Edelman v. Wells

• Decision Date: 06 June 1922
• Docket Number: No. 17623.,17623.
• Citation: 242 S.W. 990
• Parties: EDELMAN v. WELLS.
• Court: Missouri Court of Appeals

242 S.W. 990

EDELMAN v. WELLS.

No. 17623.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Benjamin Edelman against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. W. Bates, T. E. Francis, and G. T. Priest, all of St. Louis, for appellant.

A. Samuel Bender, of St. Louis, for respondent.

ALLEN, P. J.

This is an action for assault and battery, alleged to have been committed upon plaintiff by the conductor of a street car, operated by the defendant in the city of St. Louis as a common carrier, the defendant being sued as the receiver of the United Railways Company. There was a verdict and judgment for plaintiff below for $100 actual and $500 exemplary or punitive damages, and the defendant has appealed.

Plaintiff's evidence shows that, on August 17, 1919, he bearded one of defendant's street cars on what is known as defendant's Park avenue line, at Third street and Washington avenue, in the city of St. Louis, being accompanied by his wife. He secured from the conductor of that car two transfers to be used on defendant's Natural Bridge line, which crossed Washington avenue, on which Park avenue cars ran, a few blocks west of Third street. At the intersection of these two car lines, plaintiff left the Park avenue car, and shortly thereafter boarded a car upon the Natural Bridge line and handed to the conductor thereof his two transfers. He testified that his wife preceded him into the car and he followed her, but that, before he had proceeded very far into the car, the conductor caught hold of him very roughly, turned him about and demanded that he pay his fare; that he told the conductor that he had given him two transfers, whereupon the latter said that the transfers were not good and insisted that plaintiff pay his fare; that when he insisted that he had paid his fare and had received these transfers from the conductor of the Park avenue car but a few minutes prior thereto, the conductor struck him twice in the face with his fist.

Plaintiff's version of ate matter is substantially corroborated by the testimony of passengers on the car. It appears that, though plaintiff made no resistance, the motorman came to the rear portion of the car to assist the conductor; that the car was stopped and defendant's said employés were proceeding to eject plaintiff when he said that he would pay and did pay fare. And there is testimony that plaintiff was struck the second blow after he offered to pay his fare. According to plaintiff's testimony, as a result of the blows which he received, his face was swollen and some of his teeth loosed, causing him pain, and he suffered therefrom and from headache and nervousness for a period of more than a week.

The conductor, testifying as a witness for defendant, denied that he struck plaintiff at all, stating that he merely caught plaintiff by the right arm and the coat collar and turned him around for the...