Grayson v. St. Louis Transit Co.

• Decision Date: 17 February 1903
• Citation: 100 Mo. App. 60,71 S.W. 730
• Parties: GRAYSON v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

71 S.W. 730

100 Mo. App. 60

GRAYSON v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

February 17, 1903.

STREET RAILWAY—CONDUCTOR—SLANDER OF PASSENGER—ARREST OF PASSENGER— LIABILITY—EXCESSIVE DAMAGES.

1. Plaintiff, while a passenger with his son on a street car, in answer to a question from the conductor, said his son was 9 years of age, whereupon the conductor answered: "You can't give me a stiff like that. He is 14 years old;" thereby charging plaintiff with lying. Held, that the company was not liable.

2. Under the rules of a street car company, giving the conductor authority to call a policeman, the act of a conductor in calling on a policeman to arrest a passenger then on the car is within the scope of his authority, and, if wrongful, the company is liable.

3. Where, as a passenger was descending from a street car, the conductor pushed him off, and at the same moment called on a policeman to arrest him, he had not ceased to be a passenger when the order to the policeman was given, so as to release the company from liability if the arrest was wrongful.

4. Where a street car conductor, acting within the scope of his employment, commits a malicious tort against a passenger, the company is liable to the same extent as an individual would be.

5. A conductor on a street car ordered the arrest of a passenger by a policeman, and he was taken to the station, and, to regain his liberty, was compelled to enter into a recognizance for his appearance on the following day. No one appeared to prosecute him at that time, and, after hearing his statement and the evidence of the policeman, the justice discharged him. Held, that $1,450 actual damages was excessive, and, unless $950 was remitted, the judgment would be reversed.

Appeal from St. Louis circuit court; Seldon P. Spencer, Judge.

Action by William Grayson against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition.

Omitting caption and signature, the petition is as follows:

"Plaintiff states that the defendant is now, and was at the times hereinafter mentioned, a corporation duly incorporated under the laws of the state of Missouri, and as such engaged in the carrying of passengers for hire in the city of St. Louis; that on the 21st day of June the plaintiff was a passenger on one of defendant's cars on Grand avenue, in said city, and with him and under his charge was his son, who was at the time nine years of age, and who was also a passenger on said car, and upon which car at the time was a number of other passengers; that, under the law and ordinances of said city, the fare to be charged by the defendant for passengers was five cents for passengers twelve years of age or over, and one-half that amount for passengers under twelve years of age; that plaintiff gave to the conductor of said car, at the time a servant of the defendant and in charge of said car, ten cents in payment of his own fare and that of his son, and requested the said conductor to give to the plaintiff a one-half fare ticket on account of the surplus fare, to wit, two and one-half cents paid as aforesaid by plaintiff on account of the fare for his said son, whereupon the said conductor asked the plaintiff how old his said son was, to which inquiry the plaintiff replied that he was nine years of age, whereupon the said conductor, in the presence and hearing of other passengers on said car, answered the plaintiff, and said: `You can't give me a stiff like that. He is fourteen years old;' thereby charging the plaintiff with lying, in the presence and hearing of the other passengers, and to the plaintiff's great shame and mortification, and to his damage in the sum of one thousand dollars ($1,000), for which amount he asks judgment against the defendant and his costs. And for further cause of action plaintiff says, the defendant being a corporation and carrier of passengers as aforesaid, that while he was a passenger on said car as aforesaid, with his said minor son, the said conductor of said car, in violation of the rights of the plaintiff, and in the presence of other passengers thereon, did, without cause, cause plaintiff to be arrested by a police officer of said city, and to be taken under arrest by him to the police station of said city, where the plaintiff was required to give bond for his appearance the next day thereafter to answer to the charge made against him by said police officer at the instance of said conductor, and on the next day, to wit, the 22d day of June, 1900, in accordance with said bond given, plaintiff was compelled to appear and did appear at said police court, and was there arraigned and prosecuted upon said charge so made as aforesaid by said officer, and said conductor did then and there appear as a witness in said prosecution of the plaintiff. Plaintiff further says that upon the hearing of the evidence in said cause the plaintiff was at once discharged by the judge of said court, and plaintiff says his said arrest and prosecution was without any just cause, and was an outrage on the rights of the plaintiff, and was malicious on the part of said conductor, and caused the plaintiff great shame and mortification, and pain and injury to his feelings, and mental anguish, and, to his damage in the sum of five thousand dollars ($5,000) actual damages, for which he asks judgment; and also, by reason of the premises, he asks punitive damages in the sum of five thousand dollars ($5,000) against the defendant, and his costs."

