State ex rel. St. Joseph Belt Ry. Co. v. Shain

• Decision Date: 26 August 1937
• Docket Number: No. 34518.,34518.
• Citation: 108 S.W.2d 351
• Parties: STATE OF MISSOURI at the relation of ST. JOSEPH BELT RAILWAY COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN ET AL., Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

108 S.W.2d 351

STATE OF MISSOURI at the relation of ST. JOSEPH BELT RAILWAY COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN ET AL., Judges of the Kansas City Court of Appeals.

No. 34518.

Supreme Court of Missouri.

Division Two, August 26, 1937.

Certiorari.

WRIT QUASHED.

Brown, Douglas & Brown for relator.

(1) Punitive damages are allowable and recoverable, if at all, only in a case where the act complained of, committed by the defendant, amounts to an actionable wrong, and in addition thereto was knowingly and intentionally committed by the actor, knowing it to be wrongful, and only when it is committed under such circumstances, is it within the discretion of the jury to mete out punishment in addition to actual damages. State v. Yungling, 116 Mo. 162, 22 S.W. 688: Nicholson v. Rogers. 129 Mo. 136, 31 S.W. 260: Callahan v. Ingram, 122 Mo. 372, 26 S.W. 1020: Keller v. Summers, 262 Mo. 324, 171 S.W. 336; Summers v. Keller, 152 Mo. App. 626, 133 S.W. 1180. (2) The omission from an instruction authorizing a verdict awarding damages, of any element essential to such award or recovery, amounts to positive misdirection. State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 984; State ex rel. v. Trimble, 318 Mo. 173, 300 S.W. 812; State ex rel. Highway Comm. v. Blobeck, 63 S.W. (2d) 449. (3) An error in an instruction authorizing a recovery, consisting of misdirection through the omission of an essential element of recovery, is not cured by a correct direction or instruction supplying the missing element in the same or another instruction for either party. Liable v. Wells, 317 Mo. 141, 296 S.W. 428; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Pence v. Laundry Serv. Co., 232 Mo. 930, 59 S.W. (2d) 633; State ex rel. State Highway Comm. v. Blobeck, 63 S.W. (2d) 448. (4) The original verdict of the jury awarding $10,000 punitive damages supported by only actual nominal damages in the sum of one dollar, is so outrageously excessive as to convince the judicial mind of bias, prejudice or misconduct on the part of the jury which cannot be cured by remittitur Chitty v. Railroad Co., 148 Mo. 64, 49 S.W. 868; Partello v. Railroad Co., 217 Mo. 645, 117 S.W. 1138; Burdict v. Railroad Co., 123 Mo. 221, 27 S.W. 453. (5) Even if it be held that no award of punitive damages can be so excessive as to convict the jury of passion, prejudice or misconduct, and if the error is susceptible of being cured by remittitur, the punitive damages must be remitted down to a sum which will not be disproportionate to damages actually sustained, and the highest proportion which this court has approved is not more than three times the actual damages. Sperry v. Hurd, 267 Mo. 268, 185 S.W. 1170; State ex rel. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Callahan v. Ingram, 122 Mo. 372, 26 S.W. 1020. That is the rule heretofore applied by the Kansas City Court of Appeals itself. Hunter v. Kansas City Rys. Co., 213 Mo. App. 233.

Randolph & Randolph and Nile L. Vermillion for respondents.

(1) On certiorari, the Supreme Court will confine itself to the determination of whether the assailed opinion is in conflict with controlling decisions of its own. The Supreme Court is not concerned with whether the assailed opinion is sound and correct. State ex rel. Calhoun v. Reynolds, 289 Mo. 515; State ex rel. Packing Co. v. Reynolds, 287 Mo. 708; State ex rel. Trust Co. v. Reynolds, 278 Mo. 709; State ex rel. Wahl v. Reynolds, 272 Mo. 596. Misapplication of law announced by the Supreme Court to a case on dissimilar facts is no basis for certiorari. State ex rel. Calhoun v. Reynolds, 289 Mo. 515; State ex rel. Jenkins v. Trimble, 291 Mo. 236. (2) Plaintiff's Instruction 2, assailed by relator, does not purport to cover the whole case, nor does it direct a verdict. (3) Instructions which do not cover the whole case or direct a verdict, may be amplified, corrected, and supplemented by other instructions given on behalf of either party. Null v. Stewart, 78 S.W. (2d) 79; Cassin v. Lusk, 277 Mo. 674; Parks v. Marshall, 14 S.W. (2d) 596; Sturtevant Co. v. Ford Mfg. Co., 253 S.W. 80; Kines v. Jamison, 277 S.W. 972; Treadway v. United Rys. Co., 282 S.W. 441; State ex rel. Ins. Co. v. Trimble, 318 Mo. 180. (4) The instructions given in a cause are to be considered together, as a whole, and not separately and apart. Null v. Stewart, 78 S.W. (2d) 79; Jenkins v. Ins. Co., 69 S.W. (2d) 669; Patterson v. Evans, 254 Mo. 307; State ex rel. Jenkins v. Trimble, 291 Mo. 236. Where the instructions as a whole cover the whole case, correctly declare the law, and are harmonious, there is no error, although any one of the instructions, considered alone, might be subject to objection and criticism. Neale v. McKinstry, 7 Mo. 128; Pond v. Wyman, 15 Mo. 181; Liese v. Meyer, 143 Mo. 560; Orcutt v. Bldg. Co., 214 Mo. 52; McDonald v. K.C. Gas Co., 59 S.W. (2d) 40; Gibler v. Terminal Railroad Assn., 203 Mo. 222. (5) The award of punitive damages is discretionary with the jury. Nicholson v. Rogers, 129 Mo. 141. (6) The amount of punitive damages to be allowed is governed by many questions of fact relating to the degree of malice and the relative position of the parties. State ex rel. Ry. Co. v. Ellison, 186 S.W. 1077; Sperry v. Hurd, 267 Mo. 642. The award of actual damages is not controlling of the award of punitive damages, especially where exact proof of the actual damages is impossible. Keller v. Summers, 262 Mo. 332; Lampert v. Drug Co., 238 Mo. 416; Courtney v. Blackwell, 150 Mo. 277.

