Ruth v. St. Louis Transit Co.

• Decision Date: 20 January 1903
• Citation: 71 S.W. 1055,98 Mo. App. 1
• Court: Missouri Court of Appeals
• Parties: RUTH v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 1055

98 Mo. App. 1

RUTH v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

January 20, 1903.

MALICIOUS PROSECUTION—STREET CAR COMPANY—ARREST OF PASSENGER—AUTHORITY OF CONDUCTOR—PROBABLE CAUSE—MALICE —SUFFICIENCY OF EVIDENCE—TENDER OF FARE—DEFACED COIN—ELEMENTS OF DAMAGE — ADMISSIBILITY OF EVIDENCE — PUNITIVE DAMAGES—EXCESSIVE VERDICT.

1. Where the rules of a street car company direct its conductors to call a policeman in case of trouble on the car, a conductor is thereby authorized to cause the arrest of a passenger, and prefer a charge of disturbing the peace against him, so as to render the company liable in an action for malicious prosecution.

2. A street car passenger tendered a defaced nickel, which was all the money he had. The conductor refused to receive it, and proceeded to eject the passenger. On reaching the car door, the passenger offered resistance, and succeeded in preventing his removal. The scuffle caused the lady passengers to scream. There was no fighting, or offer to fight, and the passenger used no violent-language. The conductor called a policeman, and effected the passenger's arrest. A city ordinance punished any person who should disturb the peace. Held, in an action for malicious prosecution, that there was no probable cause for the arrest.

3. After the arrest the passenger was taken by the officer and conductor to the conductor's boss, and the facts related to the latter. The boss had a telephone communication with some one, and then ordered a charge of disturbing the peace to be made against the passenger. On a trial for malicious prosecution, the conductor swore that he had no malice against the passenger. Held, that the evidence was sufficient to take the issue of malice to the jury.

4. Where a passenger on a street car tenders the exact amount of his fare, in legaltender coin, the conductor has no right to refuse to accept it, and eject the passenger, though the coin was so worn as to lead the conductor to honestly believe that it was not a good one.

5. Compensation may be recovered for every injury caused by a malicious prosecution, including loss of time, attorneys' fees paid to procure acquittal or release, and injuries to the feelings and reputation.

6. The refusal of an instruction that an acquittal in the original prosecution does not raise a presumption of malice and want of probable cause is not prejudicial error, where the evidence of both parties shows that there was no probable cause.

7. The evidence warranted an instruction that, if the jury found express malice, they might award punitive damages.

8. Where a teller in the United States subtreasury was permitted to testify as to the appearance, etc., of a coin tendered as car fare, defendant's objection that the evidence was irrelevant and immaterial was too general to require consideration.

9. A party waives an objection to evidence by introducing the same character of evidence himself.

10. In an action for malicious prosecution, it appeared that the only expense occasioned plaintiff was $10 attorney's fee and $3.50 for bond. Plaintiff was a business man, and lost half a day's time. There was no direct evidence that he suffered any pain of mind, or that his reputation was damaged. He submitted to arrest rather than be forcibly ejected from defendant street car company's car. The occasion of plaintiff's ejection was the tender of a coin so worn that the conductor, in good faith, refused it, but which was all the money plaintiff had. Held, that a verdict awarding $1,000 actual and $1,000 punitive damages was excessive, and should be reduced to $1,000.

Appeal from St. Louis circuit court; O'Neil Ryan, Judge.

Action by John F. Ruth against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed on conditions.

