Opinion
No. 28267.
March 18, 1952. Rehearing Denied April 18, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, DAVID A. MCMULLAN, J.
H. Jackson Daniel, Carroll J. Donohue and Salkey Jones, all of St. Louis, for defendant, appellant, St. Louis Public Service Company.
Blumenfeld Abrams and Selden Blumenfeld, of St. Louis, for plaintiff, respondent.
This is an action by plaintiff, Louise H. Geers, for the recovery of both actual and punitive damages from defendant, St. Louis Public Service Company, on account of her alleged unlawful ejection from one of defendant's Natural Bridge buses which she had boarded for the purpose of becoming a passenger.
Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for actual damages of $500 and punitive damages of $1,000. Judgment was entered in accordance with the verdict; and following the overruling of its motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for out review.
The petition charged that at about 11:45 o'clock on the morning of December 21, 1946, plaintiff boarded the bus in company with her granddaughter; that upon boarding the bus she tendered the operator "lawful money" in payment of the fares of herself and her granddaughter; and that the operator, without just cause or provocation, refused to accept the money tendered by plaintiff, but instead, to her great humiliation and embarrassment, stopped the bus, and in a loud, rude, and insulting manner, all in the presence of other passengers on the bus, compelled her and her granddaughter to leave the bus.
Defendant answered by a general denial except as to the fact of its corporate existence as a common carrier of passengers for hire.
Plaintiff's evidence followed the pattern of the petition very closely.
According to plaintiff's version of the facts, she and her granddaughter, a child ten years of age, boarded the bus at Thirteenth and Mullanphy with the intention of riding to sixth and Delmar where she expected to transfer to a bus which would take her into the principal downtown business district.
As she stepped into the bus she handed the operator a five-dollar bill for the purpose of getting change for the payment of the fares of herself and her granddaughter. The operator became enraged upon her offer of the bill, and with profane and insulting language informed her that unless she had the exact change, it would be necessary that she leave the bus. He exclaimed that he had been repeatedly presented with five-dollar bills that morning; and charging that such a practice was indulged in with the expectation that if he was unable to make change, the passenger would be allowed to ride without the actual payment of fare, he told plaintiff that "you are going to find out you are not riding on this bus free for nothing". Instead he stated that he intended to make an example of plaintiff "right now", and when the bus reached Twelfth and Franklin, a block or so from the point where she had gotten on board, he stopped the bus, threw open the door, and ordered her to alight. Meanwhile she had searched through her purse in the hope of locating the exact change, but had only found thirteen cents, which the operator refused to accept with a declaration that he wanted "the exact fare or nothing".
After her ejectment from the bus plaintiff went into a nearby business establishment where she obtained change for her bill, and shortly afterwards she boarded another bus for the completion of her journey. As a matter of fact, it appears that the operator had advised her at the time she alighted in front of the particular establishment "to go in there and get your bill changed and take the next bus".
For its first point defendant argues that the court erred in overruling its motion for a directed verdict, its theory being that plaintiff's tender of a five-dollar bill was not a lawful tender of fare, with the consequence that the operator was justified in refusing to permit her to remain as a passenger on the bus. In other words, its contention is that the tender of the five-dollar bill was so unreasonable as a matter of law as not to have amounted to the tender of fare; and that having failed to put herself in a position where she was entitled to transportation on the bus, plaintiff could have no cause of action upon the claim of wrongful ejection.
On the facts of the case such a question is one that might be expected to suggest itself for whatever it is worth, and yet it does not appear to have been taken into account on behalf of defendant in the court below. On the contrary, the actual defense in the trial of the case was that the incident had not occurred, and that even if it did occur, plaintiff showed no facts entitling her to the allowance of either actual or punitive damages. Nevertheless the point seems embraced in plaintiff's allegation that she tendered "lawful money" in payment of her fare which the operator refused to accept without just cause or excuse; and inasmuch as all the circumstances were revealed by plaintiff's own evidence, and inasmuch as her right to continue as a passenger did unquestionably depend upon her proper tender of the fare, we shall consider the proposition now urged by defendant as it directly affects the question of whether plaintiff made out a case upon which the relief she seeks could be granted.
While the authorities upon the matter are few in number, they are all in accord that one who takes passage upon a motorbus or street car used in urban transportation is not restricted to the tender of the exact fare; and that so long as the amount he tenders is not unreasonable when considered in its approximation to the established fare, the one in charge of the motorbus or street car must accept it and be prepared to furnish change. What will constitute a reasonable sum which the carrier must accept, and for which it must furnish change, may depend upon many factors; and if the facts are undisputed and not susceptible of different inferences, the proper conclusion will be one for the court, but otherwise for the jury in the light of the circumstances of the particular case. 13 C.J.S., Carriers, § 593; 10 Am.Jur., Carriers, sec. 1176.
So far as we are aware, there are only four reported cases that may be said to be comparable to the case at bar.
In Barrett v. Market-St. C. Ry. Co., 81 Cal. 296, 22 P. 859, 6 L.R.A. 336, the plaintiff had tendered a five-dollar god piece in payment of a five-cent fare. The court observed that a five-dollar gold piece was practically the lowest gold coin in use in that section of the country, and decided that the tender of such an amount was not unreasonable under the circumstances, although it was careful to point out that a passenger might not be permitted to tender any sum however large. This decision was rendered in 1889.
In 1896 the Court of Appeals of New York had the question before it in the case of Barker v. Central Park, N. E. R. R. Co., 151 N.Y. 237, 45 N.E. 550, 35 L.R.A. 489. There was this additional circumstance — that the defendant had a rule requiring its conductors to be prepared to furnish change to the amount of two dollars. The plaintiff, who was unaware of the rule, tendered a five-dollar bill in payment of his five-cent fare. The court upheld the reasonableness of the rule, and at the same time held, contrary to the Supreme Court of California, that on the evidence as it stood the plaintiff's tender of the five-dollar bill had been unreasonable as a matter of law.
In 1898 the question came before the Superior Court of Pennsylvania, which held, following the Court of Appeals of New York, that the tender of a five-dollar bill in payment of a five-cent fare was unreasonable as a matter of law. Muldowney v. Pittsburg Birmingham Traction Co., 8 Pa.Super. 335.
The last of the four cases is one decided by the Supreme Court of Tennessee in 1907, Knoxville Traction Co. v. Wilkerson, 117 Tenn. 482, 99 S.W. 992, 9 L.R.A., N.S., 579. There the carrier had a rule requiring its conductors to be prepared at all times to make change of bills or coins up to the amount of five dollars. The passenger, who was ignorant of the rule, tendered a ten-dollar bill in payment of his five-cent fare. The court held that the rule in question was both a reasonable and a liberal one which the carrier had the right to enforce, and that the conductor had had the right not only to refuse to change the ten-dollar bill, but also to require the passenger to leave the car upon his failure to otherwise pay his fare.
It is thus to be seen that while the few courts to pass upon the question have all agreed that a passenger's tender of a bill or coin of an unreasonably large denomination will not constitute a lawful tender of the fare, there has been no unanimity as to what would or would not be considered unreasonable as a matter of law. In two of the cases the tender of a five-dollar bill was held unreasonable as a matter of law; in another the tender of a five-dollar gold piece was held not to have been unreasonable; and in the fourth case the company itself, as far back as 1907, had required its employees to be at all times prepared to make change of bills or coