Baker v. Chicago, B. & Q. R. Co.

• Decision Date: 21 May 1931
• Docket Number: 29008
• Citation: 39 S.W.2d 535,327 Mo. 986
• Parties: J. F. Baker v. Chicago, Burlington & Quincy Railroad Company and Grant Marsh, Appellants
• Court: Missouri Supreme Court

39 S.W.2d 535

327 Mo. 986

J. F. Baker v. Chicago, Burlington & Quincy Railroad Company and Grant Marsh, Appellants

No. 29008

Supreme Court of Missouri

May 21, 1931

Motion for Rehearing Overruled May 21, 1931.

Appeal from Daviess Circuit Court; Hon. Ira D. Beals Judge; Opinion filed at October Term, 1930, March 31, 1931 motion for rehearing filed; motion overruled at April Term May 31, 1931.

Affirmed.

H. B. Pyle, Dudley & Brandom, J. C. Leopard and J. G. Trimble for appellants.

(1) The court erred in refusing to give the instructions in the nature of demurrers to the evidence and peremptories to find for the defendants. (a) There was no evidence of negligence. In actions under the Federal Employers' Liability Act, negligence must be proved -- not inferred. 8 Fed. Stat. Ann. (2 Ed.) 1208; N. O., etc., Railroad v. Harris, 247 U.S. 367. (b) "Push" signifies an intentional, not a negligent act. Plaintiff's opening statement shows he intended the word to charge a malicious assault. Under the Federal Employers' Liability Act there can be no recovery for malicious assault. 8 Fed. Stat. Ann. (2 Ed.) 1208; Davis v. Green, 260 U.S. 349; A. C. L. Railroad v. Southwell, 275 U.S. 64; Dutton v. Railroad, 88 S.E. 263; A. C. L. Railroad Co. v. Dutton, 245 U.S. 637. (c) No cause of action was stated in the amended petition. The most that can be said in behalf of the amended petition is that it undertakes to state two causes of action in one count -- one cause based on negligence and one on malicious assault. Under the Federal Employers' Liability Act there can be no recovery on the assault charge. (d) The testimony of plaintiff was too indefinite, uncertain, evasive and contradictory to permit a judgment. Goransson v. Manufacturing Co., 186 Mo. 306; Sabol v. Cooperage Co., 282 S.W. 429; Connor v. Railroad, 181 Mo. 411. (2) The court erred in permitting plaintiff to amend his petition by inserting the word "push" and in overruling defendants' motions to strike out amended petition and in refusing to grant defendants a continuance. The amendment, if not a complete departure, was a scheme to catch defendants unprepared to meet a charge of malicious assault and a scheme to avoid, if possible, stating himself completely out of court. As the petition stood before amendment, it was based solely upon negligence. The word "push" signifies an intentional act. By the amendment a mixed charged of negligence and intentional assault were made in one count. Defendants announced ready to meet the negligence charge and, after amendment, made affidavit to unreadiness to meet the assault charge. The denial of a continuance was an abuse of discretion. (3) The court erred in overruling defendants' objections to questions calling for the judgment and conclusion of plaintiff as to whether the action of defendant Marsh was negligent or intentional. Witnesses should state facts. It is the province of the jury to draw conclusions and pass judgment. (4) The court erred in giving instructions numbered 1 and 2 at the request of plaintiff. (a) Instruction numbered 1 is erroneous. It is incomprehensible, confusing and misleading. If it has any meaning whatever, it permits assessment of punitive damages -- for crippling, separate and apart from pain, anguish and pecuniary loss. There was no prayer for punitive damages. It is broader than the petition. The Federal Employers' Liability Act makes no provision for punitive damages. 8 Fed. Stat. Ann. (2 Ed.) 1208. If the instruction has any meaning whatever, it allows a duplication of recoveries. If plaintiff has suffered pain of body, anguish of mind and loss of earnings, it was because of the nature of his injury and its crippling character. If plaintiff will suffer pain of body, anguish of mind and loss of earnings in the future, it will be because of the nature of his injury and its permanent crippling character. To allow recovery for the effects and, apart therefrom and in addition thereto, for the cause, is allowing double recovery. To allow for future pain, anguish and loss of earnings and, apart therefrom and in addition thereto, for a permanent injury producing those effects, is permitting a double recovery. 5 Sutherland on Damages (4 Ed.) 5091; N. C., etc., Railroad Co. v. Henry, 158 Ky. 88; C. R. I. & P. Ry. v. Caulfield, 63 F. 399. (b) Instruction numbered 2 is erroneous: It mixes in one instruction two different causes of action -- one for negligence, the other for malicious assault, and permits a mixed recovery for both. The Federal Employers' Liability Act does not permit recovery for a malicious assault. There can be no recovery on a mixed and uncertain statement of a cause of action. There was no proof of negligence upon which to base the instruction. It permits a recovery of punitive damages -- malicious assault, for which the Federal Employers' Liability Act provides no recovery. (5) The verdict is excessive. The slight injuries to the ankle and fibula permanently healed in a short time. There is no evidence that they caused any pain or anguish. The loss of sidewise motion in the ankle was, by the doctors, attributed to the injury to the heel bone. Plaintiff had not attempted to use his foot. The atrophy of the muscles was because of his own act in not using the foot. There was no credible evidence the foot could not be used. The evidence was that its use for a time would be painful. The only explanation for the size of the verdict is that the jurors' passions and feeling of resentment were aroused by the opening statement by plaintiff's counsel. (6) The verdict is the result of passion, prejudice, sympathy and a feeling of anger aroused by the oaths and epithets used by plaintiff's counsel and the statements of an unprovoked, vicious and malicious assault.

