Smith v. Atchison, Topeka, & Santa Fe Ry. Co.

• Decision Date: 02 April 1917
• Citation: 194 S.W. 71,196 Mo.App. 349
• Parties: HENRY C. SMITH, Appellant, v. ATCHISON, TOPEKA, & SANTA FE RY. CO., Respondent
• Court: Kansas Court of Appeals

194 S.W. 71

196 Mo.App. 349

HENRY C. SMITH, Appellant, v. ATCHISON, TOPEKA, & SANTA FE RY. CO., Respondent

Court of Appeals of Missouri, Kansas City

April 2, 1917

Appeal from Buchanan Circuit Court.--Hon. C. H. Mayer, Judge.

Judgment affirmed.

C. F Strop for appellant.

Culver & Phillip for respondent.

TRIMBLE J. Ellison, P. J., concurs in separate opinion. Bland, J. not sitting.

OPINION

TRIMBLE, J.

This is an action to recover damages for wrongful ejection of a passenger from one of defendant's trains. The verdict was of $ 5 actual and $ 500 punitive damages. The circuit court thought the punitive award excessive, and, on consideration of the motion for new trial, offered plaintiff the opportunity of remitting $ 400, in which event judgment would be entered for $ 5 actual and $ 100 exemplary damages. Plaintiff declined to make the remittitur, and the motion for new trial was sustained solely because the court regarded $ 500 as an excessive award of punitive damages. Thereupon the plaintiff appealed.

Defendant operated certain suburban gasoline motor cars on one of its branch railroads. Plaintiff boarded one of these passenger conveyances at Gower, Missouri, desiring to be transported as a passenger to St. Joseph, Missouri, a distance of twenty miles. He arrived at the station just as the train was leaving and did not have time to purchase a ticket. The lawful rate of fare was two cents a mile and according to that rate he tendered the conductor forty cents for the full distance he wished to go. The conductor refused to accept this amount and demanded sixty cents which would be three cents per mile. Plaintiff refused to pay this rate and the conductor, in the presence of the passengers, told him he would stop the car and put him off. Plaintiff would not pay more, and the conductor stopped the car, took plaintiff by the arm, led him to the door and put him off. After being put off he told the conductor he was a deputy sheriff and "would like to go on." The conductor replied, "I don't give a God damn who you are, you are off now," and would not take him. The car at this time was a half or three-quarters of a mile from the station. It was about 6:30 p. m. of August 14, 1913, a hot summer evening. Plaintiff had to walk back to the station where forty or forty-five minutes later he caught a Grand Island railroad train, operating over the same tracks, and came on to St. Joseph. Plaintiff suffered no illness or untoward physical effects from this. Plaintiff testified that the conductor did not strike him nor offer to do so; that he, the conductor, "got a little mad, not so very much, seemed a little out of humor;" that he was mad because plaintiff would not give him the sixty cents. When asked how the conductor indicated he was mad, plaintiff replied: "He just said I couldn't ride--I think he said, 'By God, you can't ride.'" He was not sure the conductor used the oath last mentioned, but was sure he swore, as hereinbefore stated, after plaintiff was off the car. There was no scuffle or tussle.

The evidence offered in behalf of the defendant as to what took place between the plaintiff and conductor does not differ greatly from plaintiff's version, except that the conductor denies using any oaths. The brakeman, who was at the rear of the car but who knew "there was some kind of trouble" and that the trouble was with plaintiff--though he did not know his name, and that the car was being stopped for the purpose of putting him off, went to them so that, if necessary, he could render such assistance as he thought proper. He either followed plaintiff off the car or preceded him. He says he doesn't think the conductor used the language plaintiff ascribed to him after he, plaintiff, was off the car on the ground, but admitted that there might have been some of the conversation he didn't hear. He would not say the conductor did not use it, but only that he did not hear it. Other evidence in behalf of defendant had obtained against the enforcement of the effect that the matter was carried on in ordinary conversational tones, neither seemed to be angry and no excited talk was indulged in so far as the witnesses (who were passengers in the car), heard. There is no question, however, but that the passengers fully understood that plaintiff was being put off the car because he would not pay the amount the conductor demanded.

Some time prior to this the Supreme Court of the United States had dissolved the injunction which the defendant had obtained against the enforcement of the Two Cent Fare law, so that there was then not even apparent authority for the collection of more than two cents per mile. Plaintiff's demand for punitive damages, however, is clearly bottomed upon the conductor's manner and conduct towards plaintiff and not upon any malicious conduct of defendant itself in instructing its conductors to continue collecting three cents per mile after the Two Cent Fare Law had gone unrestrictedly into force. So that whether plaintiff made a case for punitive damages depends upon the manner and language used by the conductor toward plaintiff at the time of his ejection from the car. If the conductor used the language toward plaintiff which the latter says he did, there was a case for punitive damages in some amount at least. And it will be observed that the trial court, as well as the jury, found that plaintiff had made a case which permitted the allowance of such damages. In other words, both court and jury accepted plaintiff's version of the case. The only difference was that the jury thought the punitive damages should be fixed at $ 500 while the court thought $ 100 was sufficient.

The question, therefore, raised by plaintiff's appeal is as to whether the trial court, having recognized that a case for punitive damages was made, had the power to set aside the verdict for the sole reason that, in his opinion as a thirteenth juror, the award of punitive damages was greater than he thought it should be.

The appeal was first submitted to us at the October term, 1915, and an opinion by ELLISON, P. J., was handed down December 18, 1915. [See Smith v. Atchison T. & S. F. R. Co., 192 Mo.App. 210, 180 S.W. 1036.] This court entertained the view that in a case where punitive damages, under any view of the evidence was at all permissible, not only was it a question for the jury to say whether any such damages should be allowed, but that, if they were allowed, the amount thereof was a matter within the exclusive province of the jury, subject to the right of the court to set aside the award only in case it was so great as to appear outrageous, such that all reasonable men would unhesitatingly pronounce so unreasonable as to induce the belief that the jury, in making such an award, must have acted from partiality, prejudice, or other improper motive. It would seem that, up to that time at least, the authorities justified that view. In 3 Graham & Waterman on New Trials, 1135, it is said:

"According to the language, however, of adjudged cases, to justify the court in setting aside a verdict, the damages ought to appear outrageous, or manifestly to exceed the injury, and such that all mankind would at once pronounce unreasonable, and so as to induce the court to believe that the jury must have acted from prejudice or partiality, or were influenced by some improper considerations."

In the case of Sargent v. , 5 Cow. 106, 118, 119, the court denied the right of defendant to a new trial asked for on the ground that the award was excessive. The court said the damages "appear to be much larger than they should have been," but that they were not "so flagrantly outrageous and extravagant as necessarily to evince intemperance, passion, partiality or corruption on the part of the jury; and where that is not the case, the court will not undertake to set their judgment on a question of damages, in an action of this nature, in opposition to the judgment of the jury. It is the judgment of the jury, and not of the court which is to determine the damages."

In Coleman v. Southwick, 9 Johns. 45, 51, where plaintiff's verdict was attacked as excessive, Chancellor KENT said:

"The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say, that in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries."

And on page 52 of the same case, he said:

"The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess."

In Morgan v. Ross, 74 Mo. 318, 325, our own Supreme Court said:

"In vindictive actions, and so this action is now regarded damages are given for the two-fold purpose of setting an example and of punishing the wrongdoer. It is believed that no case can be found in the books where the verdict in an action such as this has been set aside upon the sole ground of awarding excessive damages. Peculiar...