Albers v. Merchants' Exchange of St. Louis

• Decision Date: 10 March 1897
• Citation: 39 S.W. 473,138 Mo. 140
• Parties: Albers, Respondent and Appellant, v. The Merchants' Exchange of St. Louis, Orthwein et al., Appellants and Respondents
• Court: Missouri Supreme Court

39 S.W. 473

138 Mo. 140

Albers, Respondent and Appellant, v. The Merchants' Exchange of St. Louis, Orthwein et al., Appellants and Respondents

Supreme Court of Missouri, Second Division

March 10, 1897

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed.

Jos. S Laurie for appellants and respondents.

(1) The counsel fees which plaintiff was required to pay in order to obtain the injunction, and also the shame and humiliation which he suffered by reason of his suspension, are elements of the compensatory damages which he was entitled to recover. Douglass v. Stephens, 18 Mo. 362; Waters v Brown, 44 Mo. 302; Railway Co. v. McGrew, 104 Mo. 282, 291; Alliance Trust Co. v. Stewart, 115 Mo 236, 246; Kansas City v. Morton, 117 Mo. 446, 459; Citizens R'y Co. v. Hobbs, 43 N.E. 479; Moore v. Kalamazoo, 66 N.W. 1089; 1 Sedg. Dam., secs. 201-219; 1 Suth. Dam., secs. 85-90. (2) And where the injury is such that the party can not by his own efforts protect his rights, and counteract or reduce the impending damages, and it is within the power of the court upon proper application to do so, the injured party is authorized to avail himself of counsel and invoke the aid of the court at the expense of the wrongdoer, upon the same principle that he might procure medical attendance if the injury affected his person instead of his property rights. 1 Suth. Dam., sec. 90; Gilkerson Sloss Com. Co. v. Yale, 47 La. Ann. 690; State ex rel. Patterson v. Tittmann, 35 S.W. 581. (3) In the case at bar plaintiff's suspension was for an indefinite period and, by its terms, tantamount to an expulsion. Great pecuniary loss to him was imminent as the natural result of such suspension, unless he submitted to the wrong and paid the fine; a step which the law did not require him to take for the protection of the wrongdoers. 1 Sedg. Dam., sec. 224; 3 Suth. Dam., sec. 948; R'y Co. v. Mackee, 71 Tex. 49; Yorton v. R'y Co., 62 Wis. 367; Albers v. Mer. Ex., 39 Mo.App. 583, 590. What was his duty under the circumstances? Should he fold his hands and passively await the destruction of his business and then seek compensation in damages, or should he at once use reasonable precautions to minimize the injurious consequences and avert the threatened loss? He chose the latter and by promptly employing counsel and obtaining an injunction, stayed further progress of the hands which otherwise would have accomplished his financial ruin. The wisdom of such step can not be disputed. (4) Shame and humiliation. It is now undisputed that mental suffering consequent upon physical injury, whether such injury be the result of negligence or intentional wrong, is a subject of compensation; and this is likewise true of the mental anguish which is supposed to continue long after the bodily pain has ceased, in cases where the injured party has consequently become permanently disfigured or disabled. Porter v. R'y Co., 71 Mo. 66; Trigg v. R'y Co., 74 Mo. 147. And the courts have gone a step further and hold that mental suffering is an element of actual damages in cases where is no bodily pain, as where the violence consists of a slap in the face, or a kiss, or an assault without physical contact. (5) It is immaterial what is the nature of the wrongful act, whether accompanied by violence or not; it is enough if the doing of such act in itself puts an indignity or insult upon the other party. This is illustrated where the conductor of a railway train, under an honest mistake on his part as to the payment of fare, stops the train and compels the passenger to alight, acting considerately, however, and offering no violence. Hamilton v. R'y Co., 53 N.Y. 25; Carsten v. R'y Co., 47 N.W. 49; C. & A. R. R. Co. v. Flagg, 43 Ill. 364. Or where the passenger, a lady, having a first-class ticket, was wrongfully compelled by the conductor, under a misapprehension, to ride in a second-class car where her feelings and modesty were outraged by the profanity and obscenity which prevailed among the class of passengers in that car. 3 Suth. Dam., sec. 948; R'y Co. v. Mackie, 71 Tex. 491. Or where a landlord, acting upon the belief that the lease had been lawfully terminated, wrongfully dispossessed the tenant during his temporary absence from the house and moved his furniture into the street, whereby the tenant and his family were subjected to shame and mortification. Moyer v. Gordon, 113 Ind. 282; Connell v. Western Union Telegraph Co., 116 Mo. 34. (6) In support of our contention that in an action of tort mental suffering disconnected with physical injury is a subject of compensatory damages, we cite the following authorities: "We conceive the correct rule to be that mental suffering or nervous shock may be recovered for whenever it is the natural and proximate result of the wrong done, if such wrong gives the injured party a cause of action." 3 Suth. Dam., sec. 943. "Sense of insult or indignity, mortification or wounded pride is a subject of compensation." Sedg. Dam., secs. 47, 69, 520. "The weight of authority is in favor of the proposition that in estimating compensatory damages it is proper to consider the humiliation and degradation imposed upon an injured person by the wrong done him." 2 Waterman on Corp., sec. 303. "The indignity suffered by the wrongful act of another is a proper subject of compensation, whether the act was wanton, malicious or willful, or whether it was simply negligence or a mistake." R'y Co. v. Christian, 39 Ill.App. 495. "In actions for personal tort, mental suffering, vexation and anxiety are subjects of compensation in damages. * * * We must hold that mental suffering directly consequent upon the tort, is ground for compensatory damages in an action for the tort." Craker v. R'y Co., 36 Wis. 657, 678. "Wounding a man's feelings is as much actual damage as breaking his limbs." Head v. R'y Co., 79 Ga. 358, 360. "Where mental pain or suffering is connected with, and follows as a natural consequence of a material wrong or injury, it is a legitimate element of damages." Sloan v. Edwards, 61 Md. 89. (7) The evidence tended to show malice in law and that issue should have been submitted to the jury. The defense set up in the answer as to advice of counsel was not sustained by the testimony offered. Ludowiski v. Benevolent Society, 29 Mo.App. 337; Joyce v. Branson, 73 Mo. 28. (8) We concede that the advice of counsel may rebut the presumption of malice, but in order to have such effect it must appear affirmatively, as stated in our objection, that all the facts bearing on the question were communicated to the counsel and that the party acted upon such advice in good faith Sharpe v. Johnston, 59 Mo. 557, 577. It is decided that where a defendant in a case involving an issue of malice seeks to avail himself of the advice of counsel as a defense, it must appear that such counsel was disinterested. White v. Carr, 71 Me. 555; 3 Lawson's Rights & Remedies, sec. 1096 (p. 1886); Newell on Malic. Pros., p. 14; 21 Am. L. Reg. (N. S.) 588; 12 Cent. L. J. 457, 463.

