Distler v. Missouri Pacific Railway Company

• Decision Date: 13 May 1912
• Parties: FRANK DISTLER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

147 S.W. 518

163 Mo.App. 674

FRANK DISTLER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 13, 1912

Appeal from Cole Circuit Court.--Hon. W. H. Martin, Judge.

AFFIRMED.

Cause affirmed.

C. D Corum for appellant.

J. G Slate for respondent.

OPINION

BROADDUS, P. J.

This is an action for damages by plaintiff based on the ground that he was wrongfully ejected from defendant's passenger train. The facts are that on November 8, 1910, plaintiff and his wife bought tickets for transportation from Jefferson City to Ewing Station, and boarded what was known as the "Capital City Express."

Plaintiff's evidence is to the effect, that he did not know that said train was not scheduled to stop at Ewing Station, but that when he and his wife presented their tickets they were directed by one of defendant's servants to enter one of the cars in the train. Before reaching their destination, the conductor, after having ascertained that their destination was Ewing Station, put them off. That he said to plaintiff "How in the hell came you to get on this train," and "you ought to know better," and "it will never happen again," and "you may call yourself damn lucky for getting this far;" that the conductor was angry and discourteous and hallooed to the brakeman to come and put them off; that his conduct had everybody on the car aroused and looking at plaintiff and his wife; and that the train was stopped about one-half a mile short of the station of Ewing on a curve and high dump where they were ejected.

The defendant's evidence was to the effect that the conductor's treatment of plaintiff and his wife was courteous and considerate.

In the original petition filed by plaintiff he made no claim for punitive damages, but he amended his petition before trial claiming such damages. The answer of defendant was a general denial. The court in an instruction limited plaintiff's right to recover actual damages to a nominal sum.

The court gave on behalf of plaintiff the following instructions: "The court instructs the jury that if you find from the evidence that the plaintiff, Frank Distler, on November 8, 1910, purchased of defendant a ticket for the purpose of being carried as a passenger over defendant's railroad from Jefferson City, Missouri, to Ewing Station, Missouri, and that defendant then and there received plaintiff on its train as a passenger as aforesaid, and that defendant by its servants or agents ejected plaintiff from its said train before reaching his destination, then such act on the part of defendant was unlawful, and the jury must find for plaintiff.

"The court instructs the jury that although you may believe that the train upon which plaintiff was allowed to enter was not, under the rules of the company, allowed to stop at Ewing Station, Missouri, yet, if you believe from the evidence that defendant by its servants or agents directed plaintiff to board said train, and that before reaching his destination the servants or agents of defendant ejected him from said train, then you are bound to find for the plaintiff.

"The court instructs the jury that if you find for the plaintiff you will assess his actual damages at a nominal sum; and you are further instructed that if you believe from the evidence that the plaintiff was put off the train before reaching Ewing Station, and that the conductor in the presence of passengers used profane and insulting language toward the plaintiff at the time of putting him off, then you may add such amount as you may believe the circumstances justify in the way of punitive or exemplary damages, provided you believe he was willfully and maliciously ejected from said train, said damages not to exceed the sum of five hundred dollars.

"'Maliciously' means the intentional doing of a wrongful act without just cause or excuse."

The following instructions were asked by defendant and refused by the court. "The court instructs the jury that plaintiff is not entitled to recover any exemplary or punitive damages.

"The court instructs the jury that you cannot allow anything in this case for anxiety, mental, suffering, humiliation or injury to his feelings; nor can you assess any damages in this case by way of punishment to the defendant."

The jury returned a verdict...