Carmody v. St. Louis Transit Co.

BLAND, P. J. (after stating the facts). — 1. Defendant offered an instruction in the nature of a demur — 346 — rer to plaintiff’s evidence.' The refusal of the court to grant this instruction as to the cause of action stated in the second count of the petition is assigned as error. By-reference to the second count it will be seen the cause of action therein stated is, in substance, that defendant’s servants and agents unlawfully, falsely and maliciously caused plaintiff to be arrested by a police officer. Plaintiff’s evidence tends to show the arrest was made on the request of Calhoun, and the evidence is that Calhoun was a road officer of the eastern division of defendant’s system of roads. What his duties were as such road officer is not shown by any direct evidence in the case; however, Rodgers, the conductor of the ear, testified that Calhoun was his superior officer and had the right to take charge of his car at any point on the road; and it is shown by plaintiff’s evidence that Calhoun not only directed the ejection of plaintiff, but also requested his arrest. Calhoun, according to the evidence of Rogers, was his superior officer in the management of the car and acted, on the occasion, as the conductor’s superior, in regard to having plaintiff put off the car and arrested. In Dwyer v. St. Louis Transit Company, 108 Mo. App. 152, and Boden v. St. Louis Transit Company, Ib. 696, it was held that the conductor of a street car has the authority to order the arrest of a passenger on the car, who refuses to pay his fare, or for other statutory causes. It necessarily follows that Calhoun, as the superior of the conductor, had the same authority. We think, therefore, the court did not err in refusing to grant the instruction as to either count of the petition. 2. The second error assigned is the giving of the following instruction for plaintiff: “2. If the jury find from the evidence in this case, that on the eighteenth day of May, 1901, the defendant was operating the railway and car mentioned in the evidence for the purpose of conveying passengers, for hire — 347 — as a street railway company; and if the jury further find from the evidence that on said day the defendant, by its servants in charge of its car bound south on Broadway, in the city of St. Louis, received the plaintiff as a passenger upon said car, to be carried as a passenger thereon to his destination on defendant’s line, to-wit, at or near Pestalozzi street; and if the jury find from the evidence that the plaintiff had paid his fare, as such passenger, and had a transfer ticket entitling him to ride as a passenger upon defendant’s said car to his said point of destination; and if the jury further find from the evidence that whilst the plaintiff was such passenger on said car, and before he reached his said destination as such passenger, defendant’s servants in charge of said car, whilst acting as such, and whilst in the line of their employment as such, assaulted the plaintiff and did threaten, menace and abuse the plaintiff, and did threaten and put the plaintiff in peril of his life and of great bodily harm, and did compel the plaintiff to leave said car as such passenger; and if the jury find from the evidence that said acts by defendant’s servants subjected the plaintiff to pain, humiliation and disgrace; then the plaintiff is entitled to recover therefor such damages as the jury may believe from the evidence will compensate the plaintiff for such pain, humiliation and disgrace so suffered. And if the jury find from the evidence that such acts were done by defendant’s said servants, willfully and without legal justification or excuse or provocation, then the jury should further assess damages against the defendant in such sum as the jury may believe from the evidence will be a suitable punishment to defendant for such wrongful acts. And such damages should be separately stated in the verdict.” Defendant contends the instruction is erroneous in that it “directs the jury that if the alleged acts subjected, that is, exposed or laid the plaintiff liable to — 348 — pain, then the jury must give snch damages as will compensate the plaintiff for such pain, etc., so suffered. This assumes that the plaintiff did suffer pain, etc., if the acts of the defendant subjected, that is, exposed or laid him liable thereto. . It did not submit to the jury the question to be passed upon as a matter of fact or whether the plaintiff did suffer any pain, etc., or not.” The instruction is not open to this criticism. By'the sixth clause thereof the jury were directed to assess “such damages as the jury may believe from the evidence will compensate the plaintiff for such pain,” etc. The use of the words, “subjected the plaintiff to pain,” etc., is criticised as assuming that plaintiff suffered pain, etc. As used in the instruction the term means, to undergo, and could not, in the connection in which it is used, have been understood by the jury in any other sense. It is also claimed the instruction is erroneous, in that plaintiff was not threatened, not put in peril of life or limb, and was not ejected from the car. The uncontradicted evidence is that plaintiff was forcibly removed' from a seat near the front end of the car and out of the body of the car on to the back platform, by defendant’s agents and employees; and plaintiff’s evidence tends to show Calhoun raised the controller handle over his head in a threatening manner, hence there was more than a mere technical assault. There was an actual assault, coupled with a threat to do plaintiff great bodily harm, and an actual ejection from the body or inside of the car. This transaction constituted one cause of action. Plaintiff’s arrest followed this transaction and constituted another and different cause of action and, if made maliciously and without probable cause, was in itself a tort, wholly independent of the assault and ejection from the car, and furnished plaintiff another