Lige v. Chicago, B. & Q. R. Co.

• Decision Date: 04 June 1918
• Docket Number: No. 19033.,19033.
• Citation: 204 S.W. 508,275 Mo. 249
• Court: Missouri Supreme Court
• Parties: LIGE v. CHICAGO, B. & Q. R. CO.

204 S.W. 508

275 Mo. 249

LIGE v. CHICAGO, B. & Q. R. CO.

No. 19033.

Supreme Court of Missouri, Division No. 1.

June 4, 1918.

Rehearing Denied July 5, 1918.

Appeal from Circuit Court, Harrison County; G. W. Wanamaker, Judge.

Action by Frank Lige against the Chicago, Burlington & Quincy Railroad Company.

Judgment for plaintiff, and defendant appeals. Reversed.

This is a suit brought by the plaintiff against the defendant, in the circuit court of Harrison county, to recover damages for personal injuries sustained by him while a passenger upon one of its trains by being assaulted by Bert Burke, another passenger thereon, while in a drunken or intoxicated condition. The plaintiff recovered judgment for $1,000, and the defendant timely and properly appealed the cause to this court. Omitting unessentials the petition reads:

"Plaintiff further states that the defendant, wholly disregarding its duties towards its said passengers, and especially towards this plaintiff, and while plaintiff was so riding on the said ticket purchased as aforesaid, negligently and carelessly, by and through its servants and agents, to it, its conductor and brakeman in charge of said train, permitted one Bert Burke, while drunk and in a condition dangerous to the property and lives of its passengers, to enter its said train at St. Joseph, Mo., and to become a passenger on the same train at St. Joseph, Mo., and to become a passenger on the same train that defendant was carrying this plaintiff to Blythedale, Mo., as aforesaid. And that the defendant by its said conductor and brakeman negligently and carelessly permitted and suffered said Bert Burke, through the negligence and carelessness of its servants, to remain on its train as a passenger, while said Burke was drunk and in a condition dangerous to the property and lives of defendant's said passengers traveling on said train as aforesaid—all of which was in violation of article 7, chapter 30, of the Revised Statutes of Missouri, as aforesaid.

"Plaintiff further states that, while so traveling as a passenger as aforesaid on the railroad of the defendant as aforesaid, from St. Joseph, Mo., to Blythedale, in Harrison county, Mo., on said 30th day of November, 1912, at a point on defendant railroad between Bethany, Mo., and Ridgeway, Mo., and without any fault on the part of this plaintiff, the said Bert Burke aforesaid, while drunk and in a condition dangerous to the lives and property of the other passengers on said train, while he was being carried by defendant, who had knowledge of his condition, unlawfully, wrongfully, and feloniously assaulted this plaintiff, by striking him upon the head with a large iron T-wrench, or stove key, giving to him a dangerous w( find, thereby wounding, injuring, and permanently disfiguring the plaintiff, and causing him great pain, suffering, and humiliation."

Then follows an allegation as to the extent of the injuries, that they were caused by the wrongful acts of Burke and said negligence of the defendant, and prayed judgment for $2,500. The statutes referred to in the petition read as follows:

"Section 1. It shall be unlawful for any person in this state to enter a passenger train or car, kept for the conveying of passengers, intoxicated, or drink intoxicating liquor on said passenger train or car, or to exhibit or carry exposed any intoxicating liquor," wile "on said passenger trains or cars, and every person or persons so doing shall be guilty of a misdemeanor, and fined not less than $5.00 or more than $25.00 for said offense.

"Sec. 2. It shall be the duty of the conductor on every passenger train or car in this state to report to the prosecuting attorney of the counties in which any such offense is committed, together with the name of the person so intoxicated, the date thereof, and the names of three witnesses who have personal knowledge of the commission of said offense, and upon failure to do so within five days thereafter he shall be guilty of a misdemeanor, and fined for each and every offense not less than $5.00 nor more than $25.00.

"Sec. 3. Providing nothing in this act shall be so construed to apply to dining cars or private cars."

Laws 1009, p. 438 (Rev. St. 1909, §§ 4710-4712).

The answer of defendant was as follows: "Now comes the defendant in the above-entitled cause and denies the allegations in plaintiff's petition contained.

