Green v. United Railways Co. of St. Louis

ALLEN, J. — This is an action whereby plaintiff seeks to recover damages, compensatory and punitive, because of the alleged wrongful act of defendant’s servant in ejecting him from one of defendant’s street ears in the city of St. Louis. The trial below resulted in a verdict and judgment for plaintiff in the sum of — 310 — $50 compensatory and $5.00. punitive damages; and the case is here on defendant’s appeal. The petition alleges that defendant street railway company was originally- incorporated under the name “Central Traction Company of St. Louis” and thereafter ■ lawfully changed its name to “United Railways Company of St. Louis,” and that defendant, before thus changing its name, for a valuable consideration, contracted and agreed with the city of St. Louis “that transfers should be given so as to transport passengers, by continuous trip, from any point on defendant’s system of street ears in the city of St. Louis to any other point on defendant’s street car lines in said city.” And it is alleged that on June 13, 1913, plaintiff boarded a. ‘ ‘ south-bound Union Avenue street car ’ ’. operated by defendant, at the' intersection of Florissant and Robin Avenues in said city, “for the purpose of paying defendant the lawful and customary fare and in consideration thereof being transported by defendant as a passenger on said car and other cars of defendant to the intersection of Grand Avenue and Hebert Street,” a point on defendant’s street railway system in said city; that plaintiff boarded the car and tendered to defendant’s conductor in charge thereof the lawful and customary fare and requested defendant’s conductor to give him a transfer that would enable him, without the payment of ■ additional fare, to be transported continuously to Grand Avenue and Hebert Street, but that defendant, through its said conductor, in violation of the contract referred to in the petition, refused to give plaintiff such transfer, and thereupon “unlawfully, intentionally, maliciously, without any just cause or reasonable excuse, violently and wrongfully ejected plaintiff from said car, used unnecessary force, and thereby bruised and strained plaintiff’s elbows, back and knees, and greatly humiliated plaintiff, to his damage in the sum of $1000. Judgment is prayed for $1000 compensatory and $10,000 punitive damages. The answer is a general denial coupled with a plea to the effect that whatever injuries plaintiff sus — 311 — tained were caused by his refusal to pay his fare, as a result of which he was ejected from defendant/s car; and it is averred that defendant’s employee who ejected plaintiff used only such force as was absolutely necessary under the circumstances. The evidence shows that plaintiff boarded one of defendant’s street cars on its Union Avenue line, at the point mentioned in the petition, to-wit, the intersection of Florissant and Robin Avenues. Plaintiff’s ultimate destination was Grand Avenue and Hebert Street in said city, and he desired to be transported to that point over three of the connecting lines of defendant’s system, viz., the Union Avenue, the Bellefontaine, and the Grand Avenue lines, and insisted upon the right to be so transported for one fare and to receive from the conductor in charge of the car on the Union Avenue line a transfer entitling him to ride on both of the other' lines mentioned. It appears that plaintiff was at the time a member of a certain organization or league which was seeking to compel the defendant to issue to its patrons, upon request therefor, transfers of the character mentioned; that he customarily rode upon these three of defendant’s car lines, in the order mentioned, in going to his work, and had repeatedly demanded such transfers. He had had various controversies with defendant’s conductors on the Union Avenue line regarding the matter, and had upon many occasions been permitted to ride upon these cars without paying his fare, paying upon the Belle-fontaine line and receiving a transfer to the Grand Avenue line. According to his own testimony he had thus ridden, without paying his fare upon the Union Avenue cars, for about seventy-five days. Upon the day mentioned, plaintiff, according to his testimony, got upon the rear platform of defendant’s ear, and when the conductor asked him for his fare he held up in his right hand a half dollar and in his left hand a card containing these words: ‘ ‘ Transfers shall be issued so as to transport passenger by continuous trip from one point on the system to any other point on the system for a fare of five cents,” and — 312 — said: “Here is the law and here is my fare. If yon obey the law I will pay my fare, otherwise I will not pay it. Can you give me the transfer I want?” He says •that he demanded a transfer “to get on the Grand Avenue ear,” bnt that the conductor refused to give him any transfer other than one entitling him to ride upon the Belief on taine line; and .that upon his continued insistence that he would not pay his fare unless he received the transfer demanded, the conductor, saying that “he was getting tired of this monkey business,” stopped the car, and siezing him