and separate cause of action, and there is no merit in the contention that the evidence shows but one cause of action. It is also contended that the instruction is erroneous in — 349 — directing the jury to award punitive damages if they found the assault'and ejection willful, “without legal justification or excuse or provocation.” It is not every wrong that authorizes the awarding of punitive damages. Such damages are only authorized where the tort complained of is characterized by express malice, violence, oppression or wanton recklessness. [Kennedy v. Railroad, 36 Mo. 350; Buckley v. Knapp, 48 Mo. 152; Carson v. Smith, 133 Mo. 1. c. 617, 34 S. W. 855, and cases cited.] Such damages are not allowed solely as so much additional compensation, but are allowed, principally, as punishment of the wrongdoer and to deter others from committing like torts. [2 Sutherland on Damages (3 Ed.), sec. 401.] They are, therefore, not allowed as a matter of legal right and their allowance should always be left to the discretion of the jury. [Nicholson v. Rogers, 129 Mo. 136; Carson v. Smith, supra; Sutherland on Damages (3 Ed.), sec. 403.] Therefore, it was error to instruct the jury they “should” find exemplary damages. It is also contended that the instruction is erroneous in that it admits damages for pain, humiliation and disgrace without the same being connected in any manner with a physical injury. In Spohn v. Railway, 116 Mo. 617, 22 S. W. 690, the plaintiff was frightened by defendant’s servants in charge of the train and other persons thereon, and jumped from the train while it was in motion. An instruction was given by the court, entitling plaintiff to recover damages of defendant for threats whether any' injury, fear or fright resulted therefrom to his person or property. At page 633, Judge Gantt pronounced the instruction erroneous and said: “We do not think any case in this court can be found which will sustain the doctrine announced in this instruction.” The Spohn case was followed by us in Grayson v. St. Louis Transit Co., 100 Mo. App. 60. In Trigg v. Railway, 74 Mo. 1. c. 153, the court — 350 — said: “The general rule is that 'pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult or inhumanity.’ ” In Sommerfield v. Transit Co., 108 Mo. App. 1. c. 724, 84 S. W. 172, we said: “The law is firmly established that where the commission of a tort is attended with circumstances denoting malice, or oppression; or where the defendant acts willfully and with wanton disregard of the rights of others, exemplary or punitive damages may be allowed, as well for the punishment of the wrong inflicted as to deter repeated perpetration of similar acts. [2 Sutherland, Damages (3 Ed.), sec. 391.]” Plaintiff’s evidence tends to show the assault upon him was accompanied by circumstances of malice and oppression, and that his life or great bodily harm was threatened. Under this evidence, we think it was proper to have the element of pain and mental anguish submitted to the jury in estimating plaintiff’s damages. 3. What is said of the first instruction applies to plaintiff’s second instruction, based on the second count of the petition. 4. The fourth instruction for plaintiff, the giving of which is assigned as error, is as follows: “The court instructs the jury that if they find from the evidence in this case that the defendant’s servants in charge of its south-bound car received the plaintiff as a passenger thereon, at Broadway and Olive streets,, in the city of St. Louis; and, if the jury further find from the evidence that the plaintiff had paid his fare entitling him to ride as a passenger on said car to his destination on defendant’s line of railway; and, if the jury find from the evidence that the plaintiff obtained from defendant’s conductor in charge of its car on Olive street, at the time he paid such fare, a transfer ticket, entitling — 351 — him to ride as such passenger on said Broadway car to his destination; and, if the jury further find from the evidence that the plaintiff tendered to the conductor of said Broadway car such ticket unmutilated, in payment of his fare as such passenger on said car; then the defendant and its servants in charge of said car were bound in law to safely carry the plaintiff as such passenger upon said car, to his said point of destination, if they could do so by the exercise of the high degree of care of careful railroad employees under the same or like circumstances.” Under the evidence, we think this was a proper instruction. It defines the right of plaintiff and the duty of defendant’s agents and servants, in the circumstances shown by the evidence, and informed the jury, in effect, that if plaintiff offered his transfer ticket to the con- ■ ductor, putting him off the car was unwarranted and a violation of his rights. 5. Defendant offered the following instruction which the court amended by inserting after the word “expressly,” the words “or impliedly,” and gave the instruction as modified. “7. The jury are instructed that they are not authorized to infer from the fact that defendant’s agents were authorized by defendant to expel the plaintiff from the car for non-payment of fare, and that they did expel him; that such agent or agents were authorized by defendant to .cause plaintiff’s arrest; but before the plaintiff can recover for the arrest alleged he must show by a preponderance of tlie'evidence that the defendant had either expressly authorized and empowered such agent or agents to cause plaintiff’s arrest, and that they, ‘or some of them, were acting within the scope of that authority and power, and in pursuance thereof caused plaintiff to be arrested, and if the plaintiff has failed to so prove such authority, or such action in pursuance of — 352 — it, then your verdict must he for defendant on the ground of the arrest.” Under the authority of Dwyer v. St. Louis Transit Co., and Boden v. St. Louis Transit Co., supra, the modification of the instruction did no harm. 