White v. Metropolitan Street Railway Company

• Decision Date: 29 June 1908
• Citation: 112 S.W. 278,132 Mo.App. 339
• Parties: ALMA R. WHITE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

112 S.W. 278

132 Mo.App. 339

ALMA R. WHITE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Jackson Circuit Court.--Hon. Robert B. Middlebrook Special Judge.

Judgment affirmed.

John H Lucas, F. G. Johnson and C. S. Palmer for appellant.

(1) The court erred in admitting evidence of the statements of the conductor after the alleged ejection. Barker v Railway, 126 Mo. 143; Koenig v. Depot Co., 173 Mo. 721. (2) The court erred in admitting the opinions and impressions of witnesses. 7 Am. and Eng. Ency. of Law (1 Ed.), p. 472. (3) The punitive damages were excessive.

C. C. Madison for respondent.

(1) Everything said and done by the conductor during the entire controversy was an issue under the pleadings and was also a part of the res gestae. Shaefer v. Railway, 98 Mo.App. 445; Cunningham v. Railway, 79 Mo.App. 524; State v. Davidson, 44 Mo.App. 513; Construction Co. v. Railway, 71 Mo.App. 626. (2) The language used by the witnesses in describing the conductor's manner was not improper or in any way harmful to appellant. State v. Buchler, 103 Mo. 203; Shaefer v. Railway, 98 Mo.App. 445; 5 Ency. of Evidence, K. 674 and B. 701; Reeves v. State, 96 Ala. 33, 2 So. 296; State v. Baldwin, 36 Kan. 1, 12 P. 318; Carroll v. State, 58 Am. Dec. 282; Powers v. State, 23 Tex.App. 42, 5 S.W. 153. (3) The question of punitive damages was for the jury to determine and the award in the case was fully justified by the evidence. Mueller v. Transit Co., 108 Mo.App. 325; Summerfield v. Transit Co., 108 Mo.App. 718; Gildersleeve v. Overstolz, 90 Mo.App. 518; Gardner v. Railway, 117 Mo.App. 138; McGinnis v. Railway, 21 Mo.App. 399.

OPINION

JOHNSON, J.

Action by a passenger against a common carrier to recover compensatory and punitory damages for the wrongful ejection of the passenger which it is alleged, was accompanied by insulting and abusive language on the part of the conductor. Plaintiff had judgment in the sum of $ 1 actual and $ 250 exemplary damages and defendant appealed.

Material facts adduced by plaintiff are as follows: In the evening of the 9th of August, 1905, plaintiff, a young lawyer, accompanied by a young woman whom he was escorting to Independence, became a passenger on a north-bound street car on defendant's Troost avenue line in Kansas City, paid the regular fare and received transfer checks which entitled him and his companion to transfer to the Independence line at Eighth street and Troost avenue. In due time, they boarded an Independence car at this transfer point and plaintiff presented his checks to the conductor, who refused to accept them and demanded payment of fare. Referring to what occurred, plaintiff testified: "He (the conductor) looked at them and said, 'These transfers are not good.' I looked at them and said, 'What is wrong with them?' and he said, 'They are not good.' I hesitated for a minute and said, 'What is wrong with them?' I examined them pretty thoroughly and saw that they were punched the proper date and the proper time. And he said, 'Those transfers are not good and you know they are not good. . . . You are one of those fellows who are all the time trying to beat their fare on the railroad, . . . And I said to him, 'I beg your pardon, those transfers were given to me by the conductor on the Troost avenue line and I don't see anything wrong with them, and I think I am entitled to explain the matter.' He said, 'They are not good and you are going to pay your fare or you are going to get off.' And I hesitated for a minute and I said, 'I will pay the young lady's fare, but you will have to put me off for I believe those transfers are good.' So I did pay her fare, and he grabbed me by the arm and pulled me up in the aisle, and he gave me a shove and pushed me some little distance, and then gave me another shove and I went to the back end of the car. And he said, 'Are you going to get off the car?' and I said, 'I am not,' and he then gave me a push between the shoulders in the back and pushed me on to the ground. He kind of sprained my back a little bit and here in the back of my neck (indicating) when he pushed me. And I started to get back on the car and he said 'You can't get back on this car unless you pay your fare,' and I said, 'I will pay my fare.' And I went into the car and sat down and he came up and said, 'Well, I put you off, didn't I?' and I said, 'Yes.' And I took a pencil--I asked the young lady who was with me if she had a pencil and she said, 'No,' and the conductor said, 'I will lend you a pencil if that is what you want,' and he did, and I took the names of some witnesses there and handed the pencil back to the conductor and thanked him and sat down. And that is about all that happened at that time until after we had gotten out to Mt. Washington where they take up the second fare to go to Independence, and he came along and I handed him the fares and he said, 'You feel a little better now, don't you?' and I said, 'I don't know as I do.' . . . Q. What was his manner of speech? A. It was sneering. (Objection. Overruled.) Q. Now, from the beginning what was the conductor's manner of speech? A. I don't know that I can explain his manner of speech any more than the man's tone of voice, expression and manner. That was his action and that was the expression of all his remarks to me, in that manner and that tone. Q. What manner and tone? A. In a short, boisterous mode."

