Sommerfield v. St. Louis Transit Co. , 108 Mo. App. 718 ( 1904 )

REYBURN, J.

(after stating the facts). — 1. The plaintiff’s case as stated in the trial court was not for assault and battery, but for a tortious ejection or wrongful ejectment from the car upon which he was rightfully a lawful passenger. There is no declaration upon an illegal assault on or violence inflicted on plaintiff’s person, but averments of an illegal expulsion, willful and wanton, but without force, from the car upon which, by virtue of the transfer checks received from the previous conductor, and tendered to the Cass avenue conductor, plaintiff and his sister were entitled to be transported to their destination. Therefore, section 4275 of the statutes, providing for the limitation of time within which actions for assault, battery and other torts specified should be commenced, lacked application; but plaintiff’s right of action, as pleaded, was not barred under section 4273, which comprehended it. The refusal, therefore, of the imperative instruction asked by defendant at close of the testimony, and the overruling of defendant’s objection to the introduction of any evidence at the threshold of the trial, alike constitute no error.

2. The court refused the following instruction tendered by defendant:

“The court instructs you that it is the duty of a passenger when he has tendered a transfer slip and’ the same has been for any reason refused, either to pay fare or quit the car peaceably, without offense or disturbance to other passengers, and then he can seek redress for whatever damage his rejection as a passenger may have caused him. In other words, the preservation of the public peace is of higher consideration in the eye of the law than the right of any citizen to so conduct himself as to cause the disturbance of other passengers upon the same car. And if in this case you find that the conductor afforded plaintiff an opportunity to leave the car quietly, and the plaintiff refused to go quietly and insisted on his right to remain notwithstanding the opportunity afforded him to get off quietly, then the court declares to you that plaintiff can not recover any sum whatever on account of the conductor taking hold of his arm in putting him off the car, nor on account of any supposed pain or suffering which the act of the conductor in taking hold of his arm may have caused him. ’ ’

The testimony failed to disclose any proper cause inducing the conductor of the Cass avenue car to reject the transfer tickets and in reply to repeated questions of plaintiff for the reason of his refusal, he answered that that was his business and that he ran that car, and as the transfers were received by plaintiff in response to request for proper tokens of transfer and in due course from the first conductor, defendant’s representative, the presumption, in absence of any opposite proof, must be indulged that they were regular and proper evidence of transfer entitling plaintiff and his sister to passage upon the second car, and that the conduct of the second conductor in refusing to receive them as substitutes for or in lieu of cash fares was improper and unwarranted. The plaintiff was not confined in his recovery to actual damages; the law is firmly established that where the commission of a tort is attended with circumstances denoting malice, or oppression; or where the defendant acts willfully and with wanton disregard of the rights of Others, exemplary or punitive damages may be allowed, as well for the punishment of the wrong inflicted as to deter repeated perpetration of similar acts. 2 Sutherland, Damages (3 Ed.), sec. 391. The propriety of allowing juries to award such class of damages in cases of unlawful eviction from vehicles of common carriers of passengers has been sanctioned alike by this court and the Supreme Court. Hicks v. Railroad, 68 Mo. 329; Malecek v. Railroad, 57 Mo. 1; Evans v. Railroad, 11 Mo. App. 356; Kellett v. Railroad,, 22 Mo. 356. The cases relied on by defendant are instances where the elements of oppression, insult and abuse in aggravation of the wrong were wholly absent, and the agents enforcing eviction acted erroneously but in good faith and without force or violence.

The court gave the following instruction at plaintiff’s instance:

‘ ‘ The court further instructs the' jury that in assessing the plaintiff’s damages under the first instruction given you, you may take into consideration in fixing the amount of damages, either actual or punitive, the manner and demeanor of the said conductor in ejecting said plaintiff and his sister from said car, if you find that he did so eject them, and the inconvenience and humiliation to which the plaintiff was subjected thereby.”

Under the terms of this instruction the jury were permitted in estimating the award to be accorded plaintiff, both compensatory and punitive, to weigh the conduct and manner of the defendant’s agent, its conductor, in enforcing the unlawful exclusion from the ■ car, employed and directed toward, not only the plaintiff, but also toward his copassenger and companion as well, and both compensate and punish on such joint account; such serious misdirection can not be adjudged other than fatal and reversible error.

4. The fourth instruction for plaintiff was in the following language:

‘ ‘ The court instructs the jury that by the use of the word ‘malice’ in these instructions is meant ill-will or a desire to be revenged, and in passing upon the questions you should take into consideration all the facts and circumstances, as detailed by the witnesses on the witness stand and permitted to go to the jury in the evidence.”

The stricture levelled at this portion of the charge, that there was no evidence of malice, is not tenable. Express or actual malice can but rarely be proven directly, but malice may be and commonly is inferred from the willful doing of a wrongful act and the state of facts disclosed in the present case justified the trial court in submitting such feature to the jury.

Judgment reversed and cause remanded.

All concur.