5. Appeal and error 1170(9)—Error in instruction, evidently disregarded, not reversible.

Where one instruction relating to punitive damages required that the jury find that the relationship of carrier and passenger existed in order to allow punitive damages, error in another instruction relating to compensatory damages, consisting of omission to require the finding of such relation, could not have prejudiced the defendant, where the jury allowed both compensatory and punitive damages, and the judgment could not be reversed, in view of Rev. St. 1909, §§ 1850, 2082.

a review of the rulings of the court below upon the instructions given and refused. Thereafter the Supreme Court, upon certiorari, quashed the judgment of this court in the cause, holding that the decision of the Supreme Court in Wampler v. Railroad, 269 Mo. 464, 190 S. W. 908, a decision in banc prior to that in the Kansas City Disinfecting & Mfg. Co. Case, was controlling upon us, and that the opinion in the last-mentioned case, in Division No. 2 of that court, though citing the Wampler Case as authority for the ruling therein, was not in harmony therewith. See State ex rel. United Rys. Co.

Appeal from St. Louis Circuit Court; v. Reynolds et al., 278 Mo. 554, 213 S. W. Victor H. Falkenhainer, Judge. "Not to be officially published."

Action by George Lampe against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 202 S. W. 438; 278 Mo. 554, 213 S. W. 783.

T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respond

ent.

PER CURIAM. This is an action for personal injuries alleged to have been sustained by plaintiff by reason of the wrong ful act of one of defendant's conductors in striking at plaintiff with a "metal punch" while plaintiff was riding in a position of danger at the rear of a rapidly moving street car operated by defendant, whereby plaintiff was caused to fall to the street, sustaining injuries. The trial below resulted in a verdict in plaintiff's favor for $1,000 actual damages and $750 punitive damages. The trial court required plaintiff to remit $500 of the amount assessed as actual damages, and, upon such remittitur being made, judgment was entered for plaintiff in the total sum of $1,250. From this judgment the defendant prosecutes the appeal now before

us.

This is not the first appearance of the case in this court. On the first appeal a judgment for the defendant was reversed, for reasons which will appear in the opinion, and the cause remanded for a new trial. See Lampe v. United Rys. Co., 177 Mo. App. 652, 160 S. W. 899. A retrial resulted in the judgment first mentioned above, and which is now before us for review. On this last appeal we have previously handed down an opinion (see Lampe v. United Railways Co., 202 S. W. 438), in which, following the ruling of Division No. 2 of the Supreme Court in Kansas City Disinfecting & Mfg. Co., v. Bates County, 273 Mo. 300, 201 S. W. 92, we held that the assignments in the motion for a new trial were insufficient to permit

783. Since the said decision of the Supreme Court in the case, on certiorari, the cause has been reargued and resubmitted for our determination.

The petition, after making certain formal allegations, proceeds as follows:

"That on October 6, 1909, plaintiff was at the south crossing of Broadway and Montgomery streets, two streets in said city of St. Louis, intending to become a passenger upon defendant's south-bound car then approaching said Montgomery street from the north on tracks of defendant's street railway line on said Broadway. That while plaintiff was so at said crossing said car stopped at said crossing for the purpose of receiving passengers, and while being carried as a passenger on said car from it was so stopped plaintiff for the purpose of said Montgomery street to the business part of said city of St. Louis, south of Franklin avenue in said city, stepped on the step of the rear platform of said car and an iron bar of said car located at its rear, and said car shortly thereafter was caused by defendant to proceed southward on said tracks on said and said bar. That plaintiff while on said car Broadway with plaintiff standing on said step stood on said step and bar, and he so stood because the platforms and inside of said car were filled with passengers, and plaintiff at all times while so on said car was ready, able, willing, and intending to pay his fare to defendant for riding on said car, and was waiting fare. That said car was not a car commonly for an opportunity to pay defendant his said known as a 'pay-as-you-enter car,' but was a car on which defendant's conductor in charge thereof usually and habitually proceeded from passenger to passenger to collect their fares. "That at the time plaintiff was injured as hereinafter mentioned, and for a long space and habitually, when the platforms and inside of time next prior thereto, defendant usually of its cars on said Broadway line were filled with passengers, permitted passengers to at all times stand on the steps of the platforms of such crowded cars and on the bars of such cars, similar to the bar plaintiff stood on as aforesaid. That on October 6, 1909, while said car was so proceeding southward with plaintiff thereon as aforesaid, and as a passenger, and was in rapid motion, and before plaintiff had had an opportunity to pay his fare, defendant's conductor then in charge of said car did willfully, wrongfully, unlawfully, maliciously, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

without provocation, cause, or excuse, attempt to strike plaintiff with a metal object, known as conductor's punch, and in so attempting did

from the moving car to the street, by reason of which he suffered a broken arm.