This statement is corroborated in substance by other witnesses, one of whom, over the objection of defendant, was permitted to state that some time after plaintiff had been put off, paid his fare and resumed his seat, the conductor remarked, "the more times he was reported on a thing of that kind the better it suited him and the company would stand for it." This witness was asked to describe the manner of the conductor during the altercation and afterward. We quote from his examination on this subject: "Q. Can you imitate his manner in any way? A. I am not a very good actor. I can state what his manner was." Counsel for defendant: I object to that. It is improper for the witness to describe what he thinks about it.

The Court: Let the witness describe it the best he can, as to how the conductor acted. Show the jury the best you can the manner in which he acted and what he had to say. Exception. A. I don't know as I can do that. He was walking up and down the aisle and made sneering remarks at different times. That is as near as I can state. Counsel for defendant: I object to that. Let him state what the remarks were, and let the jury decide whether they were sneering.

The Court: I think the witness can state what he had to say, and describe his manner, without saying to the jury outright that he was insulting or boisterous or giving any definition of his conduct. Defendant's counsel: I desire to have the record show that I object to the remark of the witness that the conductor was walking up and down the aisle making sneering remarks. I object to that as a conclusion of the witness and ask that it be stricken out and that the jury be instructed not to consider it.

The Court: That portion of the answer describing him as walking up and down the aisle will be allowed to stand, but that portion of the answer stating that the conductor was making sneering remarks is rejected. And the witness is instructed to tell what the remarks were that the conductor made when he was walking up and down the aisle. Q. What was his tone of voice, Dr. Thomas? A. One of the remarks was just what we were talking about awhile ago, when he said to me he didn't care how often he was reported on a matter of that kind; that the company would stand for it. And the gentleman returned his pencil, and he said in a tone of voice that I considered sneering and insulting,--Counsel for defendant: I think this witness ought to be censured; he is an intelligent man; and I move that the answer of the witness be stricken out.

The Court: That part is stricken out. . . . Q. Describe the language as near as you can. A. That was the language that I have just quoted, and I don't know of any way of giving his attitude except to express it; that is my idea.

"The Court: Let the witness go on and say whether it was in a loud tone of voice. A. It was in a medium tone of voice. It was neither very loud nor very low, but it was the manner in which he spoke it. Q. Can you describe to the jury the expression of his face and his attitude towards the plaintiff? A. His attitude was decidedly domineering. (Objection. No ruling.) Q. What was the expression of his face? A. Of anger; an expression of anger."

It is alleged in the petition that the conductor, "in violation of plaintiff's rights as a passenger, declined to accept the said transfer check or to allow plaintiff to be carried upon said car; that the said conductor, although requested by plaintiff, refused to give any reason for declining to accept said transfer check, and in the presence of numerous passengers, falsely and maliciously charged plaintiff with knowingly trying to beat, cheat and defraud the company, and used violent and grossly insulting language toward plaintiff. That the said conductor forcibly ejected and expelled plaintiff from said car, and in so doing committed an assault and battery upon plaintiff by forcibly pulling him from his seat and pushing him off of the rear platform into the street; that said conductor thereafter continued the charge, in the presence of said passengers, that plaintiff had attempted to perpetrate a fraud upon defendant."

The evidence introduced by defendant is to the effect that the transfer checks offered by plaintiff had not been punched in the proper manner to entitle him to...