173 Mo. App. 248 | Mo. Ct. App. | 1913
Lead Opinion
—This suit was instituted to recover damages for an assault made on the plaintiff by the defendant’s station agent at the town of Pomona, on the 11th. day of October, 1911. The pleadings and evidence authorized a verdict for both compensatory and exemplary damages, and the jury returned such a verdict, assessing the plaintiff’s compensatory damages at the sum of $750, and his exemplary damages at $2000.
While appellant assigns several reasons for a re-' versal of the judgment, the only one seriously urged relates to the instruction as to exemplary damages. The instruction reads: “The court instructs the jury that if you believe and find from the evidence that the assault and attack upon plaintiff by the agent of defendant, if you find there was such an assault, was wilfully and maliciously made, that is to say, if it was intentional and without just cause, you will assess a further sum by way of punitive or exemplary damages against defendant, ” etc.
The counsel agree that it lies within the discretion of the jury as to whether or not punitive damages will
The rule seems to be that when an instruction is given as to punitive damages, the court should clearly tell the jury that the giving of such damages is a matter of discretion. [Hauser v. Steigers, 137 Mo. App. 560, 119 S. W. 52; State ex rel v. Fidelity & Deposit Co., 94 Mo. App. 184; Callahan v. Ingram, 122 Mo. l. c. 373, 26 S. W. 1020; Ill. C. R. R. Co. v. Houchins, 1 L. R. A. (N. S.) 375; Johnston v. Wells, 112 Mo. App. 557, 87 S. W. 70; Chesapeake & O. Ry. Co. v. Conway, 124 S. W. 861.]
In Callahan v. Ingram, supra, our court said: ‘•‘Exemplary damages are.given by way of punishment,- and the jury should be so instructed thereon as to leave no doubt on the subject. ”
In State ex rel. v. Fidelity & Deposit Co., supra, the question of the right to recover interest was for the jury, and the instruction read: “The court instructs the jury that if you find for the plaintiff you should return a verdict for the amount of the balance due on the note, not exceeding the value of. the stock of goods, furniture and fixtures levied upon by the sheriff under the execution, on the twenty-seventh day of August, 1900, to which you may add six per cent interest from that date to the present time.” While the court affirmed the judgment, yet, relating to this instruction, it said: “The instruction is not as definite and full as -it should have been in calling the attention of the jury to the fact that the allowance of interest was in their discretion.”
In Hauser v. Steigers, supra, the jury were told if they found a verdict for plaintiff in estimating his punitive damages, they might consider defendant’s wealth, etc. In speaking- of this instruction Judge Go odd said: “In itself and unless the meaning was sufficiently clarified by other instructions, this charge
In Illinois Central R. R. Co. v. Houchins, supra, the court said: “When an instruction is given as to punitive damages the court should clearly tell the jury that the giving of punitive damages is a matter of discretion.”
I believe the rule is correctly and very clearly stated by Judge Ellison in Johnston v. Wells, supra, as follows: “It is proper to inform the jury of their province to allow such damages if they see fit to do so, but there should not be a direction given them which, fairly interpreted, withdraws such discretion and makes the allowance mandatory. ”
Believing that this statement of Judge Ellison’s correctly declares the law, there only remains for consideration the one question: Does the instruction, when fairly interpreted,' withdraw such discretion from the jury? In determining this question, no unusual or technical meaning of the word “will” should be resorted to. • '
In State ex rel. v. Hope, 121 Mo. 34, 25 S. W. 873, the question of interest was in the discretion of the jury, and the court gave an instruction, which, on the measure of damages, read: “If you believe that afterwards, the defendant Hope, as sheriff pf Jackson county, under and by virtue of said writs of attachment against said Schneider, levied upon and took said property or any part thereof, then you will find in this action for the plaintiff, and assess his. damages at the value of the property so taken, together with interest at the rate of six per cent per annum, ” etc. 'The court held that the instruction, as framed, was erroneous, because it interfered with the discretion of the jury regarding interest.
