Morris v. St. Louis & San Francisco Railroad Co.
| Decision Date | 20 June 1914 |
| Citation | 168 S.W. 325,184 Mo.App. 65 |
| Parties | LAURA MORRIS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Charles B. Faris, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, Moses Whybark and A. P. Stewart for appellant.
(1) Instruction number one, given on behalf of plaintiff, is erroneous: Because it submitted to the jury a mixed question of law and fact, whether the train employees ejected plaintiff from the train "without any justification or excuse." Boot & Shoe Co. v. Bain, 46 Mo.App 581; Clem v. Railroad, 119 Mo.App. 249; Allen v Transit Co., 183 Mo. 411; Neff v. City of Cameron, 213 Mo. 365. Because it fails to define the terms "without any justification or excuse." No other instruction was given defining these terms, and the jury were left to determine the question of law raised by them without any guidance by the court. Jordan v. Moulding Co., 72 Mo.App. 328. Because it fails to define the word "wilfully." This word is used in this instruction in a technical sense, and its meaning should have been defined Flint-Walling Mfg. Co. v. Ball, 43 Mo.App. 504; Mulderig v. Railroads, 116 Mo.App. 672; Ayers v. Railroads, 124 Mo.App. 422; State ex rel. v. Allen, 132 Mo.App. 113. (2) Instruction number 2, given on behalf of plaintiff, instructs the jury that if they find that plaintiff was wrongfully ejected from the train and that said ejection was done by "unnecessary force" and with abusive or insulting language, then the jury could take into consideration in estimating her damages all inconvenience she sustained in consequence of such wrongful act, and also allow her for her mental suffering and humiliation, if any, in a sum not to exceed $ 1000. This instruction does not comport with the petition. The petition states that if the agents of defendant in a "wilful, wanton, rude, boisterous, disgraceful and insulting manner drove and ejected" plaintiff off the train they should find the issues for the plaintiff. There is no allegation in the petition of any force used, and the incorporation of the term "unnecessary force" was not sanctioned by it. Sedalia Gas Light Co. v. Mercer, 48 Mo.App. 644; Koenig v. Union Depot Ry. Co., 173 Mo. 698; Nugent v. Kauffman Milling Co., 131 Mo. 241; Sparks v. Dispatch Transfer Co., 104 Mo. 531; Merrett v. Poulter, 96 Mo. 237. Issues cannot be tendered by the evidence in the case. State ex rel. Nunnelee v. Horton Land and Lumber Co., 161 Mo. 664. The mere fact that the collector took hold of the plaintiff and turned her around and pushed her so that she went down the steps, no injury being done, was not under the circumstances unnecessary force--he was refusing to admit her on the train. (3) The instructions attacked warranted the jury in awarding the plaintiff, a married woman, damages for the impairment of her ability to perform domestic service to the family, and all other damages she may have sustained by reason of the train collector forbidding her to enter the train, and the jury awarded her $ 500 damages, although the act was done in the presence of her husband and she was caring for him at that time. R. S. 1909, sec. 8309; Blair v. Railroad, 89 Mo. 334; Plummer v. Trost, 81 Mo. 425; Clow v. Chapman, 125 Mo. 101; Plummer v. City of Milan, 70 Mo.App. 598; Kirkpatrick v. Railroad, 129 Mo.App. 524; Nelson v. Railroad, 113 Mo.App. 659. (4) Loss of earnings is a special damage that must be specially pleaded and proved. Her services as housekeeper for her family belong to her husband, and in claiming damages for loss of the last mentioned services it devolved on the plaintiff to show affirmatively that she was entitled to such damages. Her omission to introduce evidence on this issue constituted a failure of proof. Snickles v. St. Joseph, 155 Mo.App. 308; Nelson v. Railroad, 113 Mo.App. 659. (5) The plaintiff was living with her husband, and not separate and apart from him, and therefore he was entitled to her earnings. Smith v. Railroad, 119 Mo. 246; Becker v. Lincoln Real Estate Co., 118 Mo.App. 74. (6) There was no physical injury inflicted on the plaintiff, and she therefore cannot recover any compensatory damages on account of mental anguish, and especially not $ 500, the amount found by the jury in this case. Spohn v. Railroad, 116 Mo. 617; Trigg v. Railroad, 74 Mo. 147; Boling v. Railroad, 189 Mo. 219. (7) The trainmen were not guilty of malicious or insulting conduct toward plaintiff, but they honestly believed that her husband was intoxicated; and she, having beer bottles in her hand, attempting to get on the train, was guilty herself in assisting him, and that being the case she could not recover for mental anguish under the facts in this case. Smith v. Railroad, 122 Mo.App. 85; Bouillon v. Gas Light Co., 148 Mo.App. 462; Connell v. Tel. Co., 116 Mo. 34; Voss v. Bolzenius, 147 Mo.App. 375; Smith v. Railroad, 127 Mo.App. 53; Spohn v. Railroad, 116 Mo. 617; Bolles v. Railroad, 134 Mo.App. 696; White v. Railroad, 132 Mo.App. 339; Glover v. Railroad, 129 Mo.App. 563. (8) Under the authorities cited under points 6 and 7, the court erred in refusing instruction number 8, asked by defendant, and the damages assessed by the jury are excessive for the same reason.
Ward & Collins for respondent.
(1) Instruction number 1 requires the jury to find that plaintiff was a passenger and had boarded the train and then makes it the defendant's duty "to accord plaintiff respectable, kind and courteous treatment and to well and safely carry plaintiff from Hayti to St. Louis." That is clearly the law in this State. Grayson v. St. Louis Transit Co., 100 Mo.App. 71; Fabor v. Railroad, 116 Mo. 91; Eads v. Railroad, 43 Mo.App. 536; McLain v. Railroad, 131 Mo.App. 739; Boling v. Railroad, 189 Mo. 238; Smith v. Railroad, 127 Mo.App. 53; Keen v. Railroad, 129 Mo.App. 307. (2) Where the conductor employs unnecessary force or violence to remove the passenger, or where he assaults him with abusive or insulting language, malice will be presumed, and in such case the passenger is entitled to damages on account of his outraged feelings and humiliation and also may recover punitive damages. Glover v. Railroad, 129 Mo.App. 571; Smith v. Railroad, 122 Mo.App. 88; White v. Railroad, 132 Mo.App. 345; Wilson v. Railroad, 160 Mo.App. 659; Harlers v. Electric Ry. Co., 123 Mo.App. 28; Smith v. Railroad, 127 Mo.App. 60; Voss v. Bolzenius, 147 Mo.App. 380; Bowles v. Railroad, 134 Mo.App. 750; Boling v. Railroad, 189 Mo. 238; Hickey v. Welch, 91 Mo.App. 4.
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 five hundred dollars, 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, Missouri, 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 whiskey 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 whiskey 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 whiskey 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: Plaintiff says that the conductor then asked her what she had in her hands,...
To continue reading
Request your trial