Dwyer v. St. Louis Transit Company

• Decision Date: 15 November 1904
• Citation: Dwyer v. St. Louis Transit Company, 108 Mo. App. 152, 83 S. W. 303 (Mo. App. 1904)
• Parties: DWYER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

83 S.W. 303

108 Mo.App. 152

DWYER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 15, 1904

Appeal from St. Louis City Circuit Court.--Hon. Horatio D. Wood Judge.

AFFIRMED.

Judgment affirmed.

Boyle Priest & Lehmann and George W. Easley for appellant.

(1) The court erred in overruling defendant's objection to the introduction of any evidence. The petition nowhere alleges any authority upon the part of the conductor conferred by defendant, or that it is within the scope of his authority to cause the plaintiff's arrest. Grayson v. St. Louis Transit Co., 100 Mo.App. 72, 71 S.W. 730. (2) The court erred in the first instruction given for plaintiff in the following particulars: In submitting to the jury that defendant, through its conductor on said car mentioned in evidence, acting within the scope of his authority instituted the proceedings against the plaintiff, set forth in the petition. There was no evidence that he was acting within the scope of his authority when he instituted the proceedings against the plaintiff. He had left the defendant's car and gone to the police department. The relation of carmen and passengers ceased as soon as the plaintiff left the car. Railroad v. Boddy, 105 Tenn. 666, 58 S.W. 646. There should certainly be some testimony or some circumstance to show that the authority had been conferred for such a departure from the line of business of a conductor, as to leave his car and go to police headquarters for the purpose of lodging a charge. Lezinsky v. Railway, 88 F. 437; 4 Am. Neg. 596; State v. Hancock, 73 Mo.App. 19. (3) The first, second and third paragraphs of the first instruction which refer the jury to the pleadings, to-wit, the petition, to ascertain what the prosecution was for. When you look to all the allegations of the petition, it is silent as to whose peace was charged to have been disturbed, or what the charge was, except in the general terms of a disturbance of the peace. Grant v. Railroad, 25 Mo.App. 227; Butcher v. Death, 15 Mo. 274; Shaw v. Dairy Co., 56 Mo.App. 526; Proctor v. Loomis, 35 Mo.App. 488; Flieshmann v. Miller, 38 Mo.App. 181. (4) The court erred in instructing the jury to find compensation to him "for any shame, mortification, mental anguish and pain and injury to his feelings which they may believe from the evidence was suffered by him." Swan v. Railroad, 116 Mo. 633; Connell v. Tel. Co., 116 Mo. 46, 22 S.W. 345; Deming v. Railway, 80 Mo.App. 152; State v. Workman, 75 Mo.App. 454. (5) The court erred in allowing the plaintiff by the first instruction to recover punitive damages without proof of express malice. Ruth v. St. Louis Transit Co., 98 Mo.App. 18, 71 S.W. 1055.

