Morris v. St. Louis & S. F. R. Co.

• Decision Date: 20 June 1914
• Docket Number: No. 13231.,13231.
• Citation: 184 Mo. App. 65,168 S.W. 325
• Court: Missouri Court of Appeals
• Parties: MORRIS v. ST. LOUIS & S. F. R. CO.

168 S.W. 325

184 Mo. A. 65

MORRIS v. ST. LOUIS & S. F. R. CO.

No. 13231.

St. Louis Court of Appeals. Missouri.

June 20, 1914.

1. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR—INSTRUCTIONS.

Where, in an action for wrongful ejection from a train, there was evidence that plaintiff, though ready to pay her fare, and herself unobjectionable as a passenger, was ejected with insult, an instruction authorizing a recovery if the trainmen willfully and in an insulting manner ejected plaintiff "without any justification or excuse," as defined in other instructions, was not prejudicial to the carrier as submitting a mixed question of law and fact, though the quoted term was not defined in any other instruction.

2. TRIAL (§ 219)—INSTRUCTIONS—MEANING OF WORDS.

An instruction, in an action for the ejection of a passenger authorizing a recovery if the trainmen willfully ejected plaintiff, is not

objectionable for failing to define the word "willfully," used in its ordinary and popular sense.

3. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where the petition, in an action for wrongful ejection of a passenger, merely alleged an ejection accompanied by abusive and insulting language, a charge authorizing a recovery if plaintiff was wrongfully ejected by the use of unnecessary force and with abusive or insulting language was not prejudicial to the carrier because it required the jury to find that the ejection was with unnecessary force and with abusive and insulting language, to justify a recovery.

4. CARRIERS (§ 364)—WRONGFUL EJECTION OF PASSENGER—LIABILITY.

A passenger wrongfully ejected from a train may recover for unnecessary insult and humiliation by abusive language or conduct, though no unnecessary force is employed.

5. CARRIERS (§ 382)—WRONGFUL EJECTION OF PASSENGERS—LIABILITY.

A passenger wrongfully ejected from a train may recover compensatory damages for mental anguish caused by abusive, insulting, and humiliating language accompanying the ejection, though no physical injury was inflicted.

6. CARRIERS (§ 382)—WRONGFUL EJECTION OF PASSENGERS—DAMAGES.

A verdict for $500 for the wrongful ejection of a female passenger, accompanied by abusive, insulting, and humiliating language, will not be disturbed on appeal as excessive.

Appeal from Circuit Court, Pemiscot County; Chas. B. Faris, Judge.

Action by Laura Morris against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellant. Ward & Collins, of Caruthersville, for respondent.

ALLEN, J.

Plaintiff sues for damages alleged to have accrued to her by reason of being wrongfully ejected from a passenger train of the defendant; such ejection being accompanied by alleged abusive and insulting language on the part of defendant's servants. There was a verdict and judgment below for plaintiff in the sum of $500, and the defendant prosecutes the appeal.

On or about March 5, 1911, plaintiff, together with her husband, undertook to take passage upon one of defendant's passenger trains at Hayti, Mo., for transportation as passengers thereon to the city of St. Louis. Plaintiff and her husband lived upon a farm some five miles from Hayti. The train upon which they contemplated taking passage arrived at Hayti about midnight. Plaintiff's husband was very sick and was being taken to St. Louis to a hospital. It appears that he was very weak, and in a state of utter collapse, and perhaps to some extent under the influence of drugs which a physician had administered to him. It seems that on the way to the railroad station plaintiff procured some whisky from a neighbor to give her husband, because of his weakness, but that he could not take and retain any of it, and that plaintiff put a small quantity thereof in a beer bottle, and some water in another such bottle, which she took with her in order to later administer a stimulant to her husband.

It is quite clear that plaintiff's husband was not intoxicated at the time in question, for the testimony is that he had taken no intoxicant, except the little whisky administered to him en route to the station, which he was unable to retain; and his physician testified that for some days prior thereto plaintiff's husband had objected to taking anything containing whisky for the reason that it was nauseating to him.

When the train in question stopped at the station at Hayti, plaintiff and her husband attempted to enter one of the sleeping cars thereof; plaintiff's husband being assisted by plaintiff and a young man who attended them. It appears that the entrance to the sleeping car was closed, and plaintiff testified that one of defendant's servants told her to go forward and enter a chair car and pass through that car into the sleeping car. Plaintiff testified: That she undertook to do this, and that she and the young man with them assisted her husband in getting upon the platform of the chair car; that she was about to enter the chair car when defendant's conductor appeared at the car door and said, "What are you trying to do here?" Plaintiff says that she told the conductor that she was taking her husband to St. Louis to a hospital, whereupon the conductor said: "You are not coming aboard this train; he is drunk." That she stated that her husband was not intoxicated, but sick, and that she wanted to take him back into the sleeping car, but the conductor said: "You can't get on here. I know a drunk man when I see him. What do you take me for? You think I don't know a drunk man when I see one. We have had drunks on all night. And here's where we put you all off." Plaintiff says that the conductor then asked her what she had in her hands, and, when she replied that it was "a little whisky and a little water," the conductor said: "You have got your hands full of beer." Plaintiff testified that the conductor spoke in a loud, harsh voice, and that he took hold of her shoulders with both hands, turned her around, and pushed her down the car steps; that she fell against her husband, who was holding to the hand rail; that, against plaintiff's protests, the conductor took hold of her husband, pulled his hand loose from the rail, and forced all of them from the platform and car steps; that as they were being thus ejected the brakeman came up and, seizing plaintiff's husband, said: "Yes, here's where you all get off. We have had drunks on all night."

It appears, in point of fact, that defendant's servant, whom plaintiff in her testimony referred to as the conductor, was the train collector. He admitted that he refused to permit plaintiff's husband to board the train for the reason that the man seemed to be in a stupor, and the collector thought he was intoxicated. He testified, however, that he told plaintiff that she could take passage upon the train without her husband, if she so desired, but that plaintiff declined to go without her husband, and left the car of her own accord. He denied using the language attributed to him by plaintiff, or that he spoke in a loud or harsh tone of voice.

No point is made in appellant's brief before us that its demurrer to the...