Murphy v. St. Louis Transit Company

• Decision Date: 21 October 1902
• Citation: 70 S.W. 159,96 Mo.App. 272
• Parties: JAMES M. MURPHY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

70 S.W. 159

96 Mo.App. 272

JAMES M. MURPHY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 21, 1902

Appeal from St. Louis City Circuit Court.--Hon. Selden P. Spencer Judge.

AFFIRMED.

STATEMENT OF THE CASE.

This instruction was given at the defendant's request:

"If the jury find from the evidence that the plaintiff intended to end his journey as a passenger at Sixth street and Washington avenue, and went to the rear platform of the car for the purpose of alighting, and was given reasonable opportunity to alight at that point, but because a controversy arose between the plaintiff and the conductor about the past occurrence of the conductor refusing a transfer to plaintiff, and that the plaintiff remained upon said car for the purpose of continuing the controversy, and that when the car reached Sixth and Locust streets the plaintiff was in the act of alighting and the conductor put his hand upon the plaintiff, pushed him off, and that thereupon the plaintiff again got on the car, struck and assaulted the conductor, then the conductor had lawful right to use such force as was reasonably necessary in resisting the plaintiff to prevent injury to himself; and if, while the conductor and plaintiff were engaged in their struggle and scuffle, the motorman came to the rear platform and the plaintiff struck him or attempted to strike him, then the motorman had the lawful right to use such force as was reasonably necessary to prevent injury to himself in resisting the plaintiff; and if the jury find from the evidence that the alleged assault upon plaintiff occurred substantially under these circumstances, and that neither said conductor nor said motorman used any more force than was reasonably necessary to protect themselves against the plaintiff, then the plaintiff is not entitled to recover for the alleged assaults made upon him."

These two were refused:

"If the jury find from the evidence that the plaintiff went upon the rear platform of the car or of the step thereof for the purpose of alighting therefrom, and that the conductor pushed the plaintiff off the car, and that the plaintiff then got upon the platform of the car, not for the purpose of being further carried as a passenger, but for the purpose of attacking or assaulting the conductor, then the plaintiff became a trespasser in again getting on that car for the purpose, and the defendant's agents in charge of said car had the lawful right to use such force as was reasonably necessary to keep plaintiff off the car or to expel him therefrom, and the defendant is not liable for any damages caused by any assault made upon plaintiff, after he was pushed off the car by the conductor; unless they used more force than was necessary in resisting the attack of plaintiff or in trying to keep him off the car, and in determining whether more force than was necessary was used, the jury should consider all the facts and circumstances in evidence before them."

"Even if the jury do find from the evidence that the allegation of the petition, that when the plaintiff was about to alight from the car at Locust street the conductor 'put his hands on him to shove him off,' is true, then the plaintiff had no right to use any greater force than was necessary to prevent being shoved off, and if the jury further find from the evidence that the plaintiff struck, or struck at the conductor, or in any manner threatened to strike or assault the conductor, and that such assault or threatened assault was not necessary to plaintiff's protection from being shoved off the car, then the conductor had the right to resist such assault, or threatened assault if it appeared to said conductor from the acts of the plaintiff that there was imminent danger that the plaintiff would strike said conductor, and the plaintiff can not recover for any injuries he may have received by the acts of said conductor in resisting such assault provided said conductor used no more force than was necessary in resisting plaintiff."

Judgment affirmed.

Boyle Priest & Lehmann, Geo. W. Easley and Walter H. Saunders for appellant.

