Randolph ex rel. Adkins v. Hannibal & St. Joseph Railway Co.

Opinion by Philips, P. J.

1. It is first insisted by defendant that the judgment ■should be reversed because there was no proof offered of the appointment of Adkins as next friend for plaintiff. The petition alleges the infancy of plaintiff and the ■appointment of Adkins as such friend. H this fact had *614 been properly pnt in issue by the answer, a failure to make proof of it would have been fatal to the recovery. Porter v. R. R. Co., 60 Mo. 162 ; Sherman v. R. R. Co., 72 Mo. 63 .

The answer, however, only tendered the general issue. This was not sufficient to raise the issue in question. The objection involves merely the capacity of the plaintiff to sue. Such issue at common law could only be presented by plea in abatement under such -circumstances. 1 Chitty Plead. (16 Am. Ed. 464). Under the code, if the incapacity to sue appears on the face of the petition, advantage of it may be taken by demurrer. Sect. 3515, Rev. Stat. In such case, the demurrer must be special, not general. Sect. 3516. If the defect does not appear on the face of the petition, it must be raised specifically by answer, otherwise it is deemed to be waived. Sect. 3519.

The language of the plea in Porter v. R. R., supra, does not appear from the report. But as the answer was framed under the General Statutes of 1865, it must be presumed it was a special denial. In Sherman v. R. R., supra, “the appointment of the guardian is specially denied in the answer.”

But the case of Rogers v. Marsh ( 73 Mo. 64 -70), expressly holds that this issue is not raised by general denial- Nor can it be raised after a verdict in favor, of the defendant. Holton v. Towner, Sup. Ct. Mo., not yet reported.

2. Objection is made to the action of the trial court in admitting proof of the occurrence between plaintiff and the conductor in the car where plaintiff went to call up the friend who saw him come aboard at Harlem. This proof was not outside of the issues tendered by the petition. The allegation of the petition, in this respect, is, that the conductor “in abuse of his authority and trust aforesaid, insultingly accused plaintiff of having entered said train at Kansas City, and charged the plaintiff with attempting to defraud defendant of its fare for conveyance from Kansas City to Harlem, and demanded said fare, and violently abused plaintiff for non-payment thereof, *615 and assaulted, beat, and maltreated plaintiff, all the while acting within the scope of his authority and trust aforesaid.”

This misconduct and maltreatment were not alleged to have occurred in any one particular car, or in any given moment. The conductor had publicly proclaimed the plaintiff before the passengers as an impostor and falsifier, for boarding his train in Kansas City instead of Harlem. He assaulted him by snatching his hat from his head, and when plaintiff talked back to him he violently beat him. His helpless victim all the while assuring him. there was a man in the adjoining coach by whom he could establish his integrity. Smarting with his bruised face and wounded pride, he followed the conductor into said car to try to vindicate himself before these strangers. The whole affair was one continuous act, the whole illustrating and characterizing the evil disposition and indefensible conduct of the defendant’s agent. The plaintiff, as a passenger, was all the while under the care and was entitled to the protection and considerate treatment of the conductor from Harlem to Liberty.

3. Appellant’s chief contention is as to the instructions given by the court.

It may be well enough to premise the discussion of the instructions, by observing that, from the nature of the case, such corporations must act and carry on their business affairs by and through agents. The conductor in charge of this train was, pro hac vice, the corporation. By the terms of the contract between plaintiff and defendant, arising on the purchase of the ticket and taking passage on defendant’s cars, the plaintiff was entitled to careful transportation, and to kind, considerate, and courteous treatment by the carrier. The company, by selecting and placing this conductor in charge of its train, entrusted him with the performance of its contract with plaintiff. As is aptly stated by Chief Justice Ryan in Bass v. Ry. Co. ( 36 Wis. 463 ): “We are disposed to hold that the whole power and authority of the corporation, pro hac vice, is vested in these officers, and that *616 as to passengers on board, they are to be considered as the corporation itself; and that the consequent authority and responsibility are not generally to be straitened or impaired by any arrangement between the corporation and the officers ; the corporation being responsible for the acts of the officers in the conduct and government of the train, to the passengers traveling by it, as the officers would be for themselves, if they were the owners of the road and train. We consider this rule essential to public convenience and safety, and sanctioned by great weight of authority.”

It would, therefore, logically follow, that for the abuse, mistreatment, and injury of and to the passenger by the conductor, the corporation is as much liable as if done by its organized board of directors. Craker v. Ry. Co., 36 Wis. 675 , and the authorities there collected.

There is, however, this distinction to be observed, as recognized at least by our supreme court, and other courts, that the corporation is not liable for exemplary damages on account of the wanton and malicious tort of the agent, without proof that the principal either authorized it or sanctioned it after it was committed. Perkins v. R. R. Co., 55 Mo. 214 ; Craker v. R. R. Co., supra, 676.

Counsel for appellant assail the following instructions :

"If the jury find for the plaintiff, they will award him all damage he sustained by the wrongful act of defendant ; and in estimating the damages, the jury is not limited to the bodily injury and pain produced by the wrongful assault, but may take into consideration the insult and indignity offered plaintiff, and the wounded feelings arising from the character of the maltreatment and from the publicity of the assault, and all facts and circumstances surrounding the wrongful act, and may give to plaintiff full compensation for the injury, insult, and indignity not exceeding the sum of twenty-five hundred dollars.”

