Truel v. Missouri, K. & T. Ry. Co.

• Decision Date: 02 May 1910
• Court: Missouri Court of Appeals
• Parties: TRUEL et al. v. MISSOURI, K. & T. RY. CO.

128 S.W. 223

143 Mo. App. 380

TRUEL et al. v. MISSOURI, K. & T. RY. CO.

Kansas City Court of Appeals. Missouri.

May 2, 1910.

1. PLEADING (§ 35) — SURPLUSAGE.

Since the real contract of a passenger paying the full or ordinary rate of fare is created by law, and the ticket is a mere token or evidence of the contract, in an action for wrongful ejection of a passenger who has so paid the full or ordinary fare, an allegation of the complaint that her contract was based upon a ticket was superfluous.

2. DAMAGES (§ 149) — ELEMENTS OF COMPENSATION — MENTAL ANGUISH — PLEADING.

An allegation that plaintiff suffered great physical pain by being compelled to walk a long distance is a sufficient allegation of physical suffering to support a claim for damages for mental suffering and anguish.

3. CARRIERS (§ 381) — EJECTION OF PASSENGER — ADMISSION OF EVIDENCE.

In an action for the ejection of a passenger, where there was no evidence that the action of the conductor in putting plaintiff off the train was vindictive or violent, and the court so ruled and instructed the jury that plaintiff was not entitled to punitive damages, the admission of evidence that the conductor talked "angry," to the introduction of which no objection was made, was not error.

4. TRIAL (§ 121) — REMARKS OF COUNSEL — COMMENTS ON EVIDENCE.

In an action for the ejection of a passenger, where counsel for plaintiff said to the jury "they were insulting to the plaintiff in insisting upon putting her off the train," and "that a railroad official testifying on the witness stand

is a different kind of an individual to a railroad official taking tickets on a train, and when the woman tells you this railroad official insulted her," and, on objection by the defendant's counsel, the court did not respond, the case will be reversed and remanded for a new trial.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by Sarah Truel and another against the Missouri, Kansas & Texas Railway Company. Judgment in favor of plaintiffs, and defendant appeals. Reversed and remanded.

Geo. P. B. Jackson, for appellant. Barnett & Barnett, for respondents.

BROADDUS, P. J.

This is a suit for damages for the alleged wrongful action of defendant. The petition charges defendant with wrongfully ejecting plaintiff from one of its trains at Parsons, in the state of Kansas.

The gist of the petition is as follows: "Plaintiffs state that on the 6th day of October, 1907, at Shawnee, Okl., the plaintiff, Sarah Truel, bought of the agent of the Rock Island at said place two tickets, one whole fare ticket for herself and a half fare ticket for her minor boy from said Shawnee to Sedalia, Mo., by way of the city of McAlester, Ind. Ter.; that said tickets authorized and entitled the said plaintiff and her minor son to ride and to be transported over the said Rock Island Railroad to McAlester, Ind. Ter., and from McAlester, Ind. Ter., over the defendant, the Missouri, Kansas & Texas Railroad, to Sedalia, Mo. Plaintiff states that said tickets were coupon tickets, one of the tickets on each of said tickets entitling the plaintiff and her son to ride over the Rock Island Railroad from said Shawnee to said McAlester and the other coupons on tickets authorizing the plaintiff and her son to ride and be transported over the defendant railroad from the said city of McAlester to the city of Sedalia. Plaintiffs further state that on said 6th day of October, 1907, by virtue and the authority of her said ticket and the contract therein embraced which authorized her to be transported and carried over the said Rock Island Railroad to McAlester, and over the defendant railroad from McAlester to Sedalia, she, with her minor son, boarded the train of the said Rock Island on said day and was carried thereon to the said city of McAlester, arriving there on the morning of October 7th, and on the said morning of October 7th, about 7 o'clock a. m. of said day, she and her said minor son, by virtue of her ticket and contract aforesaid, boarded the train of said defendant railroad at McAlester for the purpose of riding thereon to Sedalia, Mo., as she and her said son had a right to do. The plaintiff further states that after she had boarded said train and the train had started, and when the conductor came to take up her ticket and that of her son, he wrongfully and without any right whatever refused to recognize said ticket, and refused to carry her and her said son on said ticket, although the plaintiff had contracted with the defendant's agent as aforesaid by the purchase of the aforesaid ticket, and had paid the full price for her said ticket and was entitled to ride thereon." The plaintiff then further alleges that, when the train arrived at Parsons, Kan., she was put off the train; that she was detained there for several hours, but was allowed to ride on the next train, and did not arrive in Sedalia until late at night; that, had she arrived on the first train, her daughter would have...