ELLISON, J.

Certiorari to the judges of the Kansas City Court of Appeals bringing up the record of that court in Lyons v. St. Joseph Belt Railway Company, decided in June, 1935, and reported in 84 S.W. (2d) 933. The defendant railway company, appellant there, is relator here.

The plaintiff Lyons had been in the service of the relator as a roundhouseman, roundhouse foreman, locomotive fireman and locomotive engineer for about thirty years. He was discharged in 1932, and sued the relator in the Circuit Court of Buchanan County for $2448 actual damages and $10,000 punitive damages for its alleged wrongful, unlawful and malicious failure to give him a proper service letter upon his discharge, as required by Section 4588, Revised Statutes 1929 (Mo. Stat. Ann., p. 2026). In that action he recovered $1 actual damages and $10,000 punitive damages, which latter award was reduced to $4000 by remittitur enforced by the circuit court on consideration of relator's motion for new trial, and judgment was entered accordingly.

On relator's appeal to the Kansas City Court of Appeals the judgment was affirmed. The relator contends here that the opinion of the respondent judges of that court contravenes the latest controlling decisions of this court: (1) in upholding a certain Instruction No. 2 given by the trial court, which, it is said, authorized an award of punitive damages in the unlimited discretion of the jury without requiring a finding of malicious or intentional wrongdoing, and in ruling that this defect in the instruction was cured by other instructions given; (2) in refusing to set aside the judgment as being founded on passion and prejudice because the original verdict for $10,000 was grossly excessive; (3) and in affirming an award of $4000 punitive damages when the actual damages found were only $1.

The several instructions involved on the first point are as follows (the opinion also refers to instructions K and L, but we find they have no bearing on the questions here at issue, and hence do not set them out):

Instruction No. 2 "The jury are instructed that in law there are two kinds of malice, actual malice and legal malice. By actual malice is meant actual spite and ill will. By legal malice is meant the intentional doing of a wrongful act without just cause or excuse.

"The jury are further instructed that the matter of awarding punitive damages is entirely within the discretion of the jury, and you cannot award punitive damages on the first count of plaintiff's petition unless you find and award actual damages on said count."

Instruction No. 3 "The court instructs the jury that in law there are two kinds of damages, actual damages and punitive damages. Actual damages are for the purpose of compensating for the actual pecuniary injury or damage, if any, done to a plaintiff. Punitive damages are for the purpose of punishing and making an example of defendant for a wrongful act maliciously done."

Instruction I contained the following, among other things:

"You are instructed that in order to recover any such punitive damages, you must first find from the evidence that plaintiff is entitled to recover at least nominal actual damages on the first count of his petition, and next, that in the opinion of the jury, the defendant ought to be punished by the assessment of punitive damages in favor of the plaintiff on account of a willful and malicious failure or refusal of the defendant to furnish the plaintiff a letter signed by the defendant's superintendent or manager, correctly stating the duration and character of plaintiff's services with the defendant and truly stating the cause for plaintiff's discharge."

Instruction J further said: "The Court instructs the jury ... that in order for the plaintiff to recover punitive damages in addition to such nominal damages on the first count of his petition, you must believe and find from the evidence that the defendant willfully and maliciously refused to give the plaintiff a service letter of the character described in the other instructions in this case and that in the judgment of the jury, the defendant ought to be punished therefor by assessing some further sum as punitive damages."

The part of the opinion discussing Instruction No. 2 and the curative effect of the other instructions is as follows:

"12. The defendant complains of Instruction Number 2 given for plaintiff on account of the omission therefrom of any directions to the jury as to the...