Breen v. St. Louis Transit Co.

102 Mo. App. 479 | Mo. Ct. App. | 1903

BLAND, P. J.

(after stating the facts as above).— 1. The questions of malice and oppression were eliminated from the case by the refusal of the jury to assess any punitive damages. Viewing the evidence in its most favorable aspect for the plaintiff, we have for consideration simply a case of unjustifiable assault and battery without express malice or of any actual intention to commit a legal wrong — the wrongful and forcible ejection of a passenger from a street car by the conductor in the mistaken but honest belief that he was doing his duty. The bodily pain caused by the battery, according to plaintiff’s own evidence, was slight, but it was appreciable and sufficient to constitute an element in the estimation of the damages, and was properly submitted to the jury as an element of the damages. Having adduced evidence of the assault and battery and thus proven the tort, all the circumstances attending the assault and battery were proper for the consideration of the jury, and in estimating plaintiff’s damages they were authorized to take into account, not only his physical pain, but also such mental suffering as they were satisfied must have been the natural result of the injuries inflicted. West v. Forrest, 22 Mo. 344; Porter v. Railroad, 71 Mo. 66 ; Brown v. Railroad, 99 Mo. 310;. Cook v. Railroad, 19 Mo. App. 329; Deming v. Railroad, 80 Mo. App. 152; Railroad Co. v. Barron, 72 U. S. 90; Kennon v. Gilmer, 131 U. S. 22; Smith v. Holcomb, 99 Mass. 552; Ferguson v. Davis County, 57 Iowa 601; South and North Alabama R. R. Co. v. McLendon, 63 Ala. 266; The Pennsylvania and Ohio Canal Co. v. Graham, 63 Pa. 290.

Instruction No. 1, given for plaintiff, went further than to tell the jury that they should take into consideration the facts and circumstances attending the assault and expulsion of plaintiff in estimating the damages. It detailed these circumstances and then instructed that if “said conductor meant and intended in charging plaintiff with attempting to pass counterfeit money to thereby charge plaintiff with attempting to defraud the defendant, and to impute to plaintiff the crime of attempting to pass counterfeit money; and that thereby, and as the direct result of said alleged acts of said conductor, the plaintiff suffered shame and mortification, ” etc. This was not only a comment on the evidence, but had the effect to inject into the case an element of damages in actions for verbal slander. The slander attempted to be alleged, and which is carried into the instruction, is the crime of an attempt to pass counterfeit money. The allegations of the petition are insufficient to charge that offense for the reason the offense can not be committed unless the person who malees the attempt knows at the time he makes the offer, that the money he offers to pass as genuine is in fact counterfeit. Scienter must be both alleged and proved; it is not alleged in the petition, nor is there a word in the evidence that the conductor charged the plaintiff with an attempt to pass upon him a counterfeit one-dollar bill, knowing it to be counterfeit. All it does show, is that the conductor insisted that the bill was counterfeit, while plaintiff maintained it was genuine and neither would yield his opinion. There is not a word of -evidence that the conductor accused the defendant of trying to pass the bill knowing it to be counterfeit, or that he accused the plaintiff with any bad motive in offering to pass the bill, nor do the words spoken by the conductor to the plaintiff impute to the latter a crime or a dishonest motive, yet the jury was authorized to mulct the defendant'in damages because the conductor, as plaintiff’s own evidence shows, refused to receive in payment of plaintiff’s fare, money that he honestly believed to be spurious. The defendant company is liable to answer in damages for the willful and malicious torts of its agents committed within the scope and course of their employment, but the honest expression of the opinion of a conductor of a car or train of cars that money offered to him in payment of a fare is counterfeit and his refusal to accept it for that reason, is not a tort, though he be mistaken in his judgment of the money, and the question of whether or not the company would be liable, had verbal slander been charged and proven, is not in the case.

2. The plaintiff’s character was not attacked, was not put in issue by the pleadings, and it was not essential that he should prove it to entitle him to recover; nor was it an element in the estimation of his damages, for the measure of damages for a wrongful and unjustifiable assault and battery upon a man of good character is the same for a like assault upon a man of bad character, and defendant’s objection to the evidence of plaintiff’s good character should have been sustained.

3. In respect to defendant’s refused instruction, we do not think it properly declared the law. It is not the law that it was plaintiff’s duty to leave the ear when he was told to do so by the conductor, in the circumstances proven in this case. Defendant was a public carrier of passengers for hire; plaintiff was rightfully aboard the car, had tendered and continued to tender lawful money to pay his fare, and he was at no time in the wrong and unquestionably had the right to remain upon the car until he should arrive at his destination; being in the right and the conductor in error, he had a right to object, protest and reasonably resist his expulsion from the car, and forfeited none of his rights to recover damages by resisting, within lawful bounds, the wrong and indignity perpetrated upon him by the conductor in ejecting him from the car. It is not the law that one must submit to wrong for fear that he will lose some of his rights; on the contrary, he may manfully assert his rights and make all lawful efforts to maintain them.

The eases of Logan v. Railroad, 77 Mo. l. c. 669, and C. B. & Q. R. R. v. Parks, 18 Ill. 460, cited and relied upon by defendant as supporting its refused instruction, have no application to the facts in this case. In those cases the complainants were wrongfully on the cars of the railroad company; had they been rightfully there, another proposition would have been before the courts, and we think a very different conclusion would have been reached.

For the errors above noted, the judgment is reversed and the cause remanded.

Reyburn and Goode, JJ., concur.