Judson & Taussig for respondents and appellants.

Defendants have taken their cross appeal in this case, not for the sake of saving the costs, but in order that the legal positions for which they contend may be fully presented before this court, as their determination involves an important precedent for the future government of the Exchange and like institutions in the State. Defendants contend that while there was no error in the rulings of the circuit court in so far as it held that plaintiff was entitled to only nominal damages, yet that there was error against defendant in holding that there was a right of recovery for nominal damages. In other words, the court should have directed upon the undisputed facts, a verdict for defendants. Considering these positions in their order, we submit:

(1) Even upon the theory that the admitted facts showed a right of action in plaintiff, there was no evidence warranting the recovery of more than nominal damages: First. The attorney's fees paid by plaintiff in his litigation over the smoking regulation and right of suspension for nonpayment of fine were not recoverable. 1 Sedgwick on Damages [8 Ed.] secs. 234-236; Haeussler v. Bank, 23 Mo.App. 282; Roberts v. Mason, 10 Ohio St. 277-282; St. Peter's Church v. Beach, 26 Conn. 355; McDaniel v. Crabtree, 21 Ark. 431-434; Brown v. City of Cape Girardeau, 90 Mo. 377. Second. There was no evidence of malice. The testimony as to advice of counsel was properly received. The fact that the counsel consulted was one of the three thousand members of the Merchants' Exchange was no objection. Greenleaf on End. [15 Ed], sec. 331-333. Third. There was no basis whatever for the recovery of compensatory damages for wounded feelings. Connell v. W. U. Tel. Co., 116 Mo. 34; Spohn v. Railroad, 116 Mo. 633; Strange v. Railroad, 61 Mo.App. 592. (2) But not only was the court below correct in limiting plaintiff to nominal damages, but it erred in plaintiff's favor and against defendants in holding that he had any right of recovery at all. (a) Defendants having the chartered power to suspend or expel any member of the Exchange for misconduct, they are thereby constituted by the State a corporate court invested with general jurisdiction over finances, and they, therefore, acted judicially in determining that plaintiff's refusal to pay the fine imposed for disorderly conduct under the corporate by-laws was corporate misconduct. Gregg v. Mass. Med. Soc., 111 Mass. 185; Barrows v. Mass. Med. Soc., 12 Cushing, 402; Com. Dig., heading "Courts;" Rex v. Richardson, 1 Burr. 517; Black and White Smiths' Ass'n v. Vandyke, 2 Wharton, 309; People v. Chicago Board of Trade, 80 Ill. 134; People ex rel. Page v. Chicago Board of Trade, 45 Ill. 113; Dickenson v. Chamber of...