"Defendant, further answering, states that sections 4710, 4711, and 4712 of article 7 of chapter 36 of the Revised Statutes of the state of Missouri for the year 1000, to which law reference is made in plaintiff's petition, is unconstitutional, invalid, and of no effect, for the reason that said law exempts from its provisions dining cars and private cars, and for the further reason that said law, when passed during the session of 1909 by the Legislature of the state of Missouri (Session Acts of 1909, p. 438), did not have the subject-matter clearly expressed in the title, as required by section 28 of article 4 of the Constitution of the state of Missouri, and for the further reason that said alleged law is in violation of the Fourteenth Amendment to the Constitution of the United States, in that it abridges the privileges and immunities of citizens of the United States and denies to persons within the jurisdiction of the state of Missouri the equal protection of the laws, and for the further reason that the said alleged law is in violation of section 53 of article 4 of the Constitution of the state of Missouri, and for the further reason that the said alleged law is in violation of section 30 of article 2 of the Constitution of the state of Missouri, and for the further reason that said alleged law is in violation of section 23 of article 2 of the Constitution of the state of Missouri. Wherefore defendant, having fully answered, asks to be discharged, with its costs in this behalf expended."

The following facts are undisputed: Frank Lige, the plaintiff, and Bert Burke, who assaulted him, were perfect strangers, and were passengers on defendant's train from St. Joseph, Mo., to points in Harrison county, on November 30, 1912. Both of them sat in the smoking car of the train. The train left St. Joseph about 10 a. m. It passed through the towns Of Crosby, Helena, Union Star, King City, Ford City, Darlington, Albany, New Hamton, Bowman, and Bethany. Somewhere between Bethany and Ridgeway, Burke picked up an iron T-wrench near a stove in the smoking car and struck Lige on the head, causing a painful wound. The assault was committed without any warning whatever, without any prior threat, or any previous verbal altercation.

Several witnesses for the plaintiff testified that Burke was under the influence of liquor while on the train. Some described him as being intoxicated, others as being drunk, and still others as being under the influence of liquor. One said: "I thought he was intoxicated." Others testified that:

"He was under the influence of liquor;" "he was a little bit intoxicated;" "well, think he had some whisky on him;" "I would judge he was under the influence of liquor;" "I would call him intoxicated;" "he looked to me like he had been on a spree;" "I thought he was pretty drunk;" "he was feeling pretty good, I thought;" "he looked a little full to me;" "he looked like he was intoxicated;" "my opinion was at the time he was rather under the influence of liquor to some extent."

In short, it was the testimony of all the witnesses, including the conductor and brakeman, in the train who saw and knew that Burke was in an intoxicated condition; the attention of the witnesses, some of them strangers to Burke, were attracted to him by his "joshing and talking" and intoxicated appearance. The evidence also tended to show that Burke was intoxicated when he boarded the train at St. Joseph, with his shirt slightly torn, and that his condition appeared to some of the witnesses to grow worse as the train moved on; that, independent of Burke's; intoxication, joshing and talking as previously mentioned, Burke was guilty of no improper conduct whatever while in the train until he suddenly and without cause assaulted the plaintiff as before stated. He did not know, nor had he addressed or threatened, plaintiff prior to that time, but was conversing pleasantly with other parties and having a jolly time.

H. J. Nelson, of St. Joseph, Barlow, Barlow & Kautz, of Bethany, and J. A. Lydick and M. G. Roberts, both of St. Joseph, for appellant. J. C. Wilson and Garland Wilson, both of Bethany, for respondent.

WOODSON, J. (after stating the facts as above).

I. The first contention advanced by counsel for the defendant is that the trial court erred in refusing the demurrer asked by them to the plaintiff's evidence. This contention is divided by counsel into two subdivisions, and each discussed separately upon wholly different grounds. The first contends that the act of the Legislature mentioned in the pleadings is violative of section 30 of article 2 of the Constitution of Missouri and section 1 of the Fourteenth Amendment of the Constitution of the United States, known as the due process clauses, respectively, thereof, in that it is unreasonable and arbitrary, in requiring a conductor of a train to report to the prosecuting attorney every person who is intoxicated, or who takes a drink of intoxicating liquor, or who exhibits intoxicating liquor, on his train, together with the names of three witnesses who have personal knowledge of the facts; and the second contention is that said act of the Legislature violates section 53 of article 4 of the Constitution of Missouri, and the Fourteenth Amendment of the Constitution of the United States, which respectively prohibit the enforcement of any law of the state denying equal rights, or abridges the privileges and immunities of the citizens of the United States. We will dispose of these propositions in the order stated.

Attending to the first: No authority is cited in...