Glover v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 17 February 1908
• Citation: 108 S.W. 105,129 Mo. App. 563
• Court: Missouri Court of Appeals
• Parties: GLOVER v. ATCHISON, T. & S. F. RY. CO.

108 S.W. 105

129 Mo. App. 563

GLOVER v. ATCHISON, T. & S. F. RY. CO.

Kansas City Court of Appeals. Missouri.

February 17, 1908.

Rehearing Denied March 2, 1908.

1. CARRIERS — EJECTION OF PASSENGER — ACTIONS — DAMAGES.

Where a passenger is wrongfully ejected from a train by the conductor, without unnecessary force or violence, willfulness, or malice, but in good faith, under the mistaken belief that he is not entitled to ride, he may recover for all the inconvenience, loss of time, labor, and expense incurred by him in consequence of the ejection, but not for mental suffering or humiliation, nor can he recover punitive damages; but, where unnecessary force is used, or abusive or insulting language, malice is presumed, and the rule as to damages is otherwise.

2. SAME — SUFFICIENCY OF EVIDENCE — QUESTIONS FOR JURY.

In an action to recover for ejection from a train by the conductor, evidence held sufficient to take to the jury the issues whether the conductor resorted to unnecessary force or was guilty of insulting language or conduct.

3. SAME — USE OF FORCE.

Where a conductor on a train refused to accept plaintiff's ticket, and threatened to put him off if he did not pay his fare, and laid his hands so heavily on plaintiff as to cause pain and tend to put him in fear of further personal violence, it appearing that no force was necessary, the act was excessive, and would support an inference of malice.

4. SAME — ACTIONS FOR WRONGFUL EJECTION — QUESTIONS FOR JURY.

In an action for the wrongful ejection of a passenger, evidence on the issue whether the ejection was accompanied by insult and abuse held one of fact for the jury.

5. TRIAL — INSTRUCTIONS — ASSUMING FACTS.

In an action for wrongful ejection from defendant's train, in which there was a conflict of evidence as to whether any unnecessary force was used, or any indignity or insult offered to plaintiff, an instruction that the jury, if they found for plaintiff, should consider, in awarding the damages, not only the actual loss, but also plaintiff's wounded feelings and mental suffering, and the humiliation caused him, was erroneous, as assuming facts in issue to have been proved, since plaintiff was not entitled to recover for mental sufferings for an ejection in good faith without needless force or insult or abuse.

6. SAME — CURE BY OTHER INSTRUCTION.

The error in giving such instruction was not cured by the giving of other correct instructions requested by defendant.

7. SAME — ARGUMENT OF COUNSEL — OPENING STATEMENT.

It is error to allow plaintiff's counsel, over defendant's objection, to refer in his opening statement to the jury to a subject about which the jury should not have heard.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by Charles Glover against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Lathrop, Morrow, Fox & Moore, for appellant. W. S. Herndon and Hall & Hall, for respondent.

JOHNSON, J.

Plaintiff sued to recover both compensatory and punitive damages on account of the alleged wrongful act of defendant in ejecting him from one of its passenger trains. The jury returned a verdict in his favor for $500 actual and $500 punitive damages, and defendant, after ineffectually moving for a new trial, appealed from the judgment entered thereon.