The answer was a general denial.

Appellant moved the court to require respondent to elect upon which of the two counts he would proceed to trial, on the ground that the "first count is analogous to slander, and the other to a malicious and false arrest, and that it does not appear upon the proceedings that the two counts arose out of the same transaction." The motion was overruled, and the case proceeded to trial upon both counts. At the hearing appellant offered the following objection to any evidence under both counts of the petition, to wit: "I further object to the introduction of any evidence under the first count of the petition, because it does not allege or show, nor do the words of the colloquium impute to the plaintiff, the commission of any crime, without which words are only actionable when special damages are alleged; because it is not alleged that the words spoken by the conductor were false; because the petition contains no allegation of the sense in which the word `stiff' was used and understood— the transaction amounting to nothing more than an affirmation on one side, and a disaffirmation on the other; again, because mere shame and mortification, unaccompanied by physical injuries, do not constitute a cause of action, being only mental anguish. * * * I wish further to object to the introduction of any evidence under the second count of the petition, for the reason that it is not alleged therein that the defendant authorized the plaintiff's arrest, and for further reason that it is not alleged that the conductor was acting within the scope of his authority in making the arrest, or causing the arrest to be made; because it is not alleged that the defendant had any connection whatever with procuring the plaintiff's arrest; because the act and malice charged are alleged to be the act and malice of the conductor, and not the act and malice of the defendant; because it is not alleged or shown what the offense was for which the plaintiff was arrested."

The evidence is that plaintiff is 57 years old, and resides at No. 1115 South Grand avenue, city of St. Louis, with his family, consisting of four boys and one girl. On June 21, 1900, his youngest boy was 9 years old, and on that day, with this boy, he boarded one of defendant's cars at Chouteau and Grand avenues for the purpose of going north on Grand avenue to Market street, and there taking a downtown car. In respect to what took place on the car, he testified as follows: "I took the forward seat in the car. There were probably half a dozen passengers in the car, and when the conductor came for the fare I gave him a dime, and asked for two transfers at Market street, and a half-fare ticket for the boy. He gave me the transfers, and looked at the boy, and said, `That boy is over fourteen.' I laughed, and said, `Why, this is his birthday. He is nine years old to-day, and I am taking him down to buy him a bicycle.' He passed by me, and said, `You can't give me that stiff,' and went on to the end of the car. I did nothing, but as we neared Market street, when I came to go out, I said, `I am entitled to a half-fare ticket for this boy.' He said, `That boy is over fourteen.' I said, `He is not. He is only nine.' He said, `Well, I am lying, am I?' I said, `If you say he is fourteen, you are.' A policeman got on then, and I forgot to get off. He says, `If you don't look out, I will put you off the car;' and I said, `You dare not do that. I will report you to Mr. Baumhoff as soon as I get to the office.' At that time we got to Laclede avenue, and he pushed me in a rough manner, and asked the policeman to arrest me. * * * He took me by the arm and pushed me off the car, and the policeman had just got off, and he said, `Arrest that man.' The Laclede avenue car was coming along, and I started to take that, and the policeman said, `Where are you going?' I said, `To take the car.' He said, `You are under arrest.' I said, `You are not arresting me, are you?' He said, `Yes, sir.' I said, `What are you going to do with me?'" He further testified that he was taken by the police officer to the police station, where a charge of disturbing the peace was lodged against him by the officer, and where he was held in custody for a short time; that he was released on his own recognizance to appear at 10 a. m. the next day before the police court to answer the charge; that he appeared as required by his recognizance; that the...