At the close of plaintiff's case, and again

willfully, wrongfully, unlawfully, maliciously, at the close of the entire case, defendant and without provocation, cause, or excuse strike at plaintiff with said object, whereby plaintiff was caused to lose his footing, and to fall and be thrown from said car while it was so in rapid motion to and upon the street in the vicinity of Cass avenue in said city, whereby he was jarred and shocked, and was cut and bruised about his head, limbs, and body, and one of the bones of his left forearm

was broken, and he was caused to sustain severe nervous injuries and shock. That said acts of said conductor were within the scope of his employment and authority under defendant, and were done while he was undertaking to serve defendant as such conductor and while he was in the course of his employment under defendant.

That by his injuries so sustained plaintiff has suffered and will suffer great pain of body and mind, and his left arm is permanently crippled, disabled, and injured, and he has sustained permanent nervous injuries and shock, to his damage in the sum of $2,000. That as said attempt of said conductor to strike plaintiff and his said act in striking at plaintiff were unlawful, malicious, wrongful, willful, and without provocation, cause, or excuse, plaintiff asks damages by way of punishment in the sum of $1,000.

"Wherefore plaintiff asks judgment against defendant for $2,000 actual damages and $1,000 punitive damages, a total of $3,000."

offered a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give. Four instructions were given at the request of the plaintiff, and six at the request of the defendant. One instruction was given by the court of its own motion, and two instructions offered by defendant were refused.

The court's ruling on the demurrer to the evidence is not challenged. The assignments of error before us charge that the court erred in giving plaintiff's instruction No. 2, and in refusing defendant's two refused instructions, marked A and B. Because of the arguments advanced on appeal with respect to the rulings below on the instructions, we here set out in full plaintiff's two main instructions, No. 1 and No. 2, and likewise defendant's refused instructions.

The two said instructions given for plaintiff are as follows:

"The court instructs the jury that, if they find from the evidence in this case that on and before October 6, 1909, the defendant was in possession and control of and operating a street railway and cars on Broadway, in the city of St. Louis, Missouri, for the purpose of carrying passengers for hire in said city as a street railway, and that Montgomery street and said Broadway were at said times streets The answer is a general denial. in said city, and that on said October 6, 1909, The evidence in plaintiff's behalf is to the defendant was in possession and control of and effect that between 7:30 and 8 o'clock on the operating a south-bound car on said Broadway evening of October 6, 1909, while certain for the purpose of carrying passengers for festivities were in progress in the city of St. hire in said city of St. Louis on said railway Louis, plaintiff, who was then 16 years of line, and that on said day the plaintiff was at the south crossing of said Montgomery street age, in company with some boys of about his and said Broadway in said city of St. Louis, own age, undertook to ride upon one of de- intending to become a passenger upon said fendant's south-bound street cars on Broad-south-bound car, and that whilst plaintiff was way, in said city, from the intersection of so at said crossing and intending to become a Montgomery street and Broadway to the passenger on said south-bound car, said southbusiness portion of the city. The cars were bound car was by defendant stopped at all crowded with passengers, and, according said crossing for the purpose of receiving pasto plaintiff's evidence, he and his compan-sengers thereon, and that while said car was ions, after several cars had passed them, got upon a car and stood upon the steps and other portions thereof about the rear platform, which was filled with passengers. The testimony shows that plaintiff stood with one foot on the rear end of the car step at the right of the rear platform and with the other foot upon a heavy iron bar protruding from beneath the rear end of the platform, as alleged in the petition. Plaintiff testified that he had money with which to pay his fare and that it was his intention to do so. According to the testimony of plaintiff and that of his companions, defendant's conductor from the interior of the car upon this rear platform, and without demanding fare of plaintiff, and without any warning whatsoever, struck at plaintiff with his conductor's punch, whereby plaintiff was caused to fall

came

so stopped plaintiff stepped on the step of the rear platform of said car and an iron bar of said car located at its rear, for the purpose of being carried as a passenger on said car from said Montgomery street to the business part of said city south of Franklin avenue, and to pay his fare as such passenger, and that during the time plaintiff was on said car he was standing on said step and bar, and the platform and inside of said car were filled with passengers, and that defendant usually and habitually, when the platforms and inside of its cars on said line on said Broadway were filled with passengers, permitted passengers to stand on the steps of the platforms of said cars, and on the bars of said cars similar to said iron bar, and if the jury further find from the evidence that the plaintiff, while standing on said step and bar of said car, was a passenger and was intending to pay his fare on said car, and was ready and able to do so, and that said car was under the charge and control

(232 S.W.)

