Appeal from St. Louis Circuit Court; J. R. Kinealy, Judge.
Action by Caspar Ickenroth against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.
Boyle, Priest & Lehmann and George W. Easley, for appellant. G. N. Fickeisen, for respondent.
GOODE, J.
The petition in this cause contains two counts, of which the first complains of an assault on the plaintiff by the conductor of a street car operated by the defendant company, and the second of an assault by both the conductor and motorman. The second count is as follows: "And for another and further cause of action against defendant, plaintiff states that on the 11th day of November, 1901, he became and was a passenger on the aforesaid car, by boarding the same and paying his fare for transportation; that while plaintiff was so a passenger on said car said conductor, the servant of defendant, willfully, unlawfully, and maliciously assaulted plaintiff, and repeatedly kicked him on the hands and body; that in answer to solicitation on the part of said conductor the motorman of said car, also a servant of defendant, then and there took part in said assault on the plaintiff, and in the course of said assault struck plaintiff on the back of the head with a heavy iron bar, felling him to the ground; that by reason of the blows and kicks inflicted on him as aforesaid plaintiff suffered and will continue to suffer great pain and mental anguish, and was greatly humiliated, to his damage in the sum of $2,500. Wherefore, the premises considered, plaintiff prays judgment against defendant in the sum of $2,500 for actual damages and his costs. And plaintiff further prays judgment against defendant for the further sum of $2,500 as exemplary damages." The answer was a general denial. After the evidence was in, the plaintiff elected to go to the jury on the second count of the petition.
As the issue of this appeal depends on the action of the court below in instructing the jury, the instructions passed on are transcribed. The plaintiff prayed the court to instruct the jury as follows: "(1) The jury are instructed that if you find and believe from the evidence that on the day in question plaintiff became and was a passenger on one of defendant's cars, and that while he was so a passenger on said car he was, without any cause, assaulted by a person in the employ of defendant, and acting as its agent and servant in operating said car as conductor; and if you find from the evidence that in the course of such assault the plaintiff was struck on the hand and kicked, and that such striking and kicking were done by said conductor while acting for defendant as aforesaid; and if you find that plaintiff suffered injury therefrom—then you will find for the plaintiff, and assess his damages at such sum, not to exceed $2,500, as you may believe from the evidence will be a fair compensation to the plaintiff for the humiliation, if any, suffered by him, and the bodily pain and mental anguish, if any, which he suffered and will continue to suffer, and all of which were the direct results of such striking and kicking. (2) If you find for the plaintiff under the foregoing instruction, and you further find from the evidence that the assault
referred to in the foregoing instruction was made by the agent and servant of defendant, and that it was made with malice, then you may assess in favor of plaintiff exemplary damages in addition to the actual damages, not to exceed $2,500. By the term `malice,' used in the foregoing instruction, is not meant mere spite, hatred, or dislike, but it means that condition of the mind which makes a person disregard the rights of others by doing an act without just cause or provocation. (3) If you find from the evidence that plaintiff caused a disturbance on said car, and that the conductor undertook to eject him from the car, then the conductor of said car was justified only in using as much force as was reasonably necessary under the circumstances to eject said plaintiff; and if you find that the said conductor did undertake to eject plaintiff from said car, and that in so doing he used more force than was reasonably necessary under the circumstances, then you will find for the plaintiff." Which instructions the court gave to the jury, and the defendant's counsel excepted.
The defendant, upon its part, prayed the court to instruct the jury as follows: "(1) The court instructs the jury that, if the motorman assaulted and struck the plaintiff without justification, he would be liable in an action against him for all injury he thereby caused the plaintiff, but the defendant is not liable to plaintiff on account of such assault by the motorman, and such assault should not be considered by the jury in arriving at their verdict. (2) The court instructs the jury that they should wholly disregard and exclude from their consideration the evidence which they have heard concerning the assault made upon plaintiff by the motorman with the switch bar, and they should not consider, in arriving at their verdict, any injury plaintiff may have sustained in consequence of being struck on the head by the motorman with the switch bar." Which requests the court granted.
Defendant further asked the following instructions, which were refused: "(1) The court instructs the jury that under the pleadings and the evidence offered by the plaintiff their verdict should be for the defendant on the second count of the petition. (2) The court instructs the jury that the plaintiff has not sued the defendant for wrongfully ejecting or removing him from the car on which he was riding, but he charges in the petition that the employés of the defendant unlawfully assaulted and beat him while he was a passenger on one of the defendant's cars; and if you find from the evidence that the plaintiff, while a passenger on the defendant's car, used violent, profane, or boisterous language, or was guilty of disorderly conduct in the presence of other passengers thereon, and that the conductor attempted to eject and did eject the plaintiff from the car, and in so doing used such force only as was necessary for that purpose, then such acts upon the part of the conductor did not constitute an assault upon the plaintiff, and the verdict of the jury should be for the defendant. (3) The court instructs the jury that if they believe from the evidence that the plaintiff, on the 11th day of November, 1901, while a passenger on one of defendant's cars near Mullanphy street, used violent, boisterous, or profane language or was guilty of disorderly conduct in the presence of other passengers, who were then and there upon said car, then it became and was the duty of the defendant's conductor to remove the plaintiff from the car, and use such force as was necessary for that purpose. (4) The court instructs the jury that in his petition the plaintiff claims damages because of an assault charged to have been committed upon him by the defendant's conductor while he was a passenger on the defendant's car. You are further instructed that if you believe from the evidence that the plaintiff, while a passenger on the defendant's car, used boisterous, violent, or profane language or was guilty of disorderly conduct in the presence of the other passengers then on the car, and that on account of the use of such language, or conduct, the defendant's conductor put plaintiff off the car, or attempted to do so, and that the plaintiff received his injuries complained of in his petition while the conductor was so putting him off the car, then the jury will find in favor of the defendant. (5) The court instructs the jury that if they believe from the evidence that the plaintiff used violent and threatening language to the conductor, and that he at the time held in his hand and used in a threatening manner toward the conductor a dangerous instrument, viz., a crowbar, and if they further believe from the evidence that such conduct upon the part of the plaintiff caused the conductor to apprehend and that he did apprehend that plaintiff was about to do him great bodily harm, and that the conductor, to avoid such apprehended danger, committed the acts complained of by plaintiff in his petition, then the jury should return a...