In Carson v. Smith, 133 Mo. 606, 34 S. W. 855, the instruction read: “Then plaintiff is entitled to puni
In Di Palma v. Weinman, 103 Pac. 782, 24 L. R. A. (N. S.) 423, an instruction was given as follows: “If you find the plaintiffs suffered any damage, you will allow interest at the rate of six per cent per annum on the amount of property injured or‘destroyed. ” It. was held that the instruction was erroneous because the question of interest was in the discretion of the jury, and that the instruction deprived the jury of that discretion.
In North Chicago R. R. Co. v. Zieger, 182 Ill. 9, 74 Am. St. Rep. 157, the court said: “To tell a jury that, if they find from the evidence the plaintiff has, by a preponderance of the evidence, proved the material allegations of his declaration, their verdict‘will’ (instead of ‘may’)be in bis favor, is to state the law, and cannot, by any fair understanding of words, be an invasion of the province of the jury. ‘May’ could not, in such connection, properly be understood in the alternative, as ‘may’ or ‘may not’, for, under the premise of the instruction, there was but one proper thing for the jury to do, and that was to find for the plaintiff. ”
Plaintiff’s second instruction reads: “If your verdict is for the plaintiff, you will assess his compensatory damages at such sum as you may believe and find from the evidence, ”-etc. In Thompson on Trials, 2d volume, beginning at page- 477,- numerous precedents of instructions are given for compensatory damages, and it will be noticed that the word “will” is used in nearly every instance.
Counsel for plaintiff earnestly insisted in the trial court and in this court, that their instruction as given, contained the word “may” where the word “will” now appears; but this question was before the trial judge at the time he approved the bill of exceptions, and the bill, as approved, contains the instruction as copied herein, and of course, we are confined to the bill of exceptions and must be guided absolutely by it.
Having reached the conclusion that the instruction as given was erroneous, can the judgment be affirmed on the theory that, under the evidence, the error was harmless, and that the jury would have returned a verdict for $2000 punitive damages, if the word “may” had been used instead of “will,” in the instruction? 1
As I understand our Supreme Court decisions, they plainly declare to give an instruction that tells the jury to allow, or that plaintiff is entitled to, punitive damages if they find a certain state of facts to be true, is reversible error.
This suit was not instituted against the station agent, who, it is claimed, committed the assault on plaintiff, but against the corporation in whose employ the agent was at the time, and I am not prepared to say that the jury, if properly instructed as to their discretion in the matter, would have returned a verdict against the employer for $2000 punitive damages.
The premises considered, if the plaintiff will, within ten days, remit the sum of $2000 allowed as punitive damages, the judgment will be affirmed; otherwise, it will be reversed and the cause remanded.
Dissenting Opinion
DISSENTING OPINION.
—The plaintiff, who was recovering from typhoid fever and who weighed twenty-five pounds less than his usual weight, applied at the ticket window of the office of the defendant at Poinona,
At the time of the trial the agent was yet in charge of this same station and was the only witness who testified in behalf of the defendant as to his theory of the altercation, and he, in a way, seeks to justify the assault by claiming that the plaintiff had unreasonably criticized his wife and that he was thereby provoked to the assault; but the agent’s wife was not a witness nor were there any witnesses who corroborated the agent on this proposition nor as to what he says took place just before the assault. The defendant did offer a few witnesses who testified that the attack made by the agent on plaintiff was not as vicious and brutal as testified to by the plaintiff. One of the witnesses who testified in behalf of the defendant did not by any means corroborate the agent as ‘ to how the difficulty arose.
