186 Mo. App. 460 | Mo. Ct. App. | 1914
Lead Opinion
— This action, against the receivers of the St. Louis and San Francisco Railroad Company, was brought to recover actual and punitive damages for an assault made upon plaintiff by defendants ’ ticket agent at Caruthersville. This appeal is by defendants from the result of the second trial in which a judgment was obtained by plaintiff for $1000 actual and $500 punitive damages. The first trial resulted in a judgment for $500 actual and $500 prmitive damages. Both trials were to a jury and the • court granted a new trial as to the first verdict on the ground that it was excessive. Whether the actual or punitive damages, or both, were considered excessive is not disclosed. The same judge who sustained the motion for ■a new trial as to the first verdict passed on and overruled a similar motion as to the verdict here involved.
The plaintiff, a small boy, sixteen years of age went to the defendants’ depot in Caruthersville ten or fifteen minutes before train time for the purpose of taking passage on defendants’ train to Holland. He went to the ticket window, called for and was delivered a ticket to that point by the man in charge. Plaintiff gave the agent fifty cents, the fare being thirty-eight cents. Plaintiff stood there a short time and remarked to the agent: “Say, partner, you forgot to give me my change.” The agent replied: “I haven’t got no pennies.” The plaintiff waited a short time and then said: “ Well, give me my dime then. ’ ’ The agent then retorted: “You heard what I said’’ and threw a metal stamp, used for stamping tickets, at plaintiff striking
The plaintiff pleads the facts as above stated and alleges that at said time the agent was acting within the line and scope of his employment.
The errors assigned are refusal to direct a verdict for defendant; giving and refusing instructions and excessive verdict.
It is said that the peremptory instruction should have been given (a) because the agent in making the assault “was not within the scope of his employment, and did not pertain to his particular duties under the employment,” and (b) the difficulty was personal to the agent and was brought on by plaintiff’s own misconduct.
It was the duty of the agent to sell tickets, collect the price therefor and return change received in so doing. In these transactions, and in baffling the plaintiff in his effort to secure his change, he was acting within the scope of his employment, and if as an incident thereto and a result thereof he committed a tort the master is liable. [Shamp v. Lambert, 142 Mo. App. 567, 574, 121 S. W. 770; Bouillon v. Laclede Gas Company, 148 Mo. App. 462, 473, 129 S. W. 401; Chandler v. Gloyd, 217 Mo. 394, 412, 116 S. W. 1073.]
Another valid reason for refusing the peremptory instruction is that the plaintiff assumed a burden, greater than was necessary on his part. The plaintiff became a passenger when he went to the depot to take passage on defendants’ train (Albin v. Chicago, Rock Island & Pacific Railway Co., 103 Mo. App. 308, 316, 77 S. W. 153) and, therefore, the defendants owed him
The defendant complains of the refusal of the court to give -an instruction to the effect that if the assault grew out of a personal difficulty between the agent and plaintiff that then he could not recover. The instruction was properly refused because it is shown by all of the testimony that it grew out of the business of the sale of a ticket, as above stated, and also the same hypothesis is included in an instruction given at the request of the defendants.
Defendants complain of the refusal of an instruction asked that stated plaintiff should not recover punitive damages. This, it is stated in the brief, should have been given because plaintiff used insulting language in his controversy with the agent, but all of bis witnesses testified he did not, and the jury so found under an instruction given at the request of defendant. It was not error to refuse this instruction.
Lastly, it is said the verdict for actual damages is excessive. A gash about two inches in length was cut on plaintiff’s" head to the skull. He and his father testified that he had been unable to work; that he was nervous and could not sleep as before the injury. The doctor who first dressed the wound, called by defendants as a witness, testified that such a lick as this might result as plaintiff testified that it had. This doctor also said that an internal injury might be caused without a break of the skin and that complications might arise later that were not indicated soon after the injury.
Concurrence Opinion
SEPARATE OPINION.
— We concur in the foregoing opinion, except as to the last paragraph and think that the verdict of the jury is excessive and that plaintiff should be required to remit the actual damages to an amount not exceeding $500.
The two trials were only a few months apart. The evidence as to plaintiff’s injuries is practically the same on the second trial as on the first. There is nothing in the evidence to show any new developments in the injuries, or any reason whatever for saying that the injuries were worse at the second trial than at the first. The plaintiff had received no medical attention or examination during the interval. The two physicians who testified had the same knowledge of bis injuries at the first trial as at the second. Neither plaintiff nor his father claimed that any new symptoms had developed or that he was in any worse condition during the last two or three months than he was before. The physician who first examined him and dressed his wound testified positively that he made a careful examination and that the wound was only a flesh wound and no injury to the skull or brain resulted. The other physician dressed his wound four or five times, found nothing to indicate that it was more than a flesh wound, said that it healed rapidly and after ten days or two weeks the plaintiff received no medical attention wnat