(1) The objection to the introduction of any evidence should have been sustained as to the second count demanding punitive damages, because it was identical with the first count demanding actual damages. Trammell v. Vaughan, 158 Mo. 214. (2) The motion to elect offered at the opening of plaintiff's case and again at its close and addressed to both counts of the petition, should have been sustained, because each count contains at least two distinct causes of action, namely, assault and battery, and arrest and malicious prosecution. These causes of action, growing out of the same occurrence, might have been united in separate counts, and therefore the misjoinder could only have been raised by a motion to elect--a demurrer to misjoinder only lying when the causes of action sought to be joined can not be united in either the same or different counts. Burns' Annotated Code, sec. 413, and cases cited; Brown v. Railroad, 20 Mo.App. 427; Mulholland v. Rapp, 50 Mo. 42; Mooney v. Kennett, 19 Mo. 551; Otis v. Bank, 35 Mo. 128. (3) Instruction No. 1 given for plaintiff, authorizing him to recover if a passenger and assaulted upon the car, was erroneous, because not in accordance with the first count of the petition, which contained at least one and probably two other distinct causes of action. The court had no authority to single out one cause. (4) Instruction No. 2 given for plaintiff was erroneous: because, first, a roving commission to assess damages, no limit being fixed; second, it characterized the conduct of defendant's servants as "wrongful." (5) Instruction No. 4 for defendant, refused, should have been given, because on a theory, amply supported by the evidence, that plaintiff had become a trespasser, and had forfeited his rights as a passenger, since he re-boarded the car, after getting on the ground, for the purpose of attacking the conductor. Eads v. Railroad, 43 Mo.App. 536; Raming v. Railroad, 157 Mo. 509; Creamer v. Railroad, 126 Mass. 320; s. c., 31 N.E. 391; Railroad v. Boddy (Tenn.), 8 Am. Neg. Rep. 566. (6) There was neither allegation nor proof that the assault by the motorman upon the plaintiff, a trespasser on the car, was within the scope of his duties, and the company was not liable for such assault, absent such allegation and proof. Raming v. Railroad, 157 Mo. 509. (7) Instruction No. 5, refused, informed the jury that the conductor, under the company's printed rules posted in the car, was justified in refusing the transfer requested by plaintiff some time after he had paid his fare, which refusal originated the controversy eventuating in a fight between them. This rule was reasonable and the instruction should have been given. Woods v. Railroad, 58 Mo.App. 75.

Thomas Morris and J. P. Maginn for respondent.

(1) The defendant filed this motion on the day of trial after the jury had been sworn. If he relied upon the fact that the first count contained incongruous causes of action, or more than one cause of action in one count, he should have taken advantage of it, by a demurrer or by motion to elect. He waived those points if they ever existed by filing his amended answer to both counts. Brownell v. Railroad, 47 Mo. 239; Lincoln v. Railroad, 75 Mo. 27; Owens v. Railroad, 58 Mo. 304; Straub v. Eddy, 47 Mo.App. 189; Lancaster v. Insurance Co., 92 Mo. 460; McKee v. Calvert, 80 Mo. 348; Brinkman v. Hunted, 73 Mo. 178. (2) "When the defendant files an answer and puts in issue the averments of the petition without having previously challenged their sufficiency by demurrer or otherwise, it is too late to do so after the jury is sworn, if the language in the petition is susceptible of a construction that states a cause of action." Duerst v. St. Louis Stamping Co., 163 Mo. 607, and cases cited at page 621. (3) The case of Trammell v. Vaughan, cited by defendant to sustain his first point (158 Mo. 214), is not an analogous case to the case before the court. That was a case of breach of promise of marriage. The several demurrers to the evidence offered by the defendants at the close of the plaintiff's case were waived by the defendants by reason of their introducing evidence to sustain the issues on their part. Ins. Co. v. Frederick, 58 F. 144; Elliott Appellate Practice, secs. 685 and 686; Railroad v. Hawthorne, 144 U.S. 202; Alexandria v. Stabler, 50 F. 689. (4) Defendants, by failing to demur to the evidence at the end of the whole case, admitted that there was not a total failure of proof. James v. Hicks, 76 Mo.App. 108; Alexandria v. Stabler, 50 F. 689; Railroad v. Hawthorne, 144 U.S. 202. "When the verdict is unquestionably for the right party, it will not be disturbed for technical errors." Brown v. Railroad, 20 Mo.App. 427.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

GOODE, J.

--1. Plaintiff's petition states two distinct causes of action in a single count, one for damages on account of an assault and battery committed on him by the conductor and the motorman of a car of the defendant, on which he was a passenger at the time, and the other for his malicious arrest and prosecution at the instance of said servants, their action being subsequently ratified and indorsed by the defendant itself.

This was bad pleading and should have been corrected if defendant had made timely objection to it (Otis v. Mechanics' Bank, 35 Mo. 128) but the motion to require the plaintiff to elect on which cause he would go to trial was not made until after an answer had been filed joining issue on the allegations of the petition and the jury sworn to try the issues thus joined; which was too late,...