This instruction is criticised as if it authorized the jury to award exemplary, or punitive damages. Counsel *617 are in error in assuming that the direction to the jury that, in estimating the damages they might take into consideration “the insult and indignity offered plaintiff, and the wounded feelings arising from the.character of the maltreatment and the publicity of the assault,” is tantamount to exemplary damages.

Such damages, under circumstances like these, are compensatory; and are now quite generally conceded to the injured party.- The general rule is that “pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity.” Trigg v. Ry. Co., 74 Mo. 153.

This question is well considered in Smith v. Ry. Co. ( 23 Ohio St. 10 ). The plaintiff sued for a wrongful expulsion from defendant’s car. The court, inter alia, instructed the jury,-that in estimating the damages they could take into consideration “the injury to the feelings caused by a public expulsion from the cars.” The court-say : “Injuries to the person, whether they consist of mental or -physical pain, as well as loss of time and property which naturally and necessarily result from the wrongful and deliberate act of the defendant, are proper subjects for the consideration of the jury in their estimate of compensatory damages. That physical pain, caused by an act of trespass on the person, constitutes a legitimate ground for compensatory damages, no one disputes. And why should not mental suffering as well 1 Is it more endurable than physical suffering ? Is it a less probable consequence of a trespass against the person of another? Is the mind an object of less concern in the judgment of the law than the body ? Is it any less a part of the person? Is compensation for mental suffering more difficult to estimate than for physical pain ? I can find no good reason for affirming any of these distinctions. Conceding, therefore, that the evidence would not have justified a verdict for damages beyond the rule oí compensation,” the court held the instruction correct.

In McKinley v. R. R. Co. (44 Iowa 314), the court *618 sustained a direction to the jury that they might take into the estimation of damages “the bodily pain and suffering-, and for the outrage and indignity put upon” the party injured. It was held to be compensatory only.

This question, in even a more parallel case is considered fully by that distinguished jurist, Chief Justice Ryan, in Craker v. R. R. Co. (36 Wis., supra) : A lady passenger on a freight,train was rudely kissed several times, against her will, by the conductor. There was no other passenger on the train. In that case, as in this, the company summarily dismissed the conductor, and made ample apology to the offended passenger and offered reparation. On the trial, the court directed the jury: “that the measure of damages would be such compensation as the jury might see fit to award for the injury sustained, including injury to the feelings, the elements of which are, such insult, indignity, contumely, and the like, as she may have suffered;” with the further direction, just as in the case at bar, that they could not “give anything by way of example or punishment.” The court sustained this instruction in the following language: “We need add no authority, that in actions for personal tort, mental suffering, vexation, and anxiety are subjects of compensation in damages. And it is difficult to see how these are to be distinguished from the sense of wrong and insult arising from injustice and intention to vex and degrade. The. appearance of malicious intent may indeed add to the sense of wrong; and, equally, whether such intent be really there or not. But that goes to mental suffering, and mental suffering to compensation. But if there' be a subtle, metaphysical distinction which we can not see, what human creature can penetrate the mysteries of his own sensations, and parcel out separately his own mental suffering and his sense of wrong, so much for compensatory, and so much for vindictive damages ? And if one can not scrutinize the anatomy of his own, how impossible to dissect the mental agonies of another, as a surgeon does corporal muscles. If possible, surely juries are not metaphysicians to do it. And we must *619 hold, that all mental sufferings directly consequent upon tort, irrespective of all such inscrutable distinctions, is ground for compensatory damages in action for the tort.” See, also, Hutchinson on Carriers, sect. 810; Sutherland Dam., vol. 1, p. 734; vol. 3, p. 259-260.

4. And, as if to protect the defendant against any possible misconception of the jury as to the reach of said instruction, the court in the .case at bar gave the following further instructions:

“ Unless the jury find from the evidence that the defendant authorized or directed the assault before it was made, or ratified the same afterwards, the plaintiff can only recover such sum as will amount to the compensation for the actual injuries he sustained.

“In assessing the damages the jury can only find such sum as will compensate the plaintiff for whatever injury, insult, and indignity was inflicted by the conductor of the train upon the plaintiff, and the jury can not find vindictive damages or smart money, the damages must be compensatory.”

There was no inconsistency or contradiction in them. The first was the law, and the others secured defendant against vindictive damages, which a jury, under the influence of such an unprovoked outrage upon a respectaable young man, might be disposed to award.

5. Criticism is, also, made on the instructions given in behalf of plaintiff, because they do not require the jury to find the existence of malice or wantonness as charged in the petition. There is no controversy, or, at least, there is no ground for any, that the whole conduct of this conductor was wanton and brutal. It is without one single mitigating circumstance. I can not conceive why the defendant should complain that the court did not call more directly the attention of the jury to the question of malice and wantonness, so as to stimulate their indignation. We do not think the damages are so excessive as to indicate undue passion or prejudice in the mind of the jury. In the Craker case, supra, the court sustained a verdict for $1,000.

The action of the company in dismissing the offend- *620 tag conductor, and apologizing to the plaintiff and expressing a willingness to make compensation, was most creditable to the defendant. But the only legal effect of this action was to prevent the plaintiff from recovering exemplary or vindictive damages. Smarting, as any young man of proper spirit would, under a sense of this great wrong, that the plaintiff should appeal to the courts for full vindication is not unreasonable.

The publication of such trials, with a just result, is a great protection to the public, and is really for the interest and benefit of the corporations as a check on overzealous ruffians who unavoidably often impose themselves upon the service of the company.

The judgment of the circuit court is affirmed.

All concur.