 63 Iowa, 523, 50 Am. Rep. 756; Thiessen v. Belle Plaine, 81 Iowa, 118; Klatt v. Milwaukee, 53 Wis. 196, 40 Am. |