Bledsoe v. West

ROBERTSON, P. J. — This action, against the receivers of the St. Louis and San Francisco Railroad Company, was brought to recover actual and punitive damages for an assault made upon plaintiff by defendants ’ ticket agent at Caruthersville. This appeal is by defendants from the result of the second trial in which a judgment was obtained by plaintiff for $1000 actual and $500 punitive damages. The first trial resulted in a judgment for $500 actual and $500 prmitive damages. Both trials were to a jury and the • court granted a new trial as to the first verdict on the ground that it was excessive. Whether the actual or punitive damages, or both, were considered excessive is not disclosed. The same judge who sustained the motion for ■a new trial as to the first verdict passed on and overruled a similar motion as to the verdict here involved. The plaintiff, a small boy, sixteen years of age went to the defendants’ depot in Caruthersville ten or fifteen minutes before train time for the purpose of taking passage on defendants’ train to Holland. He went to the ticket window, called for and was delivered a ticket to that point by the man in charge. Plaintiff gave the agent fifty cents, the fare being thirty-eight cents. Plaintiff stood there a short time and remarked to the agent: “Say, partner, you forgot to give me my change.” The agent replied: “I haven’t got no pennies.” The plaintiff waited a short time and then said: “ Well, give me my dime then. ’ ’ The agent then retorted: “You heard what I said’’ and threw a metal stamp, used for stamping tickets, at plaintiff striking [465] him on the head. The agent then picked np an inkstand as if to throw that, bnt on the suggestion of some one desisted. The testimony of the defendants’ witnesses was to the effect that plaintiff used abusive language and thereby provoked the assault, but that question was submitted to the jury and found adversely to defendants.' The plaintiff pleads the facts as above stated and alleges that at said time the agent was acting within the line and scope of his employment. The errors assigned are refusal to direct a verdict for defendant; giving and refusing instructions and excessive verdict. It is said that the peremptory instruction should have been given (a) because the agent in making the assault “was not within the scope of his employment, and did not pertain to his particular duties under the employment,” and (b) the difficulty was personal to the agent and was brought on by plaintiff’s own misconduct. It was the duty of the agent to sell tickets, collect the price therefor and return change received in so doing. In these transactions, and in baffling the plaintiff in his effort to secure his change, he was acting within the scope of his employment, and if as an incident thereto and a result thereof he committed a tort the master is liable. [Shamp v. Lambert, 142 Mo. App. 567, 574, 121 S. W. 770; Bouillon v. Laclede Gas Company, 148 Mo. App. 462, 473, 129 S. W. 401; Chandler v. Gloyd, 217 Mo. 394, 412, 116 S. W. 1073.] Another valid reason for refusing the peremptory instruction is that the plaintiff assumed a burden, greater than was necessary on his part. The plaintiff became a passenger when he went to the depot to take passage on defendants’ train (Albin v. Chicago, Rock Island & Pacific Railway Co., 103 Mo. App. 308, 316, 77 S. W. 153) and, therefore, the defendants owed him [466] the duty of protecting him from unlawful assaults by strangers and its employees. [Shelby v. Metropolitan St. Ry. Co., 141 Mo. App. 514, 517, 125 S. W. 1189; Tanger v. Southwest Mo. Ry. Co., 85 Mo. App. 28, 31; Keen v. St. Louis, I. M. & S. R. Co., 129 Mo. App. 301, 307, 108 S. W. 1125; Farber v. Mo. Pac. Ry. Co., 116 Mo. 81, 91, 22 S. W. 613.] A sufficient answer to the second reason, (b), urged for the giving of the peremptory instruction is that the jury found the assumed fact therein stated against defendants. The defendant complains of the refusal of the court to give -an instruction to the effect that if the assault grew out of a personal difficulty between the agent and plaintiff that then he could not recover. The instruction was properly refused because it is shown by all of the testimony that it grew out of the business of the sale of a ticket, as above stated, and also the same hypothesis is included in an instruction given at the request of the defendants. Defendants complain of the refusal of an instruction asked that stated plaintiff should not recover punitive damages. This, it is stated in the brief, should have been given because plaintiff used insulting language in his controversy with the agent, but all of bis witnesses testified he did not, and the jury so found under an instruction given at the request of defendant. It was not error to refuse this instruction. Lastly, it is said the verdict for actual damages is excessive. A gash about two inches in length was cut on plaintiff’s" head to the skull. He and his father testified that he had been unable to work; that he was nervous and could not sleep as before the injury. The doctor who first dressed the wound, called by defendants as a witness, testified that such a lick as this might result as plaintiff testified that it had. This doctor also said that an internal injury might be caused without a break of the skin and that complications might arise later that were not indicated soon after the injury. [467] Defendants cite, in support of this contention (Brisco v. Metropolitan St. Ry. Co., 222 Mo. 104, 117-121, 120 S. W. 1162), where the plaintiff received a slight cut on the chin and other alleged injuries the court was inclined to think were feigned, yet he was required to reduce his judgment to only $3000. An examination of the cases of Matriott v. Mo. Pac. Ry., 142 Mo. App. 199, 203, 126 S. W. 213; Lorton v. Wabash Ry. Co., 159 Mo. App. 559, 567, 414 S. W. 478, cited by appellants will disclose that the amount to which the judgments were there reduced then exceeded in amount the sum covered here and the injuries were probably less than in this case., The verdict in this case is not, in my opinion, so excessive as to require any interference therewith (Dean v. Wabash Railroad, 229 Mo. 425, 457 and 458, 129 S. W. 953; Sampson v. St. Louis and San Francisco Ry. Co., 156 Mo. App. 419, 138 S. W. 98; Moudy v. St. Louis Dressed Beef & Provision Co., 149 Mo. App. 413, 130 S. W. 476) and that it should be unconditionally affirmed, but as the majority of the court entertain a different view of this phase of the case, as stated in a separate opinion by Farrington and Sturgis, JJ., the judgment will be affirmed if the plaintiff, within ten days after this date, will remit $500 of the actual damages allowed him; otherwise the judgment will be reversed and the cause remanded. Farrington and Sturgis, JJ., concur, except as to the last paragraph-relating to damages, and file a separate opinion.