Gardner v. St. Louis & S. F. R. Co.

• Citation: 117 Mo. App. 138,93 S.W. 917
• Court: Court of Appeal of Missouri (US)
• Decision Date: 13 March 1906
• Parties: GARDNER v. ST. LOUIS & S. F. R. CO.

93 S.W. 917

117 Mo. App. 138

GARDNER v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

March 13, 1906.

1. CARRIERS — PASSENGERS — EJECTION FROM TRAIN.

Though a rule of a railroad required those riding on freight trains to produce tickets, where one was unable to procure a ticket because the station agent had none, but offered to pay fare, his ejection from the train by the conductor was wrongful.

2. SAME—WHO ARE PASSENGERS.

The fact that one had a private arrangement between a railroad company and himself whereby he could ride on freight trains did not render the road's relation to him other than that of a common carrier.

3. DAMAGES—PUNITIVE DAMAGES.

In actions for personal torts, punitive damages cannot be recovered unless the act complained of is both unlawful and wanton or malicious.

4. CARRIERS—EJECTION FROM TRAIN—ACTION —EVIDENCE.

In an action against a carrier for a wrongful ejection from a train, evidence held sufficient to warrant a finding that the conductor was actuated by malice.

Appeal from Circuit Court, Franklin County; R. S. Ryors, Judge.

Action by David N. Gardner against the St. Louis & San Francisco Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

In 1904 plaintiff was a traveling salesman for a wholesale grocery house in the city of St. Louis. His territory was from Pacific, Mo., along the St. Louis & San Francisco Railroad, to Dixon, Mo., in Pulaski county. To enable him to ride on the local freight trains of defendant company, plaintiff procured the following permit from its general manager:

"Permit. (1904) Frisco System. St. Louis & San Francisco R. R. Co. No. 748. Form M. Freight Train Permit. January 4, 1904. On presentation of this permit, accompanied by regular transportation and certificate of agent at point of origin of the trip, conductors of freight trains, authorized to carry passengers, will carry Mr. D. N. Gardner (hereinafter called the `Permit Holder') between points shown on station agent's certificate, form N, on date indicated thereon, unless otherwise ordered. Valid only when countersigned by A. Hilton. B. L. Winchell, Vice-President & Gen. Manager.

"Counter signature: A. Hilton.

"Release. Said permit holder hereby acknowledges that he is advised that trains will not stop at other than their regular stopping places; that passenger coaches will not be provided; that way cars will not be set to station platforms; that sudden jerks and jars are always incident to the operation of freight trains; that no baggage will be handled by the employés of said company on or for such trains; that these trains are not equipped for the carriage of passengers, and do not carry passengers as a common carrier. In consideration of this special permit, said permit holder assumes all risk of accident and injuries to his person or property while on said trains, whether resulting from negligence of said Railroad Company, or otherwise, and agrees that as to said trips, said railroad company shall be deemed a private carrier and not a common carrier; and agrees to and hereby does release, discharge, indemnify and hold harmless said company from and against any claims or demands for such injuries. Executed in duplicate. D. N. Gardner. Witness: R. S. Martin.

"Good until December 31, 1904, unless otherwise ordered."

During the year 1904 the defendant company had posted in all its ticket offices the following rules in respect to carrying passengers on local freight trains:

"Freight train permits and agents' certificates will be required of all passengers carried on freight trains, except as noted below. These freight train permits and agents' certificates are to be used only on such freight trains as under current rules (see current time tables) are permitted to carry passengers. Freight train permits will be issued by the general passenger agent on requests of agents of this company only, and original permits are to be delivered by agents to persons for whom intended after obtaining signature of proper persons to releases on original and duplicate permit. Such signatures must be witnessed by agent of this company. Duplicate permits must be promptly mailed to the general passenger agent. Freight train permits are not valid in any instance unless accompanied by agent's certificate, form 92, and the latter will be issued by agents only upon presentation of a freight train permit properly filled out and countersigned, and also after release on the back of the freight train permit has been signed by the holder. But one certificate will be issued by an agent on one permit at one time. Freight train permits will be mailed to persons desiring to use them. Agents' certificates, form 92, will be obtained by requisition on the general passenger agent, in the same manner as ordinary ticket stock. In issuing certificates to passengers, agents may write both original and duplicate in ink, or use indelible pencil and carbon. Those desiring freight train permits should make application for them to local agents, who will refer all such requests to the general passenger agent. The greatest care should be exercised in filling out certificate, form 92, and all instructions pertaining to freight train permits closely observed. Freight train permits must in all cases be presented to conductors with proper certificates and transportation.

"Exceptions. Freight train permits will not be required to enable passengers to ride on freight trains as follows: On trains Nos. 271 and 272, on the Current River Branch. On trains Nos. 339 and 340, locally between Oswego and Mound Valley. The provisions of this circular will not apply to passengers traveling between local points within the state of Arkansas. Passengers traveling from any point in Arkansas to any point within another state or vice versa, must, however, be provided with freight train permits and agents' certificates. B. L. Winchell, Vice-President and General Manager."

On September 4, 1904, the plaintiff was at Robertsville, in Franklin county, a station on defendant's road, with a grip containing samples, and wished to go to Moselle, a station on defendant's road about six miles west of Robertsville. A local freight train traveling west stopped at Robertsville to discharge some freight, and plaintiff presented his permit to the ticket agent at Robertsville and demanded a ticket to Moselle, offering to pay the regular fare. The agent was out of tickets and told the plaintiff to get into the caboose and show his permit to the conductor, pay his fare, and get a ticket at Moselle, and he thought the conductor...