Beck v. Quincy, Omaha & Kansas City Railroad

GOODE, J. (after stating the facts) — 1. An assignment of error is raised against the first instruction given for plaintiff, which advised the jury that if they believed plaintiff when he was admitted into defendant’s train at Edina, intended to pay his fare to Hurdland, and after the train left Edina and reached a point between that station and Hurdland, a point not a usual stopping place or near a dwelling house, the conductor wrongfully and without just cause, ejected plaintiff from the train after plaintiff had tendered the conductor the legal passenger fare from Edina to Hurdland, the verdict should be for plaintiff. One objection urged to this instruction is that the evidence as a whole shows plaintiff boarded the car with the intention of beating his way to Hurdland instead of paying fare and, therefore, never became a passenger, and the court erred in submitting to the jury the question of plaintiff’s intention to pay his fare. This point may be considered in connection with defendant’s exception to the refusal of the court to direct a verdict in its favor, which is founded on the same theory, namely; that plaintiff had no intention of paying his fare and therefore was a trespasser from the first. No doubt plaintiff was guilty of acts indicating he was endeavoring to evade payment of fare, though he borrowed money from Tyhurst ostensibly to pay it. When his fare was demanded-, instead of using the borrowed money, he referred the conductor to Fox, who had not agreed to pay for his passage; and some of the witnesses say Avhen the conductor again demanded a fare after Fox had refused to pay, plaintiff said he had no money and tried to borrow from ChadAvick. Witnesses also swore no offer was made to pay until plain — 19 — tiff had been ejected from the car. But plaintiff swore unequivocally he offered to pay as soon as he was informed Fox would not, and instead of his offer, and even tender of the money, being accepted by tbe conductor, be was immediately seized and ejected from tbe train. Plaintiff was more or less intoxicated, and may have acted foolishly without intending, either when he boarded tbe train, or when bis fare was demanded, to beat his passage. On tbe entire evidence what plaintiff’s purpose was became an issue for tbe jury. If be went on tbe train intending to pay bis fare, be was a passenger and not a trespasser. [Holt v. Railroad, 174 Mo. 524, 74 S. W. 631.] And, according to tbe opinion in' said case, if plaintiff was acting in good faith, though be did not tender a ticket or tbe fare when first accosted by tbe conductor, if be tendered tbe money when it was demanded tbe second time, it was tbe duty of tbe conductor to accept it; at least if plaintiff’s version of tbe incident is tbe true one; for be swore be was seized and bis ejection from tbe car began simultaneously with bis inquiry of tbe conductor as to whether Pox bad refused to pay for him and while be himself was expressing a willingness to pay. It is argued for defendant that the doctrine of tbe Holt case is an exceptional one, and applicable only to cases in which tbe passenger went on tbe train in good faith and with a ticket which he believed entitled him to passage, but which was not available because tbe time limit on it bad expired, or for some other reason. Under such circumstances only say defendant’s counsel, is it tbe duty of a conductor, after a train has been stopped for tbe purpose of ejecting a passenger, to accept tbe latter’s tender of fare. Numerous authorities can be found to support tbe proposition that, if a person on a train refuses to pay for bis passage or produce a ticket when tbe conductor asks for a fare, and thereupon tbe conductor takes measures to stop tbe train for tbe purpose of ejecting the recusant, tbe latter by then ten — 20 — dering payment, does not gain the right to ride and make, the further prosecution of the ejection unlawful. [2 Hutchinson, Carriers (M. & D. Ed.), sec. 1085; sec. 591a original edition.] In this treatise no distinction is taken between an offer to pay fare and a tender of the money; but the text says the prevailing rule and.the one supported by the better reasons, is that a subsequent tender after a previous refusal to pay, does not entitle the traveler to ride, though he may acquire the right by complying with the conductor’s demand at any time before the process of ejection is begun; that if the refusal is persisted in after reasonable time and opportunity to comply and until the ejection has been begun by stopping the train, or otherwise, the passenger forfeits his rights and the ejection may be completed though performance is tendered by the passenger. The opinion in the Holt case draws a distinction between an offer to pay fare after the conductor has started to eject the party, and an actual tender of money to the conductor, holding if a passenger has been acting in good faith and with the intention of paying for his passage, either by a ticket which he believed to be good, or cash, the conductor must accept the fare if tendered after the expulsion of the passenger has begun and cease further to molest him. The idea of the Holt opinion is that a mere offer, without a tender of the money, may be withdrawn, and the other passengers on the train annoyed by delays