by the lapel of his coat jerked him violently and threw him off the car. According to plaintiff’s testimony he told the conductor that he would offer no violence; and that he did not resist the conductor in any way; but that the latter nevertheless hurled him violently from the car causing him to fall into a ditch whereby one wrist was sprained, and, as he claims, his back was wrenched. The testimony of the witnesses for plaintiff tends to corroborate him in respect to the manner in which he was ejected from the car. On the other hand defendant’s evidence tends to show that no more force was used than necessary in ejecting plaintiff; that the conductor merely took plaintiff by the arm and “walked him off,” and that he did not fall. The refusal by the trial court of an instruction in the nature of a demurrer to the evidence offered by defendant is assigned as error. The argument in support of this assignment of error proceeds upon the theory that, under the circumstances shown in evidence, defendant was lawfully entitled to eject plaintiff from its car, as for a wrongful refusal to pay his fare or unconditionally tender the same. A careful consideration of the matter has led us to the conclusion that while this assignment of error cannot be sustained — because of the evidence as to the use of unnecessary force in ejecting plaintiff — appellant is correct in its contention that plaintiff had no right to remain upon the car without paying his fare or unconditionally tendering it. We assume that plaintiff, had he paid — 313 — bis fare, would have had the right to demand a transfer entitling him to ride over the other two street car lines mentioned, to his ultimate destination. This may oe said to he tacitly conceded here by defendant’s counsel, though the question as to defendant’s legal duty in the premises was in dispute below. Nevertheless it quite clearly appears, we think, that under the circumstances of this case, plaintiff has no cause of action as for a wrongful ejection from the car, provided no more force than necessary was used in ejecting him. This is for the reason that the plaintiff did- not, on his part, accept the contract of carriage tendered him by defendant and perform the obligation resting upon him as the other party thereto. Though entitled to receive the transfer demanded, when that was refused he was not entitled to remain upon the car and continue to utilize defendant’s transportation facilities without paying his fare. He refused to make such payment; his conditional offer to pay not being a good tender. He had no right to ride at all upon- defendant’s car without paying fare therefor. Had he paid his fare, and had defendant’s conductor then refused to issue the transfer in question, plaintiff would have had his remedy. But if he chose not to pay his fare, under’ the circumstances, then it was his duty to leave the car at the first opportunity, i. e. when the car had been stopped at a safe place for him to alight, and seek other means of redress if he so desired. He was not entitled to continue to ride upon the Union Avenue line without paying any fare. In a case here closely in point, viz., Louisville Railroad Co. v. Hutti, 141 Ky. 511, 133 S. W. 200, 33 L. R. A. (N. S.) 867, the Court said: “The ground of complaint on this appeal is the refusal of the trial court to grant appellant’s motion for peremptory instruction. The propriety of the ruling depends on the nature o.f the contract to carry the passenger and the rights of the parties upon its breach. It may be assumed that appellee was entitled to a transfer, under his contract, entitling him to con — 314 — tinue his journey upon the Oak street car, provided the contract was consummated. But before he was entitled either to continue his passage on the Fourth street car, or to transfer to the Oak street car, he must first have paid or tendered the necessary fare, which was 5 cents. He did not pay it. He tendered it, but tendered it conditionally; and from what he then said, and from his conduct as well, it.is inferable that, unless the conductor had complied with his demand to deliver simultaneously the transfer ticket, he would not have paid the fare tendered. In this appellee misconceived his right. It was his duty to pay his fare, or to tender it, without condition. If thereupon the conductor refused to allow him to proceed upon the car, and ejected him, he had his demand for damages. Or if the cofiduetor should have received his fare, and have allowed him to remain on the Fourth street ear, hut failed to give him in time a transfer ticket entitling him to continue his journey on the Oak street car, he was entitled to his damages, which would be the sum which he might have been compelled to pay on the Oak street car in order to complete his passage. But, though the conductor wrongfully intended not to issue appellee a transfer slip, that did not entitle appellee to ride on the Fourth street car without paying the fare. The conductor had the right to demand the payment of the fare before either allowing appellee to continue upon the car or issuing a transfer slip. The contract began only- upon the payment or tender of the