The action is for malicious prosecution. The material part of plaintiff's own testimony is as follows: "I got on the car at Twenty-First and Cass avenue. I walked in and took a seat on the north side of the car, running east,—the second seat from the rear. I sat there some few minutes, or whatever time it was, and the conductor came for my fare. I offered him a nickel I had, and he refused to take it. I told him that I thought the nickel was good. He told me he didn't think it was good, and he would not take it. I told him it was all I had, and I thought it was good. We argued a few minutes. He took hold of me,—pulled me out of the seat to the door. At the rear door I blocked it so he could not get me through. I sat down. He beckoned for the motorman to come back and help him. There were three, if not four, policemen on the rear platform. The motorman beckoned back, or in words. I don't remember exactly how it was, but he referred him to the policemen. * * * There were words spoken,—I can't remember the words,—and the conductor asked the policemen to arrest me. The policemen got the nickel from me, and they looked it over, and they hesitated. The conductor was talking to them, and finally one of the policemen agreed to arrest me. He took me down on the same car,—down to Eighth and Carr. On Eighth and Carr they wanted me to go around the line. I said, `No;' I had business to attend to; to arrest me there. They took me off the car, and took me to Seventh and Carr. The policeman took me in there. It was understood when we got off the car the conductor was to stop. The policeman told the conductor to stop on his return trip on Seventh street at the station. In the meantime I was taken to the station." Plaintiff was held at the station until the conductor came in. When he came in, the captain of the police for the Fourth district asked him if plaintiff hit him. The conductor answered that he did not. "Capt. Kiely asked, `Why did you have the man arrested?' and he said, `Because he gave me illegal tender.' Capt. Kiely said, `What is the matter with the nickel?' And the conductor made some excuse. Capt. Kiely said he saw no case there to hold me for, and I wanted him to arrest me, so I could get out and get my money for my men working for me, and I would give bond. He said he could see no case for that, and he would send me to the transit company, and for them to prefer charges. That was the only nickel I had on me when I got on that car. Capt. Kiely then sent me out with a police officer, and on the same car with the conductor, out to the transit company's office, on Spring and North Market. Before starting, Capt. Kiely said to the officer, in case the company did not prefer charges on me, that he was to ride me back to my place of business; and he agreed to that, because I did not have any money." Plaintiff further stated that his only nickel was in the possession of the conductor, and when they arrived at the sheds of the transit company they were met by Mr. Minary, the foreman, who came to the window of the office. The policeman produced the nickel, and the conductor asked Minary if the company would receive the money from him. "Minary went and sent a lady in charge there to the telephone,—the telephone was in hearing of the same office we were standing in; and this lady kind of explained the case over the telephone." Minary came back and ordered the policeman to prefer a charge of disturbing the peace, and the plaintiff was then taken back to the station, where a charge of violating the following city ordinance was preferred against him: "Sec. 1459. Disturbances of the Peace—Penalty. Any person who, in this city, shall disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another; or any person who, in this city, shall permit any such conduct in or upon any house or premises owned or possessed by them, or under their management or control, so that others in the vicinity are disturbed thereby, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than five nor more than five hundred dollars." The case was assigned to Police Justice Adolph Wislizenus for trial. Plaintiff gave bond to appear before the justice on February 4, 1901, and was discharged from custody. On plaintiff's application the cause was continued from February 4th to February 8th. On the latter date the parties appeared, and the cause was heard by the justice. To sustain the charge, two witnesses were sworn,— Dwyer, the police officer who made the arrest, and the conductor,—both of whom testified, in effect, that there was no fighting or offer to fight on the car; that no violence or objectionable language was used by the defendant (plaintiff here). On the evidence of these witnesses, the justice discharged the defendant, and no further proceedings were had. Plaintiff read in evidence the following rule of defendant for the guidance of its conductors, which rule defendant admitted was in force: "In case of trouble on a car call a policeman, when one can be found, and when it becomes necessary to eject a passenger from a car it must be brought to a full stop, using no more force than is required to remove him from the car. This should never be done except in extreme cases, and then the names of several witnesses should be taken, for reference if necessary." The plaintiff testified that he paid out $3.50 to procure a bond before the justice, and $10 to an attorney to represent him in that court; that on the day he was arrested he was detained until 12:30 p. m., but was not locked up at any time. In respect to the arrest, and facts leading up to it, and the subsequent proceedings, the evidence is all one way. There was evidence offered tending to show that the nickel offered to the conductor by plaintiff in payment of his fare was worn smooth on one side, but on the other side the stamped device was plain to be seen, and that it was a good...