growing out of repetitions of sham efforts to pay; whereas if money is tendered this cannot happen because the conductor may accept the money and permit the recusant passenger to ride. But if the latter was acting in good faith from the first, which the opinion assumes as the basis of any consideration for him, the danger of his. making successive offers to pay and immediately withdrawing them when the train is stopped to expel him, is imaginary. We do not understand the Holt case to impair the force of the previous decision in the Lillis case, that a — 21 — person is a trespasser if he intends to ride without paying and, in pursuance of this purpose, buys no ticket and refuses to pay a fare when it is asked. If bad faith and a fraudulent motive induced the refusal and the con-' ductor had begun to eject the trespasser, we think the decision in the Holt case would not require the expulsion to cease. We have held there was evidence for the jury on the issue of whether plaintiff took passage on the train intending to pay his fare and still had this intention during his interviews with the conductor. If these facts are found in his favor, and also that he tendered his fare after first refusing it, but not until steps had been taken to eject him, nevertheless, under the Holt decision his expulsion was wrongful. It is said the first instruction given for plaintiff conflicts with the second one for defendant, which told the jury, if they found plaintiff offered to pay his fare, but before making the offer he had refused to pay, and the conductor had signalled to stop the train for the purpose of removing plaintiff, a subsequent offer did not entitle him to be carried on the train and the conductor was under no obligation to permit him to ride. Under the Holt casie an offer to pay, not accompanied by a tender of the money, would be insufficient to put the conductor in the wrong in going on Avith the expulsion. In the first instruction given for plaintiff, his right to continue on the train after he had failed to pay his fare Avhen it was first demanded, Avas made to depend on a subsequent tender. The tAvo instructions are reconcilable by the distinction taken in the Holt case. 2. Complaint is made of the second and third instructions given for plaintiff, because they submitted the case to the jury on the supposed wanton and malicious conduct of the conductor Avhen there was no testimony to show the conductor acted wantonly and maliciously. Plaintiff swore that on his tendering the fare, the conductor said it- was too late and he (the conductor) had — 22 — been waiting for such an opportunity, namely: an opportunity to expel plaintiff from the train. The conductor in his cross-examination said he had had trouble with plaintiff before about fares and was a little “sore” at plaintiff. Besides these circumstances in proof, if the conductor refused plaintiff’s tender and threw him violently off the train at a spot distant from a residence or station, such conduct was evidence of the intentional doing of a wrongful act without just cause or excuse, and therefore of malice. [McNamara v. Transit Co., 182 Mo. 676, 81 S. W. 880; Goetz v. Ambs, 27 Mo. 28; Trauerman v. Lippincott, 89 Mo. App. 478.] Without quoting the second and third instructions, which is unnecessary in view of the point made against them, we may say they did not err in submitting to the jury the question of malice on the part of the conductor; for the issue was inside the evidence. 3. If plaintiff took passage intending in good faith to pay his fare, and was acting in good faith during what transpired between him and the conductor — that is, if he neither boarded the train meaning to beat his way or undertook to do this after he boarded it— it is difficult to discern how a verdict for nominal damages could be escaped; for if those were the facts a statute of the state was violated in expelling him, even with no unnecessary violence, at a point on the railroad which was not a usual stopping place or near a dwelling house. [R. S. 1899, sec. 1074.] This statute has been construed to prohibit, by necessary implication, the ejection of a passenger for refusing to pay fare except at the places designated. [Holt v. Railroad, supra.] But this is true only in case the person ejected became a passenger by taking the train intending to pay for his transportation, either by a ticket believed to be good, or money. If he took passage with the intention of beating his way, he is regarded as a trespasser and not within the scope of the statute, which relates to passengers, and may be — 23 — ejected at any point on the line. [Lillis v. Railroad, 64 Mo. 464.] A carrier is hound to accord, even to a trespasser, humane treatment; not inflict brutal violence on him or employ more force than is needed to eject him; and likely throwing him out under circumstances indicative of inhumánity or reckless disregard of life, might entitle him to an action; for instance, if he was removed from the train far from any place of succor and under circumstances which obviously exposed him to loss of life or to serious injury. [2 Hutchinson, Carriers (M. & W. Ed.), secs. 978, 1082, 1083.] However, these possible qualifications of the general rule do not call for attention in the present case. The court below in instructing the jury fully conceded defendant’s contention that if plaintiff went on the train with no purpose of paying fare, and later refused to pay until the conductor had taken steps to stop the train and put him off, plaintiff did not become a passenger and the conductor had the right to remove him from the car, using such force as was necessary, at a point which was neither a usual stopping place or near a dwelling house. The court instructed at defendant’s request and on the evidence supporting its defense, in accordance with the opinion of the Supreme Court in the Lillis case. All the instructions requested by defendant except one for a verdict in its favor, were given. 