Kennelly v. Kansas City Rys. Co.

• Citation: 214 S.W. 237
• Decision Date: 26 May 1919
• Docket Number: No. 13259.,13259.
• Parties: KENNELLY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

214 S.W. 237

KENNELLY v. KANSAS CITY RYS. CO.

No. 13259.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Peter J. Kennelly against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, and L. T. Dryden, of Independence, for appellant.

Thomas Harley, of Lawrence, Kan., and Casey & Wright, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $1,000 actual and $100 punitive damages, alleged to have been sustained by him as the result of having been shoved from the front platform of one of defendant's street cars by defendant's motorman.

The first complaint is of plaintiff's instruction No. P-4. This instruction does not purport to cover the entire case, but is based upon the measure of damages. After telling the jury under what conditions it might find compensatory damages for plaintiff, it continues:

"And if the jury find from the evidence that such acts of the motorman, if any, were done by said motorman, willfully and without legal justification or excuse or provocation, then the jury may further assess his damages against defendant in such sum as the jury may believe from the evidence will be suitable punishment to the defendant for such wrongful conduct."

It is contended that in view of the way this instruction is worded it is erroneous as allowing punitive damages, for the reason that the jury were told that they might assess such damages if the acts of the motorman were done "willfully and without legal justification or excuse or provocation." In support of this contention defendant cites the case of Dickensheet v. Chouteau Mining Co., 202 S. W. 624. However, the words used in that instruction told the jury that they might find punitive damages if the "casting of said mine water onto and across plaintiff's land by defendant was willful, that is, without legal excuse, or that it was done in reckless disregard of plaintiff's rights or to the discomfort and annoyance which it might cause her in the use and enjoyment of her property." It was held in that case that, owing to the peculiar wording of the instruction, the word "willful" was defined therein as being without lawful excuse, and that to injure a person "without lawful excuse" is the basis upon which compensatory damages are allowed. And it is pointed out in the opinion that the word "willful" is correctly defined as "a wrongful act done intentionally, without just cause." In the case at bar the instruction does not state that the acts of the motorman were done "willfully or without legal justification or excuse or provocation"; therefore, there is no definition of the word "willfully" contained in the instruction such as in the Dickensheet Case, but the word "and" instead of "or" is used. In view of the wording of the instruction in the case at bar, it requires the jury, not only to find that the act of the motorman was "willfully" done, but that it was done "without legal justification or excuse or provocation."

Plaintiff's instruction No. P-1 requires the jury to find that plaintiff was knocked from the car "violently, maliciously, and willfully," and "without any justification or excuse." Plaintiff's instruction No. P-2 told the jury that if the motorman used more force than was reasonably necessary for his own protection in ejecting plaintiff, it might find for plaintiff. Plaintiff's instruction No. P-3 was as follows:

"The court instructs the jury that if your finding is for the plaintiff, then, in assessing his damages you are not limited to the physical injury inflicted, if any, by said wrongful acts, if any, of said motorman, but in addition thereto, if you find that the wrongful acts, if any, of the said motorman were malicious (and by the term `malicious' is not meant spite or ill will, but the intentional doing of a wrongful act without just cause or excuse), you may allow such further damages, known in law as punitive damages, as will be fair and just punishment to defendant, and a wholesome warning to others."

In defendant's instruction No. D-6 the jury were told that by the term "malicious" is meant "wrongful and intentional." Reading all the instructions together, which the jury are required to do, there is no question but that the jury could not have been misled as to what was necessary for them to find in order to assess punitive damages.

It is insisted that plaintiff's instructions assumed that the motorman was acting within the scope of his authority. The case was tried and submitted on both sides on the theory that the motorman was so actting. Defendant requested seven instructions, which were given, each of which assumed that the motorman was acting within the scope of his employment. The case must be decided here on the same theory on which it was tried below.

It is contended that the court erred in not sustaining defendant's peremptory challenge of the juror Kerr. This juror testified upon his voir dire that at one time he had hurt his hand while boarding one of defendant's cars. He said...