The rule announced in the majority opinion in this case that exemplary damages are matters that rest wholly within the judgment of the jury and that the jury should, as to such damages, be left free to act, I do not question. But T am unwilling to agree that this case should be reversed and remanded for a new trial on account of the use of the word “will” instead of
If we are to say in this case that it is impossible to ascertain whether or not the jury was misled by the use of the word “will,” except to give the word its correct meaning, then I suggest that the word has not an unequivocal imperative meaning. There are credible authorities to the effect that the word does not imply a command or direction as here used. For instance, one author says that, “In simple, direct statements, to express mere futurity, use shall in the first person and will in the second and third; to express volition, promise, purpose, determination,- or action which the speaker means to control, use will in the first person and shall in the second and third persons.” And in the case of State v. Hilsabeck, 132 Mo. 348, 359, 34 S. W. 38, it is noted, that the “word ‘will’ has not an imperative force like the word ‘shall.’ ” It is not at all probable that the jury in this case anticipated that they would be disregarding the court’s instruction if they failed to assess any punitive damages. It occurs to me that if the jury were not favorable to the proposition of allowing punitive damages, but were forced there by the court’s instruction complained of, that they would not have allowed two thousand dollars therefor. Even adopting the construction contended for by the, defendant in this case, there was no amount fixed by the instruction for the jury to assess and, if we construe the instruction as insisted upon by defendant, the request of the court would have been met by the allowance of one dollar punitive damages, so that for all above that amount the jury acted independently of the court.
The cases cited in the majority opinion concerning ■interest do not appeal to me as applicable to this case, because in those cases the question of interest rested in the discretion of the jury and they,were directed
The instruction condemned in the case of Carson v. Smith, 133 Mo. 606, 616, 34 S. W. 855, tells the jury that the plaintiff is entitled to punitive damages and that the jury will allow him such.
In the case of Houser v. Steigers, 137 Mo. App. 560, 566, 570, 119 S. W. 52, where an instruction is complained of, it was said that the instruction “was suggestive of a notion that punitive damages must accompany a verdict for plaintiff, ” whereas, in the ease at bar, at the request of the defendant, the jury were advised that they could not allow the plaintiff punitive damages if they found certain facts. That case does not strike me as unlike this case, and the judgment there involved was affirmed.
The Supreme Court in the case of State v. Hilsabeck, supra, 132 Mo. 348, 359, 34 S. W. 38, refused to reverse a criminal case on account of the use of the word “will” where it was contended the word “may” should have been used.
An examination of the case of Nicholson v. Rogers, 129 Mo. 136, 31 S. W. 260, cited in the majority opinion to support the harmful error theory there advanced, will disclose that the jury were there instructed (page 139) that they must assess an amount of damages in behalf of plaintiff to punish the defendant for his wrongful and malicious conduct.
The fact that this suit is against the employer instead of against the agent suggests no reason to me for holding that the error complained of was detrimental to the defendant. That portion of the judgment af
Instruction No. 3, given at the request of the defendant, reads as follows: “In this case if you find the plaintiff was assaulted and beaten by the defendant’s agent, still you cannot assess any damages by way of punishment, or what is termed in these instructions as punitive damages, if you find that plaintiff sought, brought about or voluntarily entered into the difficulty which provoked the assault. One cannot claim damages for humiliation and insult when he, by his own voluntary misconduct, brings on a difficulty in which he receives bodily injury.
“You are instructed that if you find that plaintiff was assaulted by the defendant’s agent, still if he voluntarily entered into or brought about the difficulty in which he was assaulted, you may take this into consideration in assessing any damages for the plaintiffs, and you then cannot allow anything as punitive damages or for humiliation or insult.”
By this instruction I think the defendant, impliedly at least, recognizes the fact that the jury would be induced by the facts to enter into the question of and be disposed to give punitive damages and, therefore, it requested and obtained the instruction that if the
This is a case, in which 'the judgment, to my mind, is so manifestly for the right party that it presents an instance wherein a court should obey the mandate of our Legislature (section 2082, R. S. 1909) and not reverse the trial court unless it shall believe, which I do not in this case, that error was committed in the trial affecting the merits of the ease. I think the judgment of the trial court should be affirmed for both the compensatory and punitive damages.