Perkins v. Missouri

• Citation: 55 Mo. 201
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 January 1874
• Parties: L. R. PERKINS, Respondent, v. MO., K. & T. R. R., Appellant.

55 Mo. 201

L. R. PERKINS, Respondent,

v.MO., K. & T. R. R., Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Henry Circuit Court.

J. Montgomery, for Appellant.

I. After plaintiff had refused to pay the regular fare, the defendant was under no obligation to transport him further, but had the right to eject him from the cars; and any subsequent offer to pay the fare did not affect this right. (O'Brien vs. Boston & Worcester R. R. Co., 15 Gray, 20.)

II. The court below erred in permitting the witness, Carr, to state, against defendant's objections, what passed between witness and the station agent, Berry, about there being no time to get tickets. There was no such issue in the pleadings, and the admission of this testimony had the direct effect of prejudicing the jury against defendant, by showing that defendant's agent was derelict in his duty, and that plaintiff had tried to buy a ticket at the station, and was unable to do so by reason of the agent's negligence.

III. The evidence shows that the injury to plaintiff was by a kick received by him in the face, after he was put off from the cars, and for this the defendant is not liable. The company then ceased to be liable for the acts of its employees, if such acts were beyond the line of their duty, or oppressive. The case of Goddard vs. Grand Trunk Railway, reported in Redfield's Am. Railway Cases, Vol. II, 504, lays down the doctrine, that, if the carrier's servant willfully and maliciously assaults a stranger, the master will not be liable; but the law is otherwise when he assaults one of his master's passengers. Now after Perkins refused to pay his fare and was ejected from the cars, the relation of carrier and passenger no longer existed between defendant and him, and any act of the conductor from that time was his own act, not that of defendant.

IV. The court erred in instructing the jury that they could find punitory damages for plaintiff. (McKeon vs. Citizen's Railway Co., 42 Mo., 79.)

La Due & Vance, for Respondent.

I. If the passenger is assaulted and insulted through the negligence or the willful misconduct of the carrier's servant, the carrier is necessarily responsible. (Goddard vs. Grand Trunk Railroad, Am Law Reg. (Jan. 1871), p. 17; Moore vs. Railroad, 4 Gray, 465; Railroad vs. Finney, 10 Wis., 388; Railroad vs. Vandiver, 42 Penn., 365; Landreaux vs. Bel, 5 La., 434; Railroad vs. Derby, 14 How., 418; Nieto vs. Clark, 1 Cliff., 145; Railroad vs. Blocher, 27 Md., 277; Weed v. R. R., 17 N. Y., 362.)

II. In Kline vs. Central Pacific Railroad, (37 Cal., 400,) it is held, that in a conductor's excluding a person who is not entitled to be admitted or to remain in the cars, the relation of master and servant is as clear and apparent as it is in receiving and providing for those who are entitled to admission. And in the same case it was held, that it was within the general scope of a conductor's authority to remove a person from the cars who was on wrongfully, but that, if in doing so he used unnecessary force or acted wantonly or maliciously, the company would be liable.

III. The damages were not excessive. (Goddard vs. Grand Trunk Railway, supra; Day vs. Woodworth, 13 How., 363.)

IV. The testimony in this case shows, that the company, after the act complained of, still retained the conductor in their employVORIES, Judge, delivered the opinion of the court.

This suit was brought by the plaintiff to recover damages for injuries charged to have been sustained by plaintiff, by the acts of the agents conducting a train of cars of the defendant, in wrongfully ejecting plaintiff from the cars of defendant when he was a passenger thereon. The petition in substance charges, that the defendant is a corporation organized under the laws of this State, and is the owner of a railroad with locomotives and cars thereon, by which it conveys passengers for hire; that on the 11th day of July, 1871, plaintiff got on the cars of defendant being run and used on the line of said railroad, at the town or station of Calhoun, to be carried and conveyed as a passenger to the town of Windsor, situate on said road; that plaintiff at the time paid defendant for such passage and conveyance the sum of fifty-five cents, which sum was received and accepted by defendant; that defendant thereby then received plaintiff into and upon said cars as a passenger and undertook to transport him as aforesaid; that afterwards on said day, when said cars were in motion and had reached a point about one mile distant from Calhoun along the line of defendant's road, said defendant, unlawfully intending to injure plaintiff and to put him to great trouble and expense, wholly neglected and refused to convey plaintiff to the town of Windsor, but caused said cars to be stopped at a point upon the line of said railroad, distant from any dwelling house or regular stopping place on the line of said road, and forcibly and with violence ejected plaintiff from, and refused to let him re-enter, said cars, although plaintiff offered to pay defendant any reasonable additional sum necessary and right, as a compensation for such passage.

