McGinnis v. Missouri Pacific Railway Co.

Philips, P. J. — I. The question most pressed upon our consideration on this appeal is, as to the form of the action, and the proper measure of damages. The insistance of apj>ellant is that the petition counts upon the tort of the conductor for a wrongful ejection from the cars, and as the conductor was acting in the line of duty in declining to accept the ticket pursuant to the regulations and instructions from his principal, and the fault, if any, of the defendant, was that of the ticket agent, the petition should have counted upon the ticket agent’s negligence, in which case, the only damage recoverable would be the price of the fare collected from St. Louis to-Jefferson City, there being no evidence of other loss or injury, and as that sum was tendered him before institution of suit, the plaintiff would not even be entitled to recover costs. — 407 — If the premises assumed were correct, the rulings of our supreme court would, perhaps, sustain this contention. Under our system of practice there ought to be no controversy as to the character of this action. The formal distinctions, which prevailed at common law between actions, are abolished. The declaration is required only to stride, in plain and concise terms, the substantive facts constituting the cause of action. To determine the character of the action regard is had to the substance of the whole statement, rather than to the form of expression. Eelief is administered according to the substantial facts. The contract with the agent at Jefferson City is set out in the petition as matter of inducement, as the foundation of plaintiff’s asserted right to be on defendant’s train, from which, as matter of law, as applied to the' instance of a common carrier of passengers for hire, springs the obligation of defendant to safely and properly carry the plaintiff, and to treat him, while on its train, with respect and kindness. The gravamen of the complaint is that defendant failed in its duty in this respect by treating him with disrespect, abuse and insult, and wrongfully ejecting him, and refusing him passage on his ticket. Manifestly enough, therefore, the matters at issue were, was there such contract evidenced by the ticket, under which plaintiff took passage on defendant’s train % second, did defendant, in any of the given particulars, violate its duty to the defendant, to his injury % and, third, what is the proper measure of damages for the wrong done % • II. That defendant did sell the ticket to plaintiff, in the form as presented by him to the conductor, is not disputed. If there was any defect in it, it was not the fault of the plaintiff. He paid the money as required, and in taking the ticket he had a right to rely upon the agent to give him a ticket expressive of the contract, in so far as it might evidence his right to be carried within — 408 — the time contracted for. The New Orleans Ry. Co. v. Hurst, 36 Miss. 660. The agent who sold the ticket was, pro hae nice, the corporation in performing the act. And the corporation, this legal entity, was present, aboard of the train, in the person of the conductor. It was the corporation that sold the ticket, and it was the same corporation putting plaintiff off of its train because it hadhnade the mistake, if any, which gave apparent color to the right of ejection. As said by Ch. J. Ryan, in Craker v. Ry. Co. (36 Wis. 674): “ Quoad hoe, this corporation and this passenger, the corporation was present on this train to keep and to care for her (the passenger) represented by the officers of the train, who possessed, pro hac nice, the whole power and authority, and were the living embodiment of the ideal entity which made the contract, was bound to keep it, and is appellant here to contend that it has no responsibility for the flagrant violation of the contract, which the respondent paid it to make and to keep, by its sole present representative appointed to keep it on its behalf. Like the English crown, it lays its sins upon its servants, and claims that it can do no wrong. We cannot bend down the law to such convenience. The appellant tortiously broke this contract as surely as it made it; committed this tort as surely as it made the contract.'’ III. It may be conceded, for the purposes of this case, that the regulations of the company, and its instructions to the conductor, justified him, if the ticket came within the terms of the regulations, in rejecting it and demanding the fare, yet that fact did not, and ought not, to do away with the contract, nor absolve defendant from its liability for the violation of any of the obligations arising thereon. Palmer v. Ry. Co., 3 S. C. (n. s.) 580; Malecek v. T. G. & L. Ry. Co., 57 Mo. 22; The N. O., etc., Ry. Co. v. Hurst, supra. It may be further conceded to appellant, on the authority of Trigg v. Ry. Co. (74 Mo. 147), and Marshall — 409 — v. Ry. Co. (78 Mo. 610), that if the regulation existed, and the ticket presented the appearance of having been altered in any material respect, and the conductor honestly believed it came within the- scope of his instructions, he was justifiable in rejecting it, and ejecting plaintiff on his refusal to pay the customary fare; yet, plaintiff would be entitled to recover in this action, provided the other facts alleged in the petition existed. This brings us to the real practical question involved in this case. The doctrine is now well settled, I take it, that while the right may be accorded to such common carriers to make all needful rules and regulations, which are reasonable, for the guidance of its agents in managing and conducting its trains, with power of expulsion therefrom of any passenger who wilfully violates such rules, yet this right must be exercised always, if not in subordination to, in connection with other rights secured to the passenger who is entitled by his contract to be on the train as a passenger. Among these recognized rights of the passenger, is not only to be safely and promptly carried to his destination, but to be treated by the servants and agents of the carrier with kindness, respect, courtesy, and due consideration, and to be protected against insult, indignity and abuse from both the agents and other passengers. This