H. Chouteau Dyer for respondent.

(1) The petition states a cause of action. Grayson v. St. Louis Transit Co., 100 Mo.App. 60, 71 S.W. 730; Ruth v. St. Louis Transit Co., 98 Mo.App. 1, 71 S.W. 1055; Boogher v. Life Assn., 75 Mo. 319. (2) "The relation of passenger places the carrier under the obligation to carry the passenger safely and properly and treat him respectfully, and holds him responsible for the conduct of his servants to whom he intrusts the performance of his duty. He is bound to protect his passengers from violence and insults by strangers and copassengers and a fortiori against the violence and insults of his own servants." Farber v. Railroad, 116 Mo. 81, 22 S.W. 631; Snyder v. Railroad, 60 Mo. 413; Eads v. Railroad, 43 Mo.App. 536. (3) During this whole occurrence the conductor of the car was acting as such and was endeavoring to enforce a supposed right of his employer. As an agent and servant of the corporation by which he was employed, he was engaged in the corporation's business and from the necessities of the case became and was an integral working force of the corporation acting in the line of his duty and binding his principal by his acts. Canfield v. Railroad, 59 Mo.App. 363; Meade v. Railroad, 68 Mo.App. 92; Railroad v. McKee, 99 Ind. 519. (4) "The whole power and authority of the corporation is pro hac vice vested on the conductor in his relation to the passenger, and the conductor is to be considered the corporation itself." Randolph v. Railroad, 18 Mo.App. 609; McGinnis v. Railroad, 21 Mo.App. 399; Tanger v. Railway, 85 Mo.App. 28. (5) The evidence showed that the conductor was engaged in the performance of his duty when he caused and procured respondent's arrest; that he was in charge of appellant's car all the while and was engaged in no other business. Haehl v. Railroad, 119 Mo. 340, 24 S.W. 737. (6) That part of the first instruction authorizing the jury to compensate respondent "for any shame, mental anguish and pain and injury to his feelings," which they might believe from the evidence was suffered by him was proper. Sedgwick on Damages (8 Ed.), secs. 458, 459; Chamberlain v. Chandler, 3 Mason 246. (7) Damages for mental pain are compensatory. Craker v. Railroad, 36 Wis. 675; Cherry v. Railroad, 51 Mo.App. 316; Smith v. Railroad, 23 Ohio St. 10; McKinley v. Railroad, 44 Iowa 314. (8) The want of probable cause in this case is shown prima facie by the discharge of the accused and with nothing introduced as evidence by the appellant would authorize the matter to be submitted to the jury. If want of probable cause is made out the question of malice is disposed of. Stubbs v. Mulholland, 168 Mo. 62, 67 S.W. 650. (9) That part of the first instruction authorizing the recovery of punitive damages was proper. The first instruction particularly tells the jury that, "if they believe from the evidence that said alleged act or acts of the defendant were done wantonly, maliciously, and in gross disregard of plaintiff's rights as a passenger on said defendant's car, if they so find and believe him to be (and if they think just and proper in view of all the facts and circumstances in evidence), to award to plaintiff punitive damages." The jury must have found under this part of the instruction and the whole evidence clearly warranted the finding that there was express malice. Hicks v. Railroad, 68 Mo. 329; Malecek v. Railroad, 57 Mo. 17; Doss v. Railroad, 59 Mo. 27.

OPINION

BLAND, P. J.

On April 16, 1903, the plaintiff, at Chestnut and Fourth streets, in the city of St. Louis, took passage on one of defendant's Eighteenth street cars to go to the Four Courts, in said city, where he had been subpoenaed to appear as a witness. He paid his fare but remained on the rear platform smoking a cigar. When the car reached Ninth street, the conductor demanded fare of him. Plaintiff replied that he had paid his fare when he first got on the car. The conductor insisted that he had not and told him he would have to pay his fare or get off. Plaintiff refused to pay a second fare or to get off. The altercation was not in angry tones but was heard by passengers sitting in the rear of the car. When Eleventh street was reached, plaintiff undertook to get off, but the conductor barred his way and told him he must pay his fare. Plaintiff insisted that he had paid his fare once and would not pay it again. The conductor then called a police officer, who was sitting inside the car, and told him that plaintiff would not pay his fare and he wanted him arrested. The officer told the conductor he would not arrest plaintiff unless he (the conductor) would make a formal charge against him. The conductor said he would do that and when the Four Courts building was reached, the policeman and the conductor got off the car followed by the plaintiff and his friend. Plaintiff, in company with his friend, started to go up the steps of the Four Courts to the court of criminal correction, but was stopped by the police officer who told him he would have to go before the captain (meaning the captain of the police district in which the arrest was made). The four then went into the police station where the conductor lodged with the captain of police a formal charge against plaintiff of disturbing the peace, and the plaintiff was then offered the alternative of giving bond with security, in the sum of five hundred dollars, for his appearance before the police court on the eighteenth day of April to answer the charge the conductor had made against him or be committed to prison. Plaintiff gave bond and on the eighteenth appeared before the police court and after entering his plea of not guilty, was put upon trial which resulted in his acquittal.

The charging part of the petition is as follows:

"Plaintiff states that while said car, in charge of said conductor, was proceeding south on said Ninth street to Clark avenue, and thence west on said Clark avenue to a point in the middle of the block between Eleventh and Twelfth streets in said city said conductor, in charge of said car, continued to demand of plaintiff a fare of five cents in loud, angry and threatening tones of voice, in the presence and hearing of many people in and upon said car; that when said car reached said last above-mentioned point, it was ordered stopped by the said conductor in charge of the same, and said conductor falsely maliciously and without probable cause whatsoever, at his own instance and request caused and procured plaintiff to be arrested by said police officer aforesaid against plaintiff's will and in the presence and hearing of many people in and upon and about said car, to the great humiliation and mortification of plaintiff; and said police officer upon the instigation and demand of said conductor, in charge of said car, then and there arrested plaintiff and took plaintiff to the police station in the Four Courts and said conductor then and there willfully, maliciously and without probable cause whatsoever charged plaintiff with disturbing the peace and then and there caused a...