consideration. The acts could not well he simultaneous — at least, are not required to he. One must precede, and that is payment. Possibly a more courteous and patient treatment and explanation by the conductor might have averted the trouble. But, whether so or not, the conductor was within his legal rights in demanding the payment of the fare first, and refusing a conditional tender of it. When appellee refused either to pay or tender the fare unconditionally, he had not the right to remain on the car. He had not the right to ride there without paying the fare. When requested — 315 — to leave the ear after it stopped for that purpose, he was in the wrong in failing to do so; and it was lawful for the conductor to eject him, using no more force than was reasonably necessary for that purpose.” In this connection see also: Davis v. Railroad, 53 Mo. 317; Cave v. Railway, 94 S. C. 282, 54 L. R. A. (N. S.) 915; Rossman v. Railway & Power Co. (Ga.), L. R. A. 1917 C. 483; Rahilly v. Railroad, 66 Minn. 153; St. Louis, etc., R. R. Co. v. Leigh. 45 Ark. 368; Kirk v. Electric Co., 58 Wash. 283, 31 L. R. A. (N. S.) 991; 4 R. C. L., p. 1104, sec. 555. In Davis v. Railroad, supra, plaintiff refused to give up his railway ticket until such time as he was provided with a seat. He later obtained a seat but refused to surrender his ticket or pay full fare for the entire journey, and was ejected from the train. It was held that the ejection was lawful; that if there was a noncompliance by the carrier with any of the terms of the contract of carriage in any essential particular, and plaintiff was unwilling to accept the company’s part performance thereof, it was his duty to abandon the contract and quit the train as soon as a suitable opportunity was afforded; that he would not be permitted “to grasp that contract’s benefits with one hand while he shirks and repudiates its burdens and liabilities on the other.” For respondent it is argued, among other things, that since the evidence shows that the conductor refused to issue the transfer in any event, a tender would have been unavailing, and hence defendant cannot justify the ejection upon the theory that an unconditional tender was not made. The doctrine thus sought to be invoked has, we think, no application to the facts of this case. The argument might be sound enough were we merely passing upon plaintiff’s right to receive the transfer demanded; but we are here concerned with the question as to whether .defendant- was lawfully entitled to eject plaintiff from the car under the circumstances. And for the reasons stated above we think that the ejection was lawful if no unnecessary force was used. — 316 — But though defendant was entitled to eject plaintiff, if unnecessary force was used in so doing whereby plaintiff was injured defendant is liable to respond in damages therefor. Plaintiff alleges in his petition that unnecessary force was used, and his evidence tends to support this allegation and to show that he received at least some injury. He was entitled to go to the jury upon this issue, hut the instruction given at his instance on the measure of damages is erroneous in allowing a recovery not only for his alleged injuries hut for humiliation. According to plaintiff’s own evidence he invited ejection from defendant’s car. He went thereupon, armed with the “law,” to demand what he conceived to be his rights, for the purpose of either obtaining the desired transfer or compelling defendant to put him off the car.' His testimony shows clearly that it was his purpose to make the conductor lay hands upon him and eject him from the ear in order to lay the foundation for this action. Under such circumstances no recovery may he had for humilation or disgrace by reason of being ejected in the presence of passengers or others. [See Brenner v. Jonesboro, etc., R. R. Co., 82 Ark. 128, 100 S. W. 893, 9 L. R. A. (N. S.) 1060.] It is argued by appellant that plaintiff is likewise entitled to recover no punitive damages in the case, because of the fact that he thus invited ejection from the car. This we think does not follow. The decision of this court in Mitchell v. Railways Co., 125 Mo. App. 1, 102 S. W. 661, cited by appellant, is not, we think, here in point. From what we have said above it follows that plaintiff is not entitled to punitive damages by reason merely of having been ejected from the car. For mere ejection without the use of unnecessary force he can recover neither actual nor punitive damages. However, if, upon a new trial, the jury find the facts in his favor respecting the use of .unnecessary force, plaintiff is entitled to recover compensatory damages for his actual physical injuries, if any, and likewise, punitive damages in the discretion of the jury. Such unnecessary force, if any, would amount to an un — 317 — warranted assault, justifying the assessment of punitive damages, should the jury see fit to award the same, as for the doing of a wrongful act without just cause or excuse. The judgment will accordingly he reversed and the cause remanded for a new trial in accordance with the views expressed above. It is so ordered. Reynolds, P. J., and Becker, J., concur.