State v. Allen

• Decision Date: 10 April 1922
• Docket Number: No. 22996.,22996.
• Citation: 240 S.W. 117
• Parties: STATE ex rel. UNITED RYS. CO. OF ST. LOUIS v. ALLEN et al., Judges.
• Court: Missouri Supreme Court

240 S.W. 117

STATE ex rel. UNITED RYS. CO. OF ST. LOUIS v. ALLEN et al., Judges.

No. 22996.

Supreme Court of Missouri, Division No. 2.

April 10, 1922.

Certiorari by the State of Missouri, on the relation of the United Railways Company of St. Louis, against Hon. William H. Allen and others, Judges of the St. Louis Court of Appeals, to review proceedings in a cause by George Lampe against the relator. Writ of certiorari quashed as improvidently issued.

Charles W. Bates, T. E. Francis, Alva W. Hurt, and Albert D. Nortoni, all of St. Louis, for relator.

Earl M. Pirkey, of St. Louis, for respondents.

WHITE, C.

On petition of the relator this court ordered writ of certiorari directed to the judges of the St. Louis Court of Appeals, requiring them to certify to this court a transcript of the record and proceedings in the cause of George Lampe, Respondent, v. United Railways Co. of St. Louis, Appellant, 232 S. W. 249, in order that this court might adjudicate upon the regularity of said proceeding. In pursuance of that order the record of said cause is here for consideration.

In the petition of relator for the writ it is claimed that the judgment and decision of the St. Louis Court of Appeals, as shown by the opinion in the case, is in conflict with the ruling of' this court in several cases, to wit: Garrett v. St. Louis Transit Co., 219 Mo. 65, 118 S. W. 68, 16 Ann. Cas. 678; Raming v. Met. St. Ry. Co., 157 Mo. 477, 57 S. W. 268; Degonia v. Railroad, 224 Mo. 564, 123 S. W. 807; Scrivner v. Railroad, 260 Mo. 421, 169 S. W. 83; Wojtylak v. Coal Co., 188 Mo. 260, 87 S. W. 506; Hall v. Coal Co., 260 Mo. 351, 168 S. W. 927, Ann. Cas. 1916C, 375; Banks v. K. C. Rys. Co., 280 Mo. 227, 217 S. W. 488. Other cases are mentioned in the petition for the writ which it is claimed bear upon questions incidental to the main issue.

In order to determine the propriety of the ruling of the Court of Appeals it is necessary to set forth what the opinion says of the pleadings and the issues presented, as follows:

"That on October 6, 1909, plaintiff was at the south crossing of Broadway and Montgomery streets, two streets in said city of St. Louis, intending to become a passenger upon defendant's south-bound car then approaching said Montgomery street from the north on tracks of defendant's street railway line on said Broadway.

"That while plaintiff was so at said crossing said car stopped at said crossing for the purpose of receiving passengers, and while it was so stopped plaintiff for the purpose of being carried as a passenger on said car from said Montgomery street to the business part of said city of St. Louis, south of Franklin avenue in said city, stepped on the step of the rear platform of said car and an iron bar of said car located at its rear, and said car shortly thereafter was caused by defendant to proceed southward on said tracks on said Broadway with plaintiff standing on said step and said bar.

"That plaintiff while on said car stood on said step and bar, and he so stood because the platforms and inside of said car were filled with passengers, and plaintiff at all times while so on said car was ready, able, willing, and intending to pay his fare to defendant for riding on said car, and was waiting for an opportunity to pay defendant his said fare.

"That said car was not a car commonly known as a `pay-as-you-enter car,' but was a car on which defendant's conductor in charge thereof usually and habitually proceeded from passenger to passenger to collect their fares.

"That at the time plaintiff was injured as hereinafter mentioned, and for a long space of time next prior thereto, defendant usually and habitually, when the platforms and inside of its cars on said Broadway line were filled with passengers, permitted passengers to at all times stand on the steps of the platforms of such crowded cars and on the bars of such cars similar to the bar plaintiff stood on as aforesaid.

