192 Mo. App. 419 | Mo. Ct. App. | 1915
Lead Opinion
Plaintiff’s petition is in three counts. The first is for damages on account of defendant’s servants refusing to permit plaintiff, with a proper ticket, to enter its cars as a passenger. The second is for damages resulting from defendant arresting plaintiff unlawfully, wrongfully, and maliciously, without any lawful warrant or authority, and putting him in jail for several hours in the nighttime. The third count dropped out of the case through a demurrer to the evidence thereon. There was a verdict and judgment for plaintiff on each of the other counts for both compensatory and punitive damages.
It appears that on October 30,. 1913, plaintiff, intending to take passage on defendant’s railroad at Lincoln, Nebraska, to his home at Belleville, on a train due to leave Lincoln at about six o ’clock p. m., went to
The first complaint by defendant is directed at plaintiff’s instruction No. 4, on the first count relating to the refusal to allow plaintiff to get upon the car and to carry him home. It stated that plaintiff was entitled to a finding in Ms favor on that count, if defendant “without any fault on plaintiff’s part,” refused to let him on the train. Defendant insists that even though plaintiff was not intoxicated, yet if its servants “in good faith believed he was” they were to be excused for refusing to carry him, and that, the instruction omitted that defence. As to punitive damages that is correct. But conceding that the instruction should ■ have embodied such defensive theory, it was cured by defendant’s instruction “D,” which stated such good faith belief to be a defence and directed that if the jury found that to be a fact to return a verdict for defendant on the first count. The decisions of the Supreme Court to this effect are collated and discussed in Holman v. City of Macon, 177 S. W. 1078. Again, in the case of Bettoki v. Coal & Mining Co., announced December 6, 1915, and not yet reported, the same point is decided and further authorities cited.
Defendant next insists that no case was made under the second count based on the arrest and imprison
The next objection is based on the proposition advanced by defendant that “one is not guilty of false arrest if a warrant is sued out within a reasonable time.” In support of this there appears in the case some evidence that a warrant was issued for plaintiff on the next day. We can dispo’se of this point in this particular by the fact that the petition is not founded on a wrongful arrest without a warrant. His action is for a wrongful arrest and imprisonment. The manner of his arrest, nor the technical observation of the forms necessary to legally justify an arrest, do not concern him. His action is based on the theory that he, an innocent man, at the request of defendant’s agent, was wrongfully apprehended and incarcerated.
But defendant’s argument under this point comprehends a broader proposition than .the statement made of it. The idea advanced is that plaintiff was arrested without a warrant, but within a reasonable time a complaint was filed and a warrant duly issued. That the case was docketed for trial, but plaintiff quit the jurisdiction of the court and the case is yet pending. And it is claimed that a case for either malicious prosecution, or false imprisonment, does not lie until the proceeding is disposed of, since if the defendant is found guilty, there is no false imprisonment.
This is not an action for malicious prosecution. It is for false imprisonment. Bnt conceding that in all cases of false imprisonment, where there has been no delay in the prosecution under a proper complaint and warrant, it would be necessary for the plaintiff to show that the prosecution resulted in his acquittal, we think if it appears that the prosecution has been abandoned by the State or city without trial, it is tan
Defendant made an attempt to submit this question to the jury by offering refused instruction, “ J.” The instruction was rightfully refused for the reason that it omitted the -essential hypothesis whether the case
It wa's charged in the second count of the petition that plaintiff was unlawfully arrested and “cast into jail and detained from six o’clock p. m. until the next day to his damage in the sum of five thousand dollars actual and ten thousand punitive damages.” Under this charge an instruction authorized the jury to consider, among other things, plaintiff’s loss of time, and interference with his business. The petition does not charge damage from these things, and evidence should not have been admitted to prove such damage. But we think the verdict shows that no substantial injury resulted which may not be cured by a remittitur. Such damages are recognized in this State as compensatory and the verdict assessing compensation was only fifty dollars. We are assuming that defendant saved the point in its motion for new trial, though it is doubtful if it did. Subdivision 9, is the only one referring to the matter - of admitting improper testimony and that is not specific. It does not state that the evidence broadened the petition, or that the matters thus proven were not pleaded. That particular part of the case is not briefed.
Defendant’s point four concerning plaintiff’s instruction, and also his objections to numbers 5 and 6, are unsubstantial.
The trial court gave the following definition of malice; “Malice as here used does not mean ill will or spite, but the intentional and willful doing of a wrongful act in a wanton or oppressive manner and with a
To the complaint of excessive damages, we answer that accepting the case as made for plaintiff, the sum allowed ($1520) is quite moderate.
If plaintiff will remit fifty dollars, the compensatory damages allowed on the second count, within fifteen days the judgment will be affirmed, the cost of the appeal to be taxed against him, otherwise it will be reversed and the cause remanded.
The order to remit fifty dollars was subsequently changed to an order to remit forty-nine dollars and ninety-nine cents, leaving a judgment for nominal damages in the sum of one cent.
Rehearing
Defendant insists that instead of permitting plaintiff to cure the error in his instruction on the measure of compensatory damages under the second count, by a remittitur, we should remand the cause for another trial. Defendant says “that it is not within the province of this court to state that if the damage instruction had been proper, the jury would necessarily have found any actual damage.” “In other words,” says defendant, “had the jury been properly instructed upon the issue of actual damages on the second count, the finding of the jury might have been in the negative. Hence, this court is not justified in assuming that the jury would have found under a proper instruction any actual damages whatsoever, and that in the absence of a finding of actual damages, punitive damages cannot be allowed.”
The answer to this is that under the second count in the petition, in connection with the finding of the jury, there was bound to be a finding of at least nominal damages, regardless of the unpleaded matter in the instruction. It is pleaded in the petition that plaintiff was wrongfully, unlawfully and maliciously, and without lawful authority, arrested and cast intp jail and detained several hours. There was no dispute about the arrest and imprisonment and the jury have found that it was wrongful, hence a verdict for some amount of actual damages was imperative, even though it be no more than for a nominal sum; the wrong “being of that character from which the law implies such damages.” [Courtney v. Blackwell, 150 Mo. 245, 277; Hoagland v. Amusement Co., 170 Mo. 335, 345.] And nominal compensatory damages will support a verdict for punitive damages. [Lamport v. Drug Co., 238 Mo. 409.]