The petition alleges, that plaintiff was greatly abused, beat, bruised, choked, kicked and wounded by defendant, the said defendant wrongfully intending him, the said plaintiff, to be put to great trouble and expense; that said defendant so intending caused said cars to move off and leave plaintiff, unattended and weak from his wounds and exhaustion, to make his way to some place of assistance; that by reason of said injuries and wrongful acts plaintiff was put to great trouble and expense, and was damaged in the sum of five thousand dollars, for which judgment is prayed.

The defendant answered, and denied that on the 11th day of July, 1871, the plaintiff got on to defendant's cars and paid the sum of fifty-five cents for his passage to the town of Windsor, as charged in the petition; but avers that on the contrary plaintiff refused to pay his fare, etc. It is then averred in the answer, that at the time stated in the petition plaintiff got on the car of defendant at said town of Calhoun, without having purchased a ticket, and without a pass; and after the train was in motion the conductor of the defendant on said car inquired of him where he desired to go. Plaintiff replied, to Windsor. He was then informed of the regular fare to Windsor, which plaintiff refused to pay; whereupon the conductor ejected plaintiff from the car, using no more force than was necessary for said purpose.

The answer then denies, that plaintiff was in any manner unjustly treated or injured by defendant or its employees in the discharge of their duties, or that he was put to any expense or trouble by any unlawful act of defendant; but charges, that plaintiff was so put off of the cars because of his refusal to pay the full and regular fare from and to the points named; denies that plaintiff was kicked, beat, bruised, choked or wounded, in the act of so putting him off from the cars as aforesaid, or that he was damaged thereby.

The plaintiff replied to this answer, admitting that he got on the car without first paying his fare; but denies all other affirmative allegations in the answer. A trial was had before a jury at the December term of said court for the year 1871. The jury after hearing the evidence, and the instructions of the court, found a verdict in favor of the plaintiff, and assessed his damages at the sum of $3500. The defendant in due time filed a motion for a new trial, which being overruled, it excepted and appealed to this court.

The evidence on the part of the plaintiff tended to prove, that the plaintiff and one Carr, on the 11th day of July, 1871, in the afternoon or evening of said day, went to the town or station of Calhoun on defendant's railroad, in order to take passage from thence to Windsor, another station on said road about eight miles distant; that they got to Calhoun sometime before the train passing in the direction of Windsor arrived; that they had made an attempt to purchase tickets to Windsor, but the ticket agent was busy and they could get none; that the price charged for fare from Calhoun to Windsor was sixty cents when paid on the train, or at least that was what Carr was charged; that the plaintiff had eighty cents in money, but while on the platform just as he got on the cars he lost part of his money, so that after he entered the car he only had thirty cents; that plaintiff and Carr, when the train arrived, went into the car and took seats near together; that the conductor soon came along to collect the fare from passengers; that plaintiff after searching his pockets told the conductor that he had dropped part of his money on the platform, or near the platform, just as he got on the train, and that he only had thirty cents left; that the conductor then pulled the bell rope, telling plaintiff that game had played out; that the conductor seemed at once to get excited. Plaintiff told him not to get excited, that his companion, Carr, had money, and he would get money from him to pay his fare; that Carr then gave the conductor twenty-five cents in addition to the thirty cents given him by plaintiff; that the fare from Calhoun to Windsor was fifty cents or was so contended by plaintiff. The conductor then caught plaintiff by the throat, called others to his aid, pulled plaintiff to the door of the car; that plaintiff resisted, held to the seats and to the door to prevent his being thrown from the cars; that the plaintiff at the door expostulated with the conductor, telling him that, if they would act with a little reason, when the cars were stopped he would get off; that during the scuffle both inside and outside of the door of the car, the conductor struck and kicked plantiff; that the cars were still in motion, and that Carr had offered the conductor, while they were engaged in putting plaintiff off, to pay whatever might be necessary to pay full fare...