Smith v. Delano

• Citation: 179 Mo. App. 242,166 S.W. 852
• Decision Date: 04 May 1914
• Docket Number: No. 11,069.,11,069.
• Parties: SMITH v. DELANO et al.
• Court: Court of Appeal of Missouri (US)

166 S.W. 852

179 Mo. App. 242

SMITH v. DELANO et al.

No. 11,069.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

1. APPEAL AND ERROR (§ 440)—JUDGMENT— AMENDMENT AFTER APPEAL.

In view of Rev. St. 1909, § 1851, providing that after final judgment the court may amend, in affirmance of the judgment, any record, entry, or return, by adding or striking a party, or correcting a mistake in the name of a party, or in any other respect, and the judgment shall not be annulled therefor, the trial court may order its records amended from proper data, so that it could, after appeal and the filing of the transcript in the Court of Appeals, in an action against the receivers of a railroad company, amend the judgment for plaintiff, which was entered against defendants individually, so as to make it run against them as receivers, and require the amount awarded to be satisfied out of the property in defendant's hands as such.

2. CARRIERS (§ 318) — PASSENGERS—ACTIONS FOR ASSAULT—SUFFICIENCY OF EVIDENCE.

Evidence in an action against receivers of a railroad company for assault by an employé upon a passenger held to sustain a finding for plaintiff.

3. CARRIERS (§ 319)—PERSONAL INJURIES— EXCESSIVE DAMAGES.

Evidence in a railroad passenger's action for personal injuries caused by an assault by the porter held not to show that an award of $500 actual damages and $500 punitive damages was excessive.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

Action by Turner E. Smith against Frederic A. Delano and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Lavelock & Kirkpatrick, of Richmond, and J. L. Minnis, of St. Louis, for appellants. Hamilton & Herndon, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is based on an assault and battery by one of defendant's servants. The judgment in the trial court was for plaintiff.

It appears that the Wabash Railway Company was in possession and was being operated by the three defendants as receivers, and that, as such, they operated the road as an ordinary common carrier of passengers. The judgment for plaintiff was entered as though rendered against the defendants individually, and this seems not to have been discovered until after defendants' appeal to this court had been taken and the transcript filed here. When discovered, plaintiff filed a motion in the trial court for an entry of a proper judgment against defendants in their capacity as receivers, and that the amount thereof be satisfied out of the property of the railway corporation in their hands as receivers. Proctor v. Railway Co., 42 Mo. App. 124. This motion, after due hearing, was sustained. After citing authority on the proposition that receivers of a corporation cannot be "sued individually for acts done officially, and that personal judgments, where sued as receivers, are unenforceable," defendant seeks to hold plaintiff to the record of the judgment before the change made by the nunc pro tunc order. It is insisted that the corrected record of the judgment could not be made after an appeal had been taken and the transcript of the...