Bolles v. Kansas City Southern Ry. Co.

• Decision Date: 11 January 1909
• Citation: 134 Mo. App. 696,115 S.W. 459
• Parties: BOLLES v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

115 S.W. 459

134 Mo. App. 696

BOLLES v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

1. TRIAL (§ 234) — DIRECTION OF VERDICT — REQUISITES OF INSTRUCTON.

An instruction which authorizes a verdict for a party must cover the whole case, and not single out only certain facts which may tend to establish one side or the other, and it should declare the law applicable to the facts contended for, and submit the case to the jury upon the theory of both parties.

2. CARRIERS (§ 355)—PASSENGERS—TICKETS— VERDICT STATED.

A passenger must deliver his ticket on the conductor's demand, and, if he fails to do so within a reasonable time, he may be ejected.

3. CARRIERS (§ 382) — PASSENGERS—WRONGFUL EJECTION—DAMAGES.

If a conductor was unreasonably peremptory in demanding a passenger's ticket and would not give him time to find it before ejecting him, the ejection was wrongful, entitling the passenger to recover his actual damages, and, if it was accompanied by unnecessary physical force and insulting language or either, plaintiff was entitled to punitive damages.

4. TRIAL (§ 253)—INSTRUCTIONS.

In an action against a railway company for ejecting a passenger, an instruction that if the passenger, believing that the agent had not given him his tickets, and after telling the conductor of such belief, left the train at the conductor's suggestion, he could not recover, was properly refused for failing to refer to the hypothesis that if, while the passenger was leaving the train voluntarily, the conductor assaulted him and used insulting language, plaintiff could recover both actual and punitive damages.

5. CARRIERS (§ 382)—PASSENGERS—EJECTION —DAMAGES.

If a railway passenger, acting on the belief that he had failed to obtain his ticket from the agent, while leaving the train voluntarily was assaulted and insulted by the conductor, he could recover actual and punitive damages, since the

conductor's conduct would be so unwarranted and excessive as to denote oppression and malice.

6. CARRIERS (§ 355)—PASSENGERS—EVIDENCE OF RIGHT TO BE CARRIED—BAGGAGE CHECKS.

A baggage check of itself is no token of a passenger's right to transportation, and, notwithstanding its presentation, the conductor may eject the passenger on his refusal to present a ticket or pay fare.

7. CARRIERS (§ 248) — PASSENGERS—REGULATIONS—REASONABLENESS.

A railroad company can regulate its business by reasonable rules and regulations, and a rule requiring a passenger either to produce a ticket or pay cash fare is reasonable.

8. EVIDENCE (§ 121)—RES GESTÆ.

In an action against a railway company for wrongfully ejecting a passenger who misplaced his ticket, he could show that he exhibited his baggage check to the conductor while the conductor was waiting for the ticket as part of the res gestæ, and as tending to show that the conductor acted hastily in the face of the evidence that plaintiff was acting in good faith, and was not a mere trespasser.

9. DAMAGES (§ 171) — PERSONAL INJURIES — EVIDENCE.

Evidence of plaintiff's pecuniary condition is admissible in an action for personal injury, where the circumstances authorize recovery of punitive damages.

10. CARRIERS (§ 382)—PASSENGERS—EJECTION —DAMAGES.

If plaintiff was rightly required by a railway conductor to leave the train and no physical force was used, the company is not liable in punitive damages.

11. CARRIERS (§ 384)—PASSENGERS—EJECTION —INSTRUCTIONS.

An instruction that even though a railway conductor had the right to eject a passenger at the time and place in question, if the conductor in the course of his employment wrongfully, etc., cursed and abused the passenger, or used rude and insulting language, the company was liable, was erroneous for failing to restrict recovery to compensatory damages, and as in effect authorizing punitive damages, though the passenger was given reasonable time to leave the train, when he was compelled, but without physical violence, and suffered no other injury than verbal abuse.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by John S. Bolles against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

S. W. Moore, Cyrus Crane, Fred H. Wood, and H. C. Clark, for appellant. Pross T. Cross, for respondent.

JOHNSON, J.

This action is for the recovery of actual and punitive damages on account of the alleged wrongful ejection of plaintiff from one of defendant's passenger trains. Verdict and judgment were for plaintiff in the sum of $500 compensatory and $1,000 punitive damages, and the cause is here on the appeal of defendant.

Plaintiff, a painter by trade, and a citizen of Lathrop, Mo., had spent the winter of 1904-05 hunting in the vicinity of Lake Charles, La. He and his companion, the witness Fuller, had captured two alligators and two logger-head turtles, and had resolved to take them north, and to exhibit them for profit. Accordingly they brought their animals and their personal baggage to defendant's station at Lake Charles on May 25, 1905, bought two first-class tickets to Kansas City, checked their baggage, and boarded a passenger train scheduled to depart at about 8.30 p. m. Lake Charles is the terminus of a branch line which leaves defendant's main line at De Quincey, about 20 miles to the north. A plug train is operated on the branch road to connect with passenger trains on the main line. According to the evidence of plaintiff, he and Fuller were hurried in their departure, and, when they bought their tickets of defendant's agent, plaintiff put them in his purse, and they hastened to attend to the checking of the baggage.

Plaintiff testified: "I went in the train and met the conductor there. Just had went in the door, two or three steps down, and never got a chance to sit down. He demanded the tickets. I said, `All right, sir.' I opened my purse. I thought I had put them in the purse, and I opened the purse, and didn't see the tickets. He says, `Hurry up,' says `I am in a hurry.' I says: `Just as quick as I can find them, I will produce them, as soon as I can'; and I looked in the purse, and didn't find them, and it kind of rattled me, and I commenced to hunt in first one pocket and then another; and he says, `Well, if you ain't got any tickets,' says, `get off.' Says: `We are going to stop up here in a few minutes at a crossing, and you can get off when we stop there.' I asked him next, told him I had the tickets, and if he wouldn't give me time to hunt them up, that I had misplaced them some place, but I says, `Give me time, and I will get them.' He says: `You get off at this crossing.' Says: `You are nothing but a damned dead beat and hobo. You never had a ticket.' * * * He just worked me out—kept telling me to hurry up, go on, get to the door, kept pushing backing me up. * * * Fuller came in there and wanted to know what was the matter, and I told him I had misplaced the tickets, and couldn't find them, and he says: `Well, you have got them. I seen you take them.' * * * They slacked down right slow for the crossing and he says, `Come, get off,' and my partner did get off, but I argued the case, that we had to go, that I had all that express on there, and baggage and my business was there, and I had got them. I says: `I have got the tickets, if you will give me time.' * * * He just says: `You can get off. I am in a hurry'—and they pulled on over the crossing, and I kept arguing the case that I had them until the train got in good motion again, and he says, `Get off,' and he kept talking and talking at me, and I says, `Wait a minute, and give me a chance to find them,' and he gave me a shove, and I went down to the ground." This account of the affair is corroborated by the testimony of Fuller. Plaintiff and Fuller walked back to the station—the distance was short—and, when they entered, the agent asked them why they had not gone on the train. Plaintiff replied that the conductor would not give him time to find the tickets, and had put them off. He then opened his purse, and there were the tickets. The purse had two compartments, and plaintiff while on the train had not thought to look into the one in which he had placed the tickets. They left Lake Charles that night at 11 o'clock, and in due time arrived at Kansas City. When the conductor pushed plaintiff off the train, the latter fell in a manner to injure his back. He remained some days in Kansas City, and then went to Lathrop, where he engaged a physician, who treated him for his injury for about two months and charged him $50 for his services. Part of the time plaintiff had to...