Farrell v. St. Louis Transit Co.

• Decision Date: 01 December 1903
• Citation: 78 S.W. 312,103 Mo.App. 454
• Parties: FARRELL, Appellant, v. ST. LOUIS TRANSIT COMPANY, Respondent
• Court: Missouri Court of Appeals

78 S.W. 312

103 Mo.App. 454

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

Court of Appeals of Missouri, St. Louis

December 1, 1903

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

AFFIRMED.

STATEMENT.

Plaintiff on the evening of March 14, 1902, between six and seven o'clock, was a passenger on a car of defendant on his way homeward; at a point beyond Lee avenue on Prairie avenue, the conductor gave an order that the car be vacated by all passengers, which they complied with and walked forward to the first of several other cars ahead, where they were informed by the motorman that he was behind time and would not go on, and the several cars then backed down to the car sheds; with about fifteen other passengers emptied out of these cars, plaintiff proceeded to await the arrival of another car, being still about three-quarters of a mile from his destination. The first car to arrive, in response to a signal, slackened speed but without stopping, and some one of the waiting passengers threw a handful of pebbles against the windows, and as another car arrived five minutes later, some man in the crowd, a stranger to plaintiff, saying, "this car will stop," picked up a rock and as the car was about to pass as the preceding one had, threw it through the car window, whereupon the motorman stopped the car and the group of passengers got on board, and as plaintiff was about to enter, the motorman and conductor accused him of being the man who threw the stone; he denied the charge and pointed out a man going down the street as the responsible party ultimately they permitted him to get on the car, stating they would have him arrested at Newstead avenue, where they sent for a policeman and put him under arrest and the officer accompanied by one or more of defendant's employees, took him to the Grand avenue police station, where he was searched, a charge of disturbing the peace lodged against him, and after detention there less than an hour, he gave bond and was released. On the twentieth of March, 1902, plaintiff was arraigned, tried and found not guilty, in the second district police court of the city of St. Louis, on the charge of disturbing the peace.

Stripped of matters in aggravation consisting of grossly abusive conduct towards him on part of defendant's servants while plaintiff was detained by them, pending the arrival of the officer, and somewhat abridged, the foregoing narrative presents a fair statement of the transaction from which this action for damages for malicious prosecution emanated, and the plaintiff's narrative of which was fully established in all important details by the corroborative testimony of disinterested witnesses. Defendant offered no testimony, and a jury returned a verdict in favor of plaintiff for actual damages in the sum of $ 1,500, and exemplary damages in the amount of $ 1,000. Defendant's motion for new trial was sustained, the court assigning as reasons, the admission of irrelevant and immaterial testimony, the giving of improper instructions and the excessive verdict.

Judgment affirmed.

Paxson & Clark for appellant.

(1) No error was committed by the court in the admission of plaintiff's evidence. The defendant offered no evidence. (2) The verdict under all the humiliating and outrageous circumstances of this case, which stand uncontradicted and practically admitted, is reasonable and just, and the action of the trial court in sustaining the motion for new trial on the ground that the verdict was excessive, was purely arbitrary. McGarry v. Railway, 36 Mo.App. 340; Trauerman v. Lippencott, 39 Mo.App. 487; Brown v. Railway, 51 Mo.App. 192; Canfield v. Railway, 59 Mo.App. 354; State v. Hancock, 73 Mo.App. 19; Baldwin v. Boulware, 79 Mo.App. 5; Edwards v. Railway, 82 Mo.App. 486; Hickey v. Welch, 91 Mo.App. 13; Goetz v. Ambs, 27 Mo. 34; Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547; Fugate v. Millar, 109 Mo. 285; Boggess v. Railway, 118 Mo. 339; Haehl v. Wabash, 119 Mo. 325; Dowd v. Air Brake Co., 132 Mo. 579; Lee v. Knapp, 137 Mo. 385; Hartpence v. Rogers, 143 Mo. 623; Courtnay v. Blackwell, 150 Mo. 245; Stubbs v. Mulholland, 168 Mo. 47; Hoagland v. Amusement Co., 170 Mo. 343.

Boyle, Priest & Lehmann, and Crawley & Jamison for respondent.

(1) There was no evidence tending to show that respondent was in any wise responsible in law or in fact for the prosecution complained of. Cameron v. Express Co., 48 Mo.App. 99; Knowles v. Bullene, 71 Mo.App. 341. (2) Smart money is only allowed when an alleged tortious act is done from an evil motive. Unless the motive is wrong, the act, no matter what its consequences, involves no more than compensatory damages. 1 Sedg. Dam. (8 Ed.), 363; Ruth v. St. Louis Transit Co., 71 S.W. 1060.

OPINION

REYBURN, J. (after stating the facts as above).

The rule of law in Missouri has been announced with incessant repetition, that the function or duty of granting a new trial rests peculiarly and specially within the sound discretion of the trial court, and unless it is manifest and apparent that its judicial discretion has been abused or that injustice has been done, its ruling in that regard will not be disturbed by an appellate court. Kuenzel v. Stevens, 155 Mo. 280; Chouquette v. Railroad, 152 Mo. 257; Lee v. Geo. Knapp & Co., 137 Mo. 385, 38 S.W. 1107; Parker v. Cassingham, 130 Mo. 348, 32 S.W. 487; Bank v. Wood, 124 Mo. 72, 27 S.W. 554; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; McCullough v. Ins. Co., 113 Mo. 606, 21 S.W. 207; Price v. Evans, 49 Mo. 396; Reid v. Ins. Co., 58 Mo. 421; Woolfork v. Tate, ...