Graham v. Pacific R.R. Co.

Citation66 Mo. 536
PartiesGRAHAM v. PACIFIC RAILROAD COMPANY, Appellant.
Decision Date31 October 1877
CourtUnited States State Supreme Court of Missouri

Appeal from Johnson Circuit Court.--HON. FOSTER P. WRIGHT, Judge.

Ewing, Smith & Pope with Thos. J. Portis for appellant.

1. The injury complained of was not committed in a wanton, rude or aggravated manner, indicating oppression, malice or a desire to injure, and therefore the damages should have been compensatory only. Engle v. Jones, 51 Mo. 316; Franz v. Hilterbrand, 45 Mo. 121; Green v. Craig, 47 Mo. 90; Milw. & St. Paul R. R. v. Arms, 1 Otto (U. S.) 489; Fisher v. Goebel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302; State v. Powell, 44 Mo. 436; McKeon v. Citizens R'y Co., 42 Mo. 84; Hamilton v. Third Av. R. R., 53 N. Y. 25; Hyatt v. Adams, 16 Mich. 180; Day v. Woodworth, 13 How. 371; Turner v. North Beach, &c., R. R. Co., 34 Cal. 594; Kennedy v. North Mo. R. R. Co., 36 Mo. 351; Fay v. Parker, 53 N. H. 342; Perkins v. M. K. & T. R. R. Co., 55 Mo. 202; Stillwell v. Barnett, 60 Ill. 219; Brown v. Allen, 35 Iowa 306; Moore v. Crose, 43 Ind. 30; Lucas v. Flinn, 35 Iowa 9; Smith v. Pitts., &c., R. R. Co., 23 Ohio 10; Wallace v. Mayor, &c., of N. Y., 2 Hilt. (N. Y.) 440; Tripp v. Grouner, 60 Ill. 474; Wanamaker v. Bowes, 36 Md. 42; Phil., &c., R. R. Co. v. Quigley, 21 How. 202, 214; Dibble v. Morris, 26 Conn. 416; Dean v. Blackwell, 18 Ill. 336; Peoria Bridge Ass. v. Loomis, 20 Ind. 235; Ously v. Hardin, 23 Ill. 403; Baltimore, &c. R. R. Co. v. Blocher, 27 Md. 277; Hopkins v. A., &c., R. R. Co., 36 N. H. 9.

Conjectural damages are never allowed. Damages must be certain, and not possible, or even probable, to be the subject of recovery. Sedgw. Meas. Dam. 46, 47 (6th Ed.) The verdict was rendered for vindictive and punitory damages, and not merely for compensatory damages, or for conjectural damages, which was erroneous. There is no rule of law that would authorize the jury, under the evidence, to find a verdict for eight hundred dollars. Whalen v. Cent. Church, 62 Mo. 326. The defendant was not liable for the trespass of its said conductor, even if he was guilty of a willful and malicious wrong, unless defendant either authorized or ratified the act of its said conductor, of which there is not the slightest evidence.A. B. Jetmore for respondent.

The damages, as assessed by the jury, are not excessive. In personal actions, the damages are not, strictly speaking, merely compensatory, i. e. for the actual outlay of money, &c., but includes all injuries--manner of expulsion, mental anguish, bodily pain, the violation of personal liberty, expenses for medical attention, &c., &c, Chandler v. Allison, 10 Mich. 460; 11 Mich. 542; 16 Wis. 280; 25 Ind. 321; 5 R. I. 299; 52 Penn. 238; 55 Ill. 185; 39 Ind. 509; 10 Barb. (N. Y.) 621; 53 Penn. St. 276; 48 N. H. 541; 54 Ill. 19; 1 Smith (N. Y.) 415; 2 Greenlf. Ev. §§ 272, 268. Hilliard on Torts 466, § 13. But this court will not interfere unless the damages are clearly excessive, even in cases where exemplary or punitory damages are inadmissible. 2 W. Black. 942; 3 Burr. 184; 4 T. R. 651; Sargent v. 106, 5 Cowen 106; Coleman v. Southwick, 9 Johns. 51; McConnell v. Hampton, 12 Johns. 235-6; Mason 497; Whalen v. St. Louis, K. C. & N. R. R., 60 Mo. 323.

NORTON, J.

This suit was commenced in the circuit court of Johnson county. It was substantially alleged in plaintiff's petition that he had shipped one or more car loads of stock over the defendant's road from Knob Noster station to St. Louis, and in consideration of the freight paid by him to defendant, he was furnished with a “stock pass” from St. Louis to Knob Noster, by defendant; that plaintiff having said pass in his possession, and while the same was in force, was admitted into a passenger car of a train of defendant, bound from the city of St. Louis to Knob Noster; that the defendant, by one of its passenger conductors, having charge of said train, refused to honor said “stock pass” when presented by plaintiff, and refused to transport plaintiff from said city of St. Louis to Knob Noster, and unlawfully, wantonly and willfully did expel the plaintiff from said car in a disgraceful manner, and with contemptuous usage and insulting language, &c., to the damage of the plaintiff in $5,000.