On the 4th day of April, 1905, plaintiff purchased of the agent of the Chicago, Rock Island & Pacific Railway Company a "home-seekers' excursion" ticket which entitled him to transportation as a passenger from Trenton, Mo., to Paul's Valley, Ind. T., and return. The route stated in the ticket was over the line of the initial carrier to Kansas City, and thence to Paul's Valley over defendant's railroad. Plaintiff began his journey on the day he bought the ticket. En route he was told by the conductor of one of defendant's trains, on which he was a passenger, that to avoid going over a branch road it would be necessary for him to get his ticket exchanged at Arkansas City, Kan. When the train stopped at that place, he presented the ticket to defendant's agent, who said it was "all right," issued him another ticket and returned to him the original. The new ticket was made out on a form which entitled the purchaser to a round trip from Arkansas City to Paul's Valley; but the agent, by use of a rubber stamp, changed the return trip coupon to read to Kansas City instead of Arkansas City, and further stamped on the back of the ticket the words: "Good to Kansas City, account exchanged." Plaintiff completed his outward journey, and just before starting to return complied with one of the stipulations printed on the ticket, which required him to present it to defendant's agent at Paul's Valley for identification as the original purchaser. As one of the means of identification, he wrote his name on the back of the ticket in the presence of the agent, who wrote his name as a witness to the signature and affixed the stamp of his office thereunder. The ticket thus validated was honored by defendant as far as Newton, Kan., where there was a change of conductors. Shortly after the train left that place, plaintiff offered the ticket to the conductor in charge, who examined it, threw it on the seat, with the declaration that he would not accept it, and passed on. Afterward he returned, and the conversation which ensued thus is related by plaintiff: "He came back after a while, and says: `If you will pay your fare to Kansas City, I will let you ride.' I says: `Most anybody would do that.' He says: `You will have to pay your fare or get off, one or the other.' I showed him the other ticket, * * * the one the Rock Island man gave me. They were both in one package. He says: `I don't care anything about that at all. This is the ticket I am looking after. You will have to pay your fare or else get off.' * * * He never told me anything was the matter. He says, `I won't take it,' and threw it on the seat and went on. * * * He says: `Well, if you will pay your fare, maybe I can give it back to you at Kansas City.' I says: `They told me that once before, but I never got anything back. I wrote to the general passenger agent, and he never answered my letter for quite awhile, and finally he wrote that he would look into the matter, and I never have heard from him since.' He says: `Well, if you don't pay it, I will put you off.'" Plaintiff then asked the conductor to carry him to Topeka, where he had friends; but the request was refused, and, when the train stopped at Peabody, the conductor said, "`You get off here,' and he hit me on the shoulder and says, `If I ain't man enough to put you off, I will get help and put you off.' That is what he said." Plaintiff further said the conductor acted in an angry and threatening manner, that he was a much larger man than plaintiff, and appeared to be in earnest in the threat to use physical force to eject him. Under fear of violence plaintiff obeyed the order to leave the train, and was preceded in his departure by the conductor and brakeman, who carried out his hand baggage and deposited it on the station platform. Counsel for defendant, on cross-examination, attempted to extort the admission from plaintiff that the conductor "merely tapped him on the shoulder," without any purpose of striking him; but plaintiff persisted in the assertion that the conductor did strike him in a way to indicate that more would follow if he refused to obey the order to leave the train. A passenger, introduced as a witness by plaintiff, testified in part: "The conductor asked him what he proposed to do about it. He said that he got the ticket regular, and he proposed to ride on it. The conductor told him that, if he insisted on that, he would have to put him off. He told the conductor that he hardly thought he could do it. The conductor told him that he would call a brakeman to help him. Then he took hold of him (the conductor did), and Mr. Glover asked him to carry him to Topeka, as he had friends there, and would be all right, and that he would go to headquarters and see about the ticket, or that they could. This the conductor refused to do, and insisted that he, with his belongings, would go off at the next station, and the conductor carried his stuff out. I think the brakeman helped him to take the stuff off, and the conductor did take hold of Mr. Glover and put him off." On cross-examination the witness stated: "Q. The conductor never struck Mr. Glover, did he? A. No, sir. Q. You say he laid his hands on him? A. He took hold of him. * * * Q. What did he say when he took hold of his arm? A. He said he would put him off. Q. Did he get off then and there — just at that time? A. He did."

Other passengers, introduced as witnesses by defendant, testified that the manner of the conductor was not threatening or overbearing, but that he was firm in his insistence that plaintiff was not entitled to ride on the ticket and must pay his fare or leave the train. One of these witnesses said: "He [the conductor] told plaintiff that the ticket had the appearance of having been altered, and that he could not accept it for fare, and that plaintiff would have to pay his fare or get off the train, and if he did pay his fare he would give him a receipt for the money, which the company would refund in case the ticket was all right. * * * I might say the passenger did not offer any resistance to the conductor in getting off, and the conductor did not even lay his hands on him at the time he was...