"That on October 6, 1909, while said car was so proceeding southward with plaintiff thereon as aforesaid, and as a passenger, and was in rapid motion, and before plaintiff had had an opportunity to pay his fare, defendant's Conductor then in charge of said car did willfully, wrongfully, unlawfully, maliciously, and without provocation, cause, or excuse, attempt to strike plaintiff with a metal object known as conductor's punch, and in so attempting did willfully, wrongfully, unlawfully, maliciously, and without provocation, cause, or excuse, strike at plaintiff with said object, whereby plaintiff was caused to lose his footing, and to fall and be thrown from said car while it was so in rapid motion to and upon the street in the vicinity of Cass avenue in said city, whereby he was jarred and shocked and was cut and bruised about his head, limbs, and body, and one of the bones of his left forearm was broken, and he was caused to sustain severe nervous injuries and shock.

"That said acts of said conductor were within the scope of his employment and authority under defendant, and were done while he was undertaking to serve defendant as such conductor and while he was in the course of his employment under defendant.

"That by his injuries so sustained plaintiff has suffered and will suffer great pain of body and mind, and his left arm is permanently crippled, disabled, and injured, and he has sustained permanent nervous injuries and shock, to his damage in the sum of $2,000.

"That, as said attempt of said conductor to strike plaintiff and his said act in striking at plaintiff were unlawful, malicious, wrongful, willful, and without provocation, cause, or excuse, plaintiff asks damages by way of punishment in the sum of $1,000.

"Wherefore plaintiff asks judgment against defendant for $2,000 actual damages and $1,000 punitive damages, a total of $3,000."

Instruction No. 2, which it is claimed is erroneous and in conflict with the authorities cited, together with instructions A and B, offered by the defendant and refused, are as follows:

"(2) The court instructs the jury that, if they find from the evidence in this case that on and before October 6, 1909, the defendant was in possession and control of and operating a street railway and cars on Broadway in the city of St. Louis, Mo., for the purpose of carrying passengers for hire in said city as a street railway, and that Montgomery street and said Broadway were at said times streets in said city, and that on said October 6, 1909, defendant was in possession and control of and operating a south-bound car on said Broadway for the purpose of carrying passengers for hire in said city of St. Louis on said railway line, and that on said day the plaintiff was at the south crossing of Montgomery street and Broadway in said city of St. Louis, and that whilst plaintiff was so at said crossing said south-bound car was by defendant stopped at said crossing for the purpose of receiving passengers thereon, and that while said car was so stopped plaintiff stepped on the step of the rear platform of said car End an iron bar of said car located at its rear, and if the jury further find from the evidence that said car was under the charge and control of a conductor of defendant, and that whilst plaintiff was so standing on said step and bar said conductor in charge and control of said car did without provocation strike at the plaintiff with intent to strike him with a metal object, and that said object was known as a conductor's punch, and that said conductor did thereby cause the plaintiff to lose his footing on said step and bar of said car, and to fall, and be thrown from said car upon the street in the vicinity of Cass avenue in said city, and thereby to sustain an injury to his arm mentioned in the evidence, and that said act of said conductor in so striking' at plaintiff if the jury find from the evidence this occurred and was done while he was undertaking to serve defendant as such conductor, and while he was in the course of his employment under defendant, and within the range and scope of his employment and authority under defendant, then the jury will find for plaintiff and allow him damages, and in determining the amount of the same the jury will take into consideration the nature, character, and extent of the injury, if any, to his arm, and the physical pain, if any, and mental anguish, if any, suffered by him and directly caused by said injury, and assess the plaintiff's damages at such sum as, in the opinion of the jury, will fairly compensate him for said injury, and not exceeding the sum of $2,000."

The two instructions offered by defendant, and which the court refused to give, of which rulings appellant complains, are as follows:

"A. The court instructs the jury that, if you believe from the evidence plaintiff had no intention of paying his fare, but was stealing a ride on the car, then he is not entitled to recover, and your verdict will be for defendant.

"B. The court instructs the jury that, although you may believe from the evidence plaintiff fell from the car and was injured, yet the court instructs you that be is not entitled to recover, if you find from the evidence that he had no intention of paying his fare, but, even if you find he"intended to pay his fare, still he is not entitled to recover, if you find from the evidence the conductor did not strike at him."

The Court of Appeals then disposes of the only assignments of error mentioned as follows:

"I. Learned counsel for appellant insists that the trial court obviously committed reversible error in giving plaintiff's instruction No. 2, for the reason that that instruction authorized the jury to find a verdict for plaintiff (for compensatory damages only) without requiring the jury to find that plaintiff was a passenger upon the car as alleged in the petition.

"It will be observed that plaintiff's first instruction, set out above, requires, among other things, that the jury find that plaintiff got upon the car for the...