4. It is earnestly insisted the judgment ought to be reversed because of improper remarks of the attorneys for plaintiff both during the introduction of testimony and the arguments to the jury. We have set out the expressions of counsel of which complaint is made and the rulings of the court on defendant’s objections. Considerable discretion is entrusted to the trial courts in preserving proper conduct during a trial and preventing the utterances of statements or sentiments likely to mislead the jury regarding the evidence or unduly arouse their sympathies or inflame their prejudices. This dis — 24 — cretion is not absolute and is subject to review. [Haynes v. Trenton, 108 Mo. 123, 18 S. W. 1008; Evans v. Trenton, 112 Mo. 390, 20 S. W. 614.] Trials before juries ought to be conducted with dignity and in such manner as to bring about a verdict based solely on the law and the facts. Hence reckless assertions unwarranted by the proof and intended to arouse hatred or prejudice against a litigant or the witnesses, are condemned as tending to cause a miscarriage of justice. Our Supreme Court in Evans v. Trenton, supra., dwelt on the necessity of confining the remarks and arguments of the counsel in a case to a discussion of the facts in proof, and the duty of the trial court to restrain abuses of the right of argument. In its opinion the court indorsed the words of the Supreme Court of North Carolina, that no other duty incumbent on the trial court is more important to the fair and orderly administration of justice, than that of restraining everything in the course of the trial which tends to mislead the jury. Several of the remarks made by plaintiff’s counsel in the present case were highly reprehensible and of very prejudicial character, and not all of them were condemned by the court. The assertion that the history of litigation, as shown by the papers, is that the employees of railroad corporations are compelled to color the truth was egregiously improper. An objection to this utterance was raised promptly by defendant’s counsel, but all the court said to plaintiff’s attorney was to confine himself to the evidence.' To this mild reproof the attorney replied he was not going outside the evidence; that the court in a case of his had said he was entitled to draw such conclusions as he was drawing. We have been referred to no reported case announcing such a doctrine; and beyond doubt there was no evidence introduced to justify the assertion. It was an unwarranted attempt to excite aversion in the jury against defendant and the testimony of its employees. The attorney persisted in his statement after the court — 25 — had forbidden him to go outside the evidence, and practically reiterated it without further reproof. Other statements were made of an improper character, some of which were lightly censured and others not at all. The record shows contemptuous and insulting remarks about defendant and its witnesses were freely made by plaintiff’s attorneys. But for the extraordinary character of the verdict we might not interfere with the judgment on account of these improprieties. We think a verdict for plaintiff for one dollar actual damages, demonstrates the jury must have disbelieved his story in the main; because if his account of his treatment and sufferings is true, he was entitled to substantial damages. These were not given in a compensatory form, but punitive damages to the amount of one thousand dollars were given; and in this state such verdicts have been upheld, though in many jurisdictions an award of nominal damages will not support an assessment of exemplary. [Mills v. Taylor, 85 Mo. App. 111; Ferguson v. Publishing Co., 72 Mo. App. 462.] We are impressed with the belief that passion and prejudice were unduly aroused against defendant by the remarks of plaintiff’s counsel during the course of the trial, and that the resentment thus excited was not allayed by what the court said, but told heavily in the assessment of the punitive damages. This being true, it is our duty to reverse the judgment in order that there may be a fair trial of the issues and, if they are found in favor of plaintiff, that an impartial award of damages may be made. We are supported in this ruling, we think by the following authorities, besides the cases already cited. [1 Thompson, Trials, ch. XXX, on “Abuses of the Right of Argument;” Williams v. Railroad, 123 Mo. 573, 586, 27 S. W. 838; Rice v. Sally, 176 Mo. 107, 146, 75 S. W. 398; Smith v. Tel. Co., 53 Mo. App. 26; Ensor v. Smith, 57 Mo. App. 584; Fatham v. Tumility, 34 Mo. App. 236; Killoren v. Dunn, 68 Mo. App. 212.] — 26 — The judgment is reversed and the cause remanded. All concur.