Mitchell v. United Railways Co.
102 S.W. 661
Mo. Ct. App.
1907
Check Treatment
BLAND, P. J.

(after stating the facts.) — 1. From the instructions asked by both.parties and given by the court, it will be seen the cause was tried upon the theory that the conduсtor had a lawful right to defend himself, if first assaulted by plaintiff, hence plaintiff’s contention, that under a general denial, the defense of son assault is unavailable, cannot be acceded to, for the reason the cause must be disposed of on appeal upon the same theory the рarties assumed at the trial. [Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354, 78 S. W. 579; McDonnell v. DeSoto Sav. & Bldg. Assn., 175 Mo. 250, 75 S. W. 438; Black v. Railway, 172 Mo. 177, 72 S. W. 559; North St. Louis B. & L. Assn. v. Obert, 169 Mo. 507, 69 S. W. 1044; Heman v. Larkin, 108 Mo. App. 392, 83 S. W. 1019; Coal Co. v. Watson, 107 Mo. App. 451, 81 S. W. 287; Strother v. DeWitt, 98 Mo. App. 293, 71 S. W. 1129.]

2. It is contended by defendant, that the injuries complained of by plaintiff were the direct and naturаl result of his own wrongful act and he ought not to be heard to complain; and that the rule, that mere words, however insulting and provocative of аnger, will not justify an assault, does not apply in a civil suit when brought by the one assaulted against his assailant, but on the ‍​‌​‌‌‌‌​‌‌‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌​​‌​‌‌​‌‌​‌‌​‌‌​​‌​‍contrary, if the opprobrious eрithets were such as were calculated to excite sudden passion, no' recovery can be had for the assault. It is very well-settled law that if a man voluntarily enters into a fight, not in self-defense, and gets the worst of it, he cannot recover damages, unless the beating given by him by defendant was еxcessive or unreasonable. [Galbraith v. Fleming, 27 N. W. 581.]

In Harrison v. Fink, 42 Fed. 787, the conductor of a train rightfully and quietly endeavored to get plaintiff off the train and gently laid his hand оn plaintiff’s coat sleeve. Plaintiff shoved the conductor’s hand back and the conductor took him by the collar. Plaintiff again *12shoved his hand baсk and refused to leave the seat, saying to the conductor that if he hurt him he would kill him, whereupon the conductor drew and presented a pistol in' plaintiff’s face, at the same time saying to the passengers, “Be quiet, he is a coward.” No further demonstration was made and it was held that plаintiff, after acting in the manner he did, should not be heard to complain.

Eads v. Railway, 43 Mo. App. 536, was a case where a misunderstanding arose between the conductоr, and the plaintiff, a passenger, about a, nickel given in change by the former to the latter. Plaintiff ‍​‌​‌‌‌‌​‌‌‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌​​‌​‌‌​‌‌​‌‌​‌‌​​‌​‍thought the nickel was bad. The conductor said it wаs good, and plaintiff said he was “a liar.” Judge Ellisojnt, writing the opinion of the court, said:

“It is everywhere agreed that carriers must treat their passengers with respect and must endeavor to protect them from injury or insult, not only by their employees but from strangers and fellow passengers. [Spohn v. Railroad, 87 Mo. 74.]

“Public vehicles where women and children are frequently found, and where they have a right to- demand security from disorderly scenes, are esрecially ill-adapted to exhibitions of belligerence either on the part of the carriers, servants, or the passengers. The pricе of a passenger’s right to carriage, good treatment and protection by the carrier is not alone the money he pays, but is also his own good behavior. . . .

“The conductor had a right to express his opinion, in an inoffensive way, that he thought the nickel a good one. If, thereforе, the plaintiff, without having been reasonably provoked thereto- by the improper conduct of the conductor, wilfully and ‍​‌​‌‌‌‌​‌‌‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌​​‌​‌‌​‌‌​‌‌​‌‌​​‌​‍in anger called him a liar in the presence and hearing of the other passengers, he was guilty of disorderly conduct and the jury should have been so instructed as was asked in defendant’s refused instruction, numbered 11, and plaintiff’s instruc*13tion should not have submitted that matter to the jury.” It was ruled that plaintiff’s disorderly conduct justified his expulsiоn from the car.