6. Defendant asked the following instruction, which the court refused to give: “14. Even if the jury do find from the evidence, under the instructions of the court, that the plaintiff offered a proper transfer, and that the conductor had no legal right to refuse the same, those facts would only authorize the plaintiff to pay the fare or quit the car and sue for and recover fair compensation (including another fare, had he paid the same, and it was wrongfully demanded) for such wrong, and if you believe from the evidence by such course the plaintiff could have avoided his alleged shame and mortification of a public expulsion, but chose, rather than to take that course, to resist the demands of the conductor to the extent of requiring the use or show of force for his removal from the car, then he subjected himself to whatever mortification he suffered from being publicly removed from the car, and that is not a matter to be considered by you in estimating his damages for such expulsion.” In Woods v. Railway, 48 Mo. App. 125, the Kansas City Court of Appeals approvingly quoted the following from Frederick v. Railroad, 37 Mich. 342: “The public is interested in having the rules whereby conductors are to govern their actions certain and definite, so that they may be enforced without confusion and without stoppage of trains; and if the enforcement causes temporary inconvenience to a passenger, who by accident or mistake is without proper evidence of his right to passage, though he has paid for it, it is better that he submit to the temporary inconvenience than that the business of the road be interrupted, to the general annoyance of all who are on the train. The conductor’s — 353 — duty, when the passenger is without the evidence of having paid his fare, is plain and imperative, and it can serve no good purpose and settle no rights to have a controversy with him.” The same doctrine is held in Pennsylvania R. R. Co. v. Connell, 112 Ill. 295, and in other cases that might be cited. In Erie Railroad Co. v. Winter, 143 U. S. 60, the facts are as follows: “Plaintiff bought a ticket in Boston entitling him to a passage over defendant’s road. At the time he informel the ticket agent of his wish to stop off at Clean station, and was then told by the agent that he would have to speak to the conductor about that. Between Binghamton and Olean the plaintiff informed the conductor that he wished to stop over at Olean and the conductor, instead of giving him a stop-over ticket, punched his ticket and told him that was sufficient to give him the right to stop over at Olean, and afterwards to use the punched ticket between Olean and Salamanca. He made the stop, and taking another train to Salamanca, presented the punched ticket, informing the conductor of what had taken place. The conductor refused to take it and demanded full fare. The payment of this being refused, the conductor stopped the train atthenext station and ejected him from it, using such force as was necessary.” The court held: “1. That he was rightfully on the train at .the time of his expulsion; “2. That the conductor had no right to put him off for not paying his fare; “3. That the company was liable for the act of the conductor; “4. That the passenger had a right to refuse to be ejected from the train, and to make a sufficient resistance to be being put off to denote that he was being removed against his will by compulsion; “5. That the fact that under such circumstances — 354 — he was put off the train was, of itself, a good cause of action against the company, irrespective of any physical injury he might have then received, or which was caused thereby.” • In English v. Delaware and Hudson Canal Co., 66 N. Y. 454, it was held: “A passenger who is lawfully upon a railroad train and has paid his fare has the right to offer such resistance to any attempt on the part of the conductor to remove him therefrom as may be necessary to prevent his being ejected; and if, in consequence of his resistance, extraordinary force becomes necessary and is used to remove him, and he is injured thereby, he can recover of the corporation for such injury.” In Breen v. St. Louis Transit Company, 102 Mo. App. 479, 77 S. W. 78, Ave held that plaintiff, Avho was rightfully on board defendant’s car, and who had tendered and continued to tender his fare in laAvful money; but which the conductor would not receive because he believed it was counterfeit, “had a right to protest and reasonably resist ejection, and forfeited none of his rights to recover damages thereby.” It is only where the passenger has no ticket and refuses to pay fare that the conductor is authorized to eject him, and the burden is on the railroad company to sIioav that one ejected from a train or car was put off for failure to pay fare, or for some other statutory ground. [Holt v. Railway, 174 Mo. 524, 74 S. W. 631.] 7. Defendant’s twelfth refused instruction is as follows: “If the jury, after a full and fair consideration of all the facts and circumstances in evidence before them, believe that the plaintiff refused to pay the fare demanded by the conductor, for the purpose of being put off the car or arrested, to the end that he might make such expulsion or arrest the basis of a suit for damages,' then the plaintiff cannot recover on either count of his — 355 — petition anything more than actual compensatory damages for his loss of time, expenditures and the like, and cannot recover anything for humiliation, shame or mortification or for punitive or exemplary damages.” Outside of Calhoun’s suspicion, there is no evidence whatever in the record to support this instruction. For error in giving instructions in respect to exemplary damages the judgment will be reversed and the cause remanded, unless within ten days from the filing of this opinion, plaintiff remit the sum of two dollars of his judgment; if the remittitur be entered in the time herein allowed the judgment Avill be affirmed for one thousand dollars. All concur..