is too well established to require citation of authorities. Story, J., in Chamberlain et al. v. Chandler (3 Mason, 246), forcibly expresses this rule in respect of common carriers by water, which differs little in the principie from that of carriers by rail: “ It is a stipulation, not for toleration merely, but for respectful treatment, for that decency of demeanor, which constitutes the charm of sqcial life, for that attention, which mitigates evils without reluctance, and that promptitude which administers aid to distress. * * * It is intimated that all these acts, though wrong in morals, are yet acts which the law does not punish; that if the person is untouched, if the acts do not amount to an assault .and battery, they are not to be redressed. The law looks — 410 — on them as unworthy of its cognizance. The master is at liberty to inflict the most severe mental sufferings, and yet, if he withholds a blow, the victim may be crushed by his unkindness. He commits nothing within the reach of civil jurisprudence. My opinion is that the law involves no such absurdity. It is rational and just. It gives compensation for mental sufferings occasioned by acts of wanton injustice, equally whether they operate’ by way of direct, or of consequential injuries. In each case the contract of the passengers for the voyage is in substance violated, and the wrong is to be redressed as a cause of damage.” If the law be that the passenger is entitled, even while being dealt with by the agent pursuant to regulations, to respectful and courteous treatment, and protection against insult and indignity, of what avail is this right to him, unless the law, in some apt, prompt and vigorous mode, compels the observance of it % jOf what avail is the right, if, as contended for, the only penalty be compensation for actual, tangible loss % The only rational answer the law can make to such inq uiry must be an appeal to the wise, temperate discretion of juries, under judicial guidance, to award to the injured, the outraged passenger, a measure of damages that will compensate somewhat for the wounded feelings, and secure the public against a repetition of the wrong. IV. In looking at the evidence of the plaintiff, what do we find disclosed by this record % When the conductor looked at the ticket, if it presented evidence of alteration, what more was required of him, by a proper sense-of fealty to his employer and of consideration for the-rights and feelings of the plaintiff, than to inform him that his ticket had the appearance of being altered, and that as his instructions from his master were not to receive such a ticket, he would have to request the payment of fare ? Instead of this genteel course, at the very outset, with “gruffness of manner and roughness of speech,” he announced unhesitatingly that the ticket had been — 411 — tampered with and the date changed. The language, to say nothing of the manner of utterance, imputed fraud, if not forgery, without, sending along with it the antidote that he did not intend to impute the fraud to plaintiff. The utterance was well calculated to attract to the passenger the attention of other passengers, and to create-the impression that the conductor had caught the plaintiff in some act of irregularity. Not content with this, after interviewing the reputed “officer of the company,” he returned to .his offensive attack, and said the ticket is-forged or tampered with, and if plaintiff did not alter it somebody else did. This was a most “ unmanly innuendo,” wholly unwarranted by the circumstances, and grossly offensive and insulting to any gentleman of ordinary sensibility and pride. Comment is made by counsel for appellant on the-conduct of the plaintiff, and his statement on cross examination that he was “high-strung.” While the law indulges not in sentiment, nor promotes an overwrought and senseless spirit of chivalry, it does have regard to-the nobler sensibilities of people of refinement, anda high sensé of honor. As said by Tapley, J., in Goddard v. Ry. Co. (57 Me. 229): “A man’s feelings, self-respect, and pride of character are as much under the protection of the law in such case as his property.” To a man of proper sensibility and self-respect it is-always humiliating, in public presence, to be arraigned by a conductor about his right of passage — too many of whom, from an exaggerated notion of authority and an overweening, if not morbid, desire to display it, have an offensive manner on such occasions. But to have a conductor, as was done on this occasion, impute fraud to-your ticket, coupled with a suggestion that perhaps you are not free from its perpetration, is insufferably galling. Such a thrust hurts more than a mere physical blow. Words often have poison in them. They burn their hideous image into the soul. And the law, in such relations, allows that the spirit of a good man may be as deeply — 412 — wounded as the body. The proffered return of the small .sum paid for the trip from St. Louis to Jefferson City was no antidote. And while the company itself, in a certain sense, may be deemed no party to the misconduct of its conductor, it has since done nothing to repair the wrong. So far from reprimanding or disciplining the conductor it has approved his conduct by promoting him in its service. These common carriers owe it to themselves and the public to retain in their employ conductors of prudence and of ordinary politeness and courtesy. Generally these conductors are gentlemen. By making examples of such as violate the just and reasonable rights •of passengers the number of worthy and efficient agents will increase; and thereby a better feeling would be established between the carrier and the people. If the jury credited the statement of the plaintiff, we cannot say the amount of damages awarded was excessive. This case is not like those of Trigg v. Ry. Co., and Marshall v. Ry. Co., supra. There was no evidence of indignity and insult in them. Henry, J., in the former case, observed: “Every passenger * * * has a right to expect and receive ordinary civility from all the servants of a railroad company, * * * and if there is any deviation from this standard, it should be on the side of courtesy; and if we were •of opinion in this