There were two counts in the petition, in substance the same, being but one cause of action. The answer was a general denial of the allegations in the petition. There was a trial by jury, resulting in a verdict and judgment for plaintiff for $800, and a motion for new trial having been overruled, defendant brings the cause here by appeal. The testimony tended to show that the plaintiff had shipped a car load of stock from Knob Noster to St. Louis over defendant's railroad, and had received from defendant a “stock pass” from said city of St. Louis back to Knob Noster; that the plaintiff, while said pass was in force and in his possession, entered a passenger car in what was known as the Washington accommodation train, in charge of conductor Eveland, with intent to go to Eureka, an intermediate station between St. Louis and Knob Noster stations; that, after the said train was under way, the said conductor proceeded to collect passes or fare of the passengers, and, when he came to where plaintiff was sitting, plaintiff offered said “stock pass” which said conductor declined to honor, and stated to the plaintiff that he could not honor the same under his orders, and that plaintiff must pay the usual fare to Eureka, which plaintiff refused to do; that the said conductor then stated to plaintiff that he could not carry him unless he paid his said fare, and that he must leave the car if he did not so pay; that plaintiff refused to pay said fare so demanded, and said conductor stopped said train, and plaintiff got off at Taylorwick station, distant about one mile from the St. Louis stock yards. There was no force employed in expelling the plaintiff from the car. The hour the plaintiff got off of said train was between five and six o'clock in the evening. There was a depot for passengers at Taylorwick station. Plaintiff walked back to the stock yards, where he remained till the following day, when he went west on defendant's train, having purchased a ticket for that purpose. The testimony tended further to show that the weather was cold, with snow on the ground, and that plaintiff, in order to get suitable lodgment for the night, walked back to the stock yards, a distance of from one to three miles; that he was put off the train about dark, was known as a stock dealer, had about $400 on his person, and was made sick by becoming overheated, was feeble and unable to do much for two or three months; that the expulsion of plaintiff from defendant's car was without force, and that the conductor acted under the belief that he was not authorized to receive the pass.

1. RAILROADS: passenger, right of: “stock pass.”
2. ____: ____: ____:

The court gave eight instructions on plaintiff's motion over defendant's objection, the first and second of which are to the effect that, although the jury might believe that the conductor ejected Graham under an honest misunderstanding of an order issued by defendant, yet, if they believe that the plaintiff, being engaged in shipping stock over defendant's road, had received a stock pass from defendant entitling him to ride on the road from St. Louis to Knob Noster, without payment of fare, and that he presented said pass to the conductor in charge of the train which he refused to receive, and then ejected plaintiff, they would find for plaintiff. In the third instruction they were told that it was not necessary that physical force should have been used on the occasion, but that if the pass was in full force, and the conductor refused to honor it, stopped the train and ordered plaintiff to leave the car, and that he left in obedience to the command, that in law it constituted an ejection, and that, under the pass entitling plaintiff to be carried from St. Louis to Knob Noster, defendant was bound to carry plaintiff from St. Louis to any other point between St. Louis and Knob Noster, and that it was no excuse for his expulsion, that he only intended to ride on that train to Eureka, if he was actually on his return trip to Knob Noster.

3. ____: ____: damages, compensatory and exemplary.

We cannot perceive the force of any objection to the above declarations, and the counsel for defendants rely chiefly for reversal on the action of the court in giving, as it is claimed, instructions four and seven, the last mentioned of which is to the effect that, if the offense complained of was willfully committed, then the jury had the right to give damages “as a punishment to the defendent for the purpose of making an example and as a warning to others,” in addition to compensatory damages for the injury. In cases of this kind, when there is no evidence tending to show willfulness or other circumstances of aggravation, the damages should only be compensatory, but when the act is aggravated, and there has been oppression, fraud, malice or willfulness, evincing an intent to injure, damages may be allowed not only to compensate the sufferer, but punish the offender. Franz v. Hilterbrand, 45 Mo. 121. And corporations, like individuals, are liable to exemplary damages when the facts of the case will warrant the jury in finding them. Malecek v. Tower Grove R. R. Co., 57 Mo. 17. In point of fact, however, no such declaration as is complained of by defendant, was given. Upon a careful examination of the record, it appears that instruction seven, on the subject of punitive damages, was refused, and is therefore, not before us. The only instruction given on the part of plaintiff in reference to damages, is as follows: the jury are instructed that, if they find for plaintiff, in assessing his damages, they may take into consideration all the circumstances attending the expulsion of plaintiff from the car of defendant. It is also insisted by counsel th...

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