It may be conceded that plaintiff’s disorderly conduct would have justified the conductor in putting him off the car, but he did not do this, or attempt to do it. Instead of doing what he might have lawfully done, according to plaintiff’s evidence, the conductor struck him a severe blow over thе eye. The question for decision, therefore, is not to find plaintiff guilty of disorderly conduct but to determine whether the insulting epithet applied by him to the conductor justified the assault. The rule in criminal cases, that mere words, however insulting and opprobrious, will not justify an assault, is in this State, and most everywhеre else, the rule in cases of trespass for assault and battery. [Berryman v. Cox, 73 Mo. App. 67; Yeager v. Berry, 82 Mo. App. 534; Murray v. Boyne, 42 Mo. 472.] Kinkead says: “Nothing seems better settled than that words, however insulting or оffensive, or threats, will not justify an assault and battery.” [1 Kinkead on Torts, sec. 208.] Fiero says: “The mere utterance of words, however insulting and unjustified, are not an excuse in assault, although evidence thereof may be given in mitigation of damages. :So held as to a common carrier where a passenger used indecent, insulting and provoking language to a conductor.” [Fiero on Torts, p. 435.] Cooley says: “As words never constitute an assault, ‍​‌​‌‌‌‌​‌‌‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌​​‌​‌‌​‌‌​‌‌​‌‌​​‌​‍neithеr will they justify the employment of force in protection against them, however gross or abusive they may be.” [1 Cooley on Torts (3 Ed.), p. 289.] We note these exceptions to the rule: If the insulting words are used for the very purpose of provoking and bringing on the assault, or if grossly vulgar and insulting language is emplоyed to a female, in the presence of her escort or members of her family, her escort or member of her family would be justified in putting a stоp to it by assaulting the offender, if necessary. *14For the purpose of mitigating punitive damages, all the facts and circumstances under which the assault was made are admissible in evidence. [Joice v. Branson, 73 Mo. 28; Nichols v. Winfrey, 79 Mo. l. c. 552; Michael v. Jones, 84 Mo. l. c. 581; Berryman v. Cox; Yeager v. Berry, supra.] Thе instructions given for plaintiff are in accord with the law as disclosed by the above authorities. The instructions given for 'defendant presented the dеfense in the most favorable light permissible.

3. Defendant insists that the damages are excessive and the cause is not one for punitive damages. In actions for purely ‍​‌​‌‌‌‌​‌‌‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌​​‌​‌‌​‌‌​‌‌​‌‌​​‌​‍personal torts, there is no scale by which the damages can be graded with any certainty. (Edwards v. Railway, 82 Mo. App. 478) and it is only where thе result of the jury’s deliberation shocks the understanding and impresses the conviction that the jury were influenced by passion or prejudice that cоurts are called upon to interfere. [Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655; Rice v. Railway, 101 Mo. App. 459, 74 S. W. 428.] In cases of common assault and battery, where but one blow was struck and no severe or disabling injury was inflicted to indicate express malice, the courts take into consideration (and juries should) such extenuating circumstances аs are admitted by the complaining party. Plaintiff applied to the conductor a stinging and insulting epithet, calculated to arouse his passiоns; an epithet which, when applied to a gentleman is usually resented by an instantaneous blow. In some jurisdictions the epithet itself justifies an ordinary battery, and in this jurisdiction has always been regarded as an extenuating circumstance. It was plaintiff’s misconduct that provoked the conductor to strike him. His injury was but slight and he ought not to have large compensatory damages and no punitive damages at all. Impartial and considerate juriеs are not in the habit of awarding more than nominal damages in like circumstances. The award of the sum of $1,000 as damages is *15shocking to the understanding, and convinces us the result of the jury’s deliberation shows unmistakably that they were influenced by prejudice or passion. Wherefore the judgment is reversed and the cause remanded.

All concur.