123 Mo. App. 22 | Mo. Ct. App. | 1907
This action is to recover damages from the defendant. The plaintiff prevailed in the trial court.
This man was John Henley and he testified that he lived in Joplin; he said: “A couple of young ladies and a little girl got off (the car) and came in (the meat market). This young lady turned the little girl over to me and I told her I would bring her home on the car. Which I did. The little girl was crying and cold when she was brought into the shop. She couldn’t give any coherent account of herself but had a note telling where to take her. It told where the little girl lived. I brought her over to Joplin. No cars run on C street. I didn’t know she lived so far out. The little girl was crying with cold so I took off my coat and put it around her. I had left my overcoat at home and had a dress coat on. I went in my shirt sleeves. I have seen her since, it is Dicey Harless. I volunteered to take her home, and brought her over to Fourth and Main, then walked from there to Smelter Hill. We weren’t very long going from
The instructions for plaintiff permitted a recovery for fright, mental suffering and anguish. The defendant assails the propriety of such instructions on the ground that where there is no bodily hurt mental anguish and fright are not elements of damage. That is the law in cases of mere negligence. [Connell v. Western Union Tel. Co., 116 Mo. 34; Trigg v. Railway, 71 Mo. 117.] But in cases where the wrongful act is accompanied by offensive, insulting and humiliating conduct, or where the act itself is willful and inhuman, such elements enter into the damages which may be recovered. [Smith v. Railway, 122 Mo. App. 85, 97 S. W. 1007; Glover v. Railway, — Mo. App. —; Hickey v. Welch, 91 Mo. App. 1; Spry v. Railway, 73 Mo. App. 203.] This rule is especially recognized by the Supreme Court in the cases above cited.
The question remains, whether the conduct of the conductor was inhuman in the circumstances developed by the evidence. The first of these circumstances is that
The cases cited by defendant we do not think apply to the facts of this case. In Strange v. Railway, 61 Mo. App. 586, the evidence merely shows that on an afternoon in August tire plaintiff, a passenger fourteen years old, .was carelessly carried by her statioñ a mile and a quarter, when the train was stopped and she was invited to alight by the conductor who pointed out the station. She claimed to have been frightened by fear that she might meet tramps, or someone else. The circumstances of that case were not thought to disclose conduct which could be called inhuman. So in Deming v. Railway, 80 Mo. App. 152, the court evidently did not consider that the careless act of carrying the plaintiff, a woman passenger, one-half mile beyond her station and there putting her off in the dark, was inhuman or malicious; for these elements are recognized in the opinion (p. 158) as being exceptions to the rule there stated. The same may be.said of Snyder v. Railway, 85 Mo. App. 495. In Rawlings v. Railway, 97 Mo. App. 515, a boy four years old accompanied by his older sister twelve years old; was carelessly carried by their station a distance two hundred and fifty yards and there put off in daylight, though it was getting late. But it appears to have been specially found (p. 517) that there was no element of inhumanity in the case. It is readily seen that neither of these cases is applicable to the facts and circumstances of the case in hand.
From the standpoint of her rights, as we herein determine them, we do not believe the instructions, considered as a whole, are subject to criticism. The first one for plaintiff does not assume plaintiff was a passenger. It does assume that the conductor received her on board “for the purpose of transporting her,” and he did, though he afterwards discovered she was not entitled to be classed as a passenger. If the expression, “gross and
In one of plaintiff’s instructions the court informed the jury that if the conductor’s act was wanton and malicious and committed in willful disregard of plaintiff’s rights, it would “justify” exemplary damages. Such damages were not allowed, and hence the defendant draws the conclusion that the jury found there was no wanton and malicious conduct and willful disregard of consequences on the part of the conductor. We think the conclusion drawn does not follow. It is true the jury did not find for exemplary damages when they might have done so. They were not required absolutely to so find and they concluded they would not. But under the first instruction they must have found the act was willful and malicious, as those words are known to the law, and that it was an act of inhumanity. For, while those words are not used in the instruction, yet such state of case was submitted which, if believed, made a case which could only be characterized as malicious and inhuman.
Objection is made to the conduct of counsel for plaintiff in his argument of the case. A part of these objections are embodied in the bill of exceptions proper which purports to set down matters' occurring at the trial (including the argument of counsel) in the order in which such matters transpired. Other objections are set up and stated in the motion for new trial as having occurred at the argument, and to support these affidavits were filed. The first question is, can we consider the latter objections. We think we cannot. A bill of exceptions is signed by the trial judge and filed. Thus becoming a part of the record it vouches absolutely for what took place at the trial and anything outside of that cannot be considered as verity. Thus the bill of exceptions now considered vouches that a motion for
Affidavits are frequently filed in support of a motion for new trial and are considered by the trial court in passing on the motion, and may be by an appellate court in certain instances. But they relate to things which occurred outside the trial and are of matters to which the court’s attention could not have been called when transpiring. But it should be manifest that things pertaining to the trial of a cause which should be set down in a bill of exceptions if they did transpire, ought not to be helped out by statements made by the attorneys in the motion for new trial and by affidavits in support thereof and in opposition thereto.
The only matters which the bill of exceptions vouches to us consist of the following:
“And afterwards, on the argument of this case before the jury, one of the counsel for the plaintiff, E. O. Brown, made the following remarks, to which thé defendant at the time objected, to-wit:
“The Court: Let the record show that the attorney said, ‘This testimony might be said to be manufactured of much same stuff as dreams are made of,’ a Shakespearean quotation, part of it. Let the record show on account of the excellent literary merit his objection is overruled.
“Mr. Halliburton: Defendant excepts.
“And further in the argument before the jury, counsel for plaintiff, E. O. Brown, made the following remarks to which the defendant at the time objected:
“E. O. Brown: I characterize such testimony as the baseless fabric of a dream. It is a dream.
*33 “Mr. Halliburton: Defendant objects.
“Tbe Court: The' objection is overruled. That is the remainder of the Shakespearean quotation. He stopped before he got it all in. I believe they hold a man can go into the literary state.
“Mr. Halliburton: Defendant excepts.
“And further in the argument before the jury, counsel for plaintiff, E. O. Brown, made the following remarks, to which the defendant at the time objected:
“Mr. Brown: This little child, who had been thrown irom this car by the inhuman and oppressive act of this conductor.
“Mr. Halliburton: I object to that.
“The Court: Yes. Nobody testified thrown off.
“Mr. Brown : I withdraw the thrown off. I meant put her off. I didn’t intend to put it that way, your Honor. I do not wish to charge the conductor with having used any personal violence in putting her off.
“Mr. Halliburton: I object to the action and excuse, and except.”
We do not regard the objections as well taken. The' remark that the child was “thrown from the car” was immediately recalled and disavowed. As to the other objections, the trial court’s view was correct. The things complained of were mere matters of poetical license in which nearly all lawyers indulge.
' An examination of all points made against the judgment has not led us to believe we should interfere and it is affirmed.