that he was a passenger upon the car; that a f therewith, whether by way of inducement, extrespasser upon the car could recover for an planation, or additional particulars, may be assault of the character pleaded, by the con- rejected as surplusage, and a recovery may ductor acting within the scope of his author-be had upon proof of the essential facts reity as a servant of defendant. It is earnest ly contended, however, that upon the record before us no recovery can be had by plaintiff in the absence of proof that he was a passenger and a finding by the jury to that effect; this for the reason that plaintiff alleged that he was a passenger upon the car, and, it is said, tried his case upon that theory below. We find ourselves unable to

accede to this view.

maining. The only exception to this rule is that in those special cases when the law permits a recovery upon the statement of a legal conclusion, as upon the general allegation of negligence in a suit by a passenger against the carrier, if the plaintiff, instead of relying upon this right, undertakes to state the specific facts constituting his cause of action, he will be held to have abandoned his general statement. This exception, it will be seen, is more apparent than real, for the pleading, so constructed and construed, will then be subject to the rule we have stated."

In the case before us the averment of the

inconsistent with the other facts pleaded and relied upon to sustain the cause of action. And if we strike out from this petition all thereof charging the relation of passenger and carrier, what will remain will, we think, state a complete cause of action in plaintiff's favor; for the remaining allegations

are such as to charge an assault of such character and under such circumstances as, if true, to entitle plaintiff to a recovery without regard to the relation of passenger and carrier. It might be otherwise, had plaintiff, after alleging the relation of passenger and

[1] The allegation of the existence of the relation of passenger and carrier was unnecessary to a statement of a cause of action in plaintiff's favor arising from a sud-relation of passenger and carrier is not one den, unprovoked, willful, and malicious assault made upon him by the conductor, without warning, and without affording him an opportunity either to pay his fare or leave the car in safety, such as is alleged in the petition. The cause of action, upon which recovery is sought, namely, the right to recover for the injuries sustained by reason of the alleged assault, is not a cause of ac tion necessarily arising out of the relation of passenger and carrier, but one which may arise entirely independent thereof. And the petition, it will be observed, does not, in terms, count upon a breach by defend-carrier, alleged, without more, a wrongful ant of a duty which, as carrier, it owed attempt to eject him, while a passenger, reto plaintiff as a passenger, and growing sulting in his fall from the car and conseout of the relation of passenger and car- quent injury; for if plaintiff was not a pasrier. O'Brien v. St. Louis Transit Co., senger, but a trespasser upon the car, an 212 Mo. 59, 110 S. W. 705, 15 Ann. Cas. 86. attempt to eject him would not be wrong[2] In other words, though plaintiff alleg-ful, unless unnecessary force to that end ed that he was a passenger upon the car, having alleged an assault, of the character and under the circumstances pleaded and shown in evidence, it was not necessary, we think, for plaintiff to make proof of the averment that the relation of passenger and carrier existed; that averment being unnecessary to the statement of a cause of action, in his behalf. It mattered not in what capacity plaintiff was upon the rear of this street car, since an assault upon him, of the character and under the circumstances pleaded and shown in evidence, gave rise to a cause of action in his behalf against the defendant. Plaintiff was not required to prove every averment of his petition.

[3] The well-established rule touching this matter is stated in the recent case of Wessel v. Lavender, 262 Mo. 421, 171 S. W. 331, as follows:

was used.

But this petition does not merely count upon a wrongful ejection; neither is it in terms alleged that the conductor attempted to eject plaintiff and used unnecessary force in so doing. It is charged, in effect, that the conductor, having come upon this rear platform, suddenly made an unprovoked, willful, and malicious assault upon plaintiff, without warning. Assuming that plaintiff was a trespasser upon the car, defendant's conductor had no right to willfully, wantonly, or intentionally assault and injure him. And for such an assault and injury by the conductor, in the scope of his employment and authority as defendant's servant (as the petition alleges), the defendant may be held liable under the broad rule of respondeat superior. See McDonald v. Railroad, 165 Mo. App. 75, and cases cited, 146 S. W. 83.

In this view it was not error, we think, for the court to give plaintiff's instruction No. 2, since to entitle plaintiff to recover it was not essential that the jury find that he was a passenger, or find the facts necessary to constitute the relation of passenger and carrier.

"The rule is that proof is only required of those allegations necessary to a recovery, and that those unnecessary to that end may be eliminated as surplusage. Mehan v. St. Louis, 217 Mo. 35, 46; Frederick v. Allgaier, 88 Mo. 598, 603, 604; Smith v. Fordyce, 190 Mo. 1. The rule more specifically stated is that, where a good cause of action is well stated in the In Adams v. St. Louis & San Francisco R. pleading, all additional averments consistent | R. Co., 149 Mo. App. 278, 130 S. W. 48, plain