108 Mo. App. 703 | Mo. Ct. App. | 1904
Lead Opinion
— The charging part of the petition is as follows:
“Plaintiff states that on the twenty-fifth day of November, 1902, he was a passenger on one of the cars of defendant on Easton avenue and that he then and there paid to defendant’s agent his fare for transportation as a passenger, and that he was lawfully entitled to transportation in the said car of defendant as a passenger. That it was then and there the duty of defendant, its agents and servants in charge of said car to safely transport said plaintiff to his destination on said Easton avenue line. Plaintiff states that on said last-mentioned date and while plaintiff was a passenger as aforesaid on said car of defendant, the defendant’s agent in charge of the said car, the conductor in charge of said car, without cause wrongfully, unlawfully and maliciously cursed and abused the plaintiff, called him vile, profane and obscene names in a loud voice by which plaintiff was greatly annoyed and humiliated and the said conductor wrongfully, unlawfully and maliciously assaulted and attempted to assault and strike plaintiff and said conductor drew a large knife from
The evidence shows that plaintiff, on November 25, ' 1902, was a passenger on one of defendant’s street cars traveling west on Easton avenue, in the city of St. Louis. While he was on the car, the conductor thereof, without provocation, became angered at plaintiff and applied to him vile and opprobrious epithets and without lawful excuse assaulted him and violently pushed him off the car. Defendant’s evidence tends to show that the conductor did not apply opprobrious epithets to plaintiff or use profane or objectionable language in his presence, that he did not assault plaintiff or put him off the car, but that he was put off by two police officers for interfering with the conductor in the lawful discharge of his duties.
The court gave the following instruction for plaintiff, to the giving of which defendant saved an exception: '
‘ ‘ The court instructs you that if you find from the evidence that the defendant is a corporation engaged in the business of transporting passengers from place to place in the city of St. Louis for hire, and was such
The verdict (signed by nine jurors) was for plaintiff for twenty-five dollars actual and four hundred and seventy-five dollars punitive damages. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed^
The instruction authorized the jury to find for plaintiff, if they found from the evidence that the conductor, “without cause, cursed and abused the plaintiff and called him vile names, or assaulted and struck plaintiff, or violently ejected plaintiff from said car.” This instruction authorized the jury to find for the plaintiff, if they found the conductor “without cause, cursed and abused plaintiff and called him vile names, ” though they might find from the evidence he was neither assaulted nor put off the car by the-conductor; in other words, it authorized a recovery for mere opprobrious words unaccompanied by any physical injury or violence or offer of violence to the person of plaintiff. The petition did not count on the opprobrious language of the conductor as an independent cause of action. The offensive language is introduced as pre
Concurrence Opinion
— I agree to this opinion on the ground that the testimony shows the insults and abusive epithets addressed by the conductor to the plaintiff were in connection with the assault and the ejection from the car and are to be regarded as an aggravation of the assault and ejection, rather than an independent tort. This is the position of plaintiff’s counsel, who says in his brief:
“Plaintiff’s petition does not contain a count for damages on the sole ground that the conductor cursed the plaintiff and called him vile and profane names, but the petition does allege bad language coupled with ‘abuse, ’ assault, blows, attempt to stab, and violent ejection from the car. All these acts were simultaneous and continuous — they completed the one offense and they cannot be separated. The evidence is conclusive on this point and the instruction was correct. ‘Abuse’ implies physical injury.”
Now the instruction for the plaintiff is not correct, as it treats the abuse, the assault and the ejection as each a. separate ground of recovery.