Maloy v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 July 1915
• Docket Number: No. 13204.,13204.
• Citation: 178 S.W. 224
• Court: Missouri Court of Appeals
• Parties: MALOY v. ST. LOUIS, Y. M. & S. RY. CO.

178 S.W. 224

MALOY v. ST. LOUIS, Y. M. & S. RY. CO.

No. 13204.

St. Louis Court of Appeals, Missouri.

July 2, 1915.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

"Not to be officially published."

Action by Jerry Maloy against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. T. Railey, of Jefferson City, N. A. Motley, of Bloomfield, and J. F. Green, of St. Louis, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

ALLEN, J.

This suit was instituted in the circuit court of Butler county, Mo., but on change of venue it went to the Cape Girardeau court of common pleas, where, upon a trial before the court and a jury, there was a verdict and judgment for plaintiff, and the case is here upon defendant's appeal.

The petition is in two counts. The first of these seeks to recover damages, compensatory and punitive, for the alleged acts of the agents and servants of defendant in refusing to accept plaintiff as a passenger upon one of its trains at Poplar Bluff, Mo., and in insulting plaintiff by publicly accusing him of being intoxicated. In the second count a recovery is sought for false arrest and imprisonment, at the instance of defendant's agents and servants, upon a charge of drunkenness. On the morning of October 29, 1910, plaintiff, a farmer residing near Harviell, Mo., went from the latter place to Poplar Bluff, a distance of seven miles, intending to return to Harviell upon a passenger train of defendant leaving Poplar Bluff that afternoon. He spent the day in Poplar Bluff, and admits that he was in several saloons, though he insists that he drank no intoxicants during the day excepting a glass of wine. When the train upon which he expected to return to Harviell arrived at defendant's station at Poplar Bluff, plaintiff was standing upon the station platform, having purchased a ticket to Harviell, and undertook to enter one of the cars. It appears that at this time some drunken men were creating a disturbance upon defendant's platform by yelling or talking in a loud and boisterous manner. They were but a few feet from plaintiff as he approached the steps of the car which he intended to enter, and there is evilence that plaintiff himself was talking in a loud and boisterous manner, though he denies this. While plaintiff was thus attempting to get upon the car, two of the intoxicated men were arrested by a police officer of the city of Poplar Bluff. Plaintiff's evidence is to the effect that thereupon the train auditor, at the direction of the conductor, refused to permit him to enter the car, and pushed him from the steps thereof, that the conductor then directed the police officer to arrest him, and that the officer thereupon toots plaintiff into custody and took him to a police station, where he was detained for a short time and released. Plaintiff testified that he was not intoxicated, and other witnesses testified that he did not appear to be so at the time. Defendant introduced no evidence except a written statement signed by the police officer, who testified as plaintiff's witness. The jury returned the following verdict, viz.:

"We, the jury, find the issues herein for the plaintiff, and we do assess his damages and first count at the sum of two hundred fifty dollars for actual damages, and two hundred fifty dollars for punitive damages."

Judgment was entered on this verdict, it being ordered and adjudged that:

"Plaintiff have and recover of and from the defendant the sum of $500, being the total sum for actual and punitive damages on the first count of plaintiff's petition, together with his costs," etc.

Complaint is made of the giving of plaintiff's two instructions submitting the cause of action sued upon in the first count of the petition. The first of these, which is a long instruction, covering the entire case on the first count and directing a verdict, is in part as follows:

"You are further instructed that if you find and believe from the evidence that the defendant in this case, unmindful of its duties in the premises, and by and through its agents, servants, and employés in charge of said train, and whilst acting within the scope of their employment, refused to accept plaintiff as a passenger on said train, as aforesaid, but on the contrary, unlawfully, wrongfully, and wickedly, and in disregard of plaintiff's rights as a passenger assaulted, pushed, and shoved plaintiff back from the steps leading to the passenger coach of said train, and then and there, in the presence and hearing of plaintiff's friends and numerous and divers persons, insulted and abused plaintiff, and accused plaintiff of a misdemeanor under the ordinances of the city of Poplar Bluff, that is to say, with the offense of being drunk, and that by reason of said acts on the part of defendant's agents, servants, and employés plaintiff was subjected to pain, humiliation, and disgrace, then, and in that event, you will find your verdict for the plaintiff herein in such sum as you find he was damaged by the wrongful acts of the defendant; not exceeding the sum of $2,000 actual damages; and if you find that the acts of the agents, servants, and employés of the defendant were willful, wanton, and malicious,...