case, that the language or manner of the conductor, connected with the negligence complained of, bordered upon indignity or insult, we would not hesitate to let the verdict stand.” In the Marshall case the conductor was guilty of no rudeness nor insult, but seemed to have done what he •could, in the performance of his duty, to both the employer and the passenger, to make her comfortable, and to tone down any apparent harshness in obeying the regulations of the road. Y. If the plaintiff himself, in this case, was guilty of any misconduct provocative of the language of the — 413 — conductor, it is one among all the circumstances to be considered by the jury in estimating the damages. VI. I am of opinion that the court erred in excluding the proffered evidence respecting the regulations of the company, and the instruction to the conductor not to receive such tickets. Logan v. Ry. Co., 77 Mo. 663. It was competent for the defendant to show the necessity and reasonableness of such regulation, if it existed. And if designed to protect the company against “scalpers” and other impostors, as claimed, it was a reasonable regulation. If it authorized the conductor to take up a ticket like the one in question, and he acted in good faith, without harshness, indignity and insult toward the plaintiff, the plaintiff ought not to recover in this action, on the authority of the cases, supra. As the rejected evidence, in any event, bore upon the question of the conductor’ s good faith and malice, it was competent. It would not defeat a recovery, however, if the facts exist as to the misconduct of the conductor above commented upon. VII. Objection is made to certain language of the trial judge before the jury, - to the effect that railroads should employ gentlemen as conductors. This observation was made in overruling objection to some question. While the observation announced a legal truth, and may not have prejudiced the jury, it would be the better practice for trial judges to abstain from such observations, as they are calculated to influence the jury, especially when coming from a judge in whose wisdom and experience the jury would likely have great confidence. VIII. The instructions in this case are unnecessarily numerous. The issues involved are few, and ought to be presented to the jury in a few direct instructions. Without reviewing them in detail, we will consider such as are important, and for the guidance of the court in a further trial. The first instruction, after setting out certain facts essential to be found to entitle the plaintiff to recover, employs the following language: “and directed the — 414 — plaintiff! to leave the train in the manner charged in the petition.” It is the well settled rule of practice that an instruction ought not thus to refer the jury.to the pleadings. It is the duty of the court to tell the jury what are the essential facts to be found under the pleadings. Instead of this instruction the jury should be directed: that if plaintiff did purchase the ticket in question from defendant’s station agent at Jefferson City, it entitled him to be carried therefrom to St. Louis and return, not later than the fifth day of July, 1883 ; and if the conductor refused to accept the same from plaintiff on the return trip, on the ground that it had the appearance of having been altered; and although the jury should find that the ticket bore upon its face evidence of such fact, .and that the conductor was authorized by the rules and regulations of the defendant to refuse such ticket, and to eject the plaintiff from its cars on refusal to pay the customary fare, yet if the jury further believe from the evidence that in dealing with the plaintiff in respect of such ticket the conductor used discourteous, offensive, and insulting language te the plaintiff, his duty to demand the fare is no justification for such conduct, and the jury .should find for the plaintiff. The second instruction should not be repeated, as it In effect told the jury, that the act of ejecting plaintiff from the car “ is a circumstance tending to show wilfulness and malice on the part of the conductor.” This would or not be so according to the fact whether the expulsion was because of plaintiff’s refusal to pay the fare when the conductor was demanding it pursuant to a reasonable regulation, without any attending circumstances of insult, rudeness and indignity. The third instruction is unobjectionable. While some of the other instructions contain the law, they are more or le^o conceived upon an improper issue, and should be reformed. In respect of the measure of damages, there is too much comment on evidence, and mere discussion. The jury should be told simply: that' if they find the issues — 415 — for the plaintiff, in estimating his damages, they are not limited to the mere question of any actual loss sustained by plaintiff by reason of his expulsion from the ■cars, and the payment of fare; but if the jury believe from the evidence that the plaintiff was treated with indignity and insult by the conductor the defendant is liable to answer therefor in damages, not exceeding the sum of five thousand dollars, as a compensation for the injury. And in estimating the damages the jury may take into -consideration the wounded feelings and mental suffering, if any,. of the plaintiff caused by such indignity and insult, being governed by a sound discretion and good judgment, and having regard to all the attendant facts .and circumstances in evidence. Craker v. Ry. Co., supra, 660-1; Randolph v. Ry. Co., 18 Mo. App. 609. The third instruction asked by the defendant might he given, provided, the court, on inspecting the regulation in question, can say as a matter of law that it is reasonable and applicable to the facts of this case, as indicated in this opinion. The other instructions asked by defendant and refused by the court were properly rejected. They ignored entirely the issue as to the rude and offensive conduct of the conductor, or otherwise partially presented the real issue. For the reasons given in the opinion, respecting the ■exclusion of evidence and the giving of instructions, the judgment of the circuit court is reversed and the cause remanded. Ellison and Hall, JJ., concur in the result.