Pross T. Cross, L. B. Gillihan and Gerald Cross for respondent.

(1) Plaintiff made a case for the jury, and demurrers were properly overruled. (a) Plaintiff testified that while he was on top of the flat car and on top of several layers of ties which were slick and icy, the defendant Marsh (section foreman) "brushed or pushed by and jostled him off . . . jostled him, causing him to lose his balance and to fall to the ground." Immediately after plaintiff had fallen from the car, defendant Marsh went to him where he sat upon the ground, holding his injured foot, and apologized to him, and said that "he was sorry that he done that, but he didn't aim to do that -- it was an accident that he did that; that it was not intentional." (b) This testimony of the plaintiff stands undisputed and uncontradicted. Neither defendant Marsh, nor any other servant of defendant railroad, took the stand to deny or dispute the truth of plaintiff's evidence. If Marsh did maliciously and intentionally (and criminally) knock plaintiff off this car, then why did defendants not put him on the stand and let him say so. They many times asked plaintiff whether he thought that Marsh did this act intentionally, but never once did they put Marsh on the stand to tell the facts as to whether it was intentional or unintentional. (c) The law presumes that Marsh's testimony would have been favorable to plaintiff. The law is that where a party fails either to testify in its own behalf or to call to the stand witnesses and servants who know the facts, the presumption is that their testimony, had it been introduced, would have been favorable to and corroborated the plaintiff. State ex rel. v. Trimble, 260 S.W. 1000; Kane v. Railroad, 254 Mo. 175; McCord v. Schaff, 279 Mo. 558; Murrell v. Railroad, 279 Mo. 92; Reyburn v. Railroad, 187 Mo. 575; Smith v. Railroad, 282 S.W. 62; Whitmore v. Express Co., 269 S.W. 654; Booher v. Trainer, 172 Mo.App. 376; Willits v. Railroad, 221 S.W. 65; Evans v. Trenton, 112 Mo. 404. (d) Under the evidence, it was clearly a question for the jury as to whether the act of Marsh was a negligent or a malicious one. Instruction 2, for plaintiff, required the jury to find that Marsh "negligently" did the act, before it could return a verdict for plaintiff. (2) Instruction 2 was the main instruction, submitting plaintiff's theory of the case. The most careful reading of that instruction will not disclose error. It states the correct rule of law applying to the case, and it is clear and unmistakable in its language. (3) Instruction 1 was a clear and correct statement of the law. To allow for "crippling," apart from pain of body and anguish of mind and apart from loss of earnings, does not amount to a recovery of punitive damages and a double recovery. "Crippling" is an element of damages, as well recognized as loss of earnings, or pain and suffering. And it is an element in addition to those two elements. Banks v. Morris, 257 S.W. 482; Eberly v. Railroad, 96 Mo.App. 361; Culler v. Railroad, 84 Mo.App. 340. By no stretch of the imagination could the allowance of damages for "crippling" be said to amount to an allowance of punitive damages. (4) Under the law there is no presumption, in the absence of evidence, that an act causing injury was malicous and intentional; but, on the contrary, the presumption would be that the act was unintentional and not malicious. Stuba v. Foundry Co., 270 S.W. 145. (5) The petition only alleged the commission of acts of negligence. It made no charge of the commission of an intentional or malicious act. (a) Appellant's contention that the petition states a cause of action for a malicious and intentional injury, is based solely upon its theory that the word "push" only means and implies a wilful and malicious act. In this contention appellants are not supported by either the dictionary definitions of the word, nor the common understanding and use of the word in general use. The word "push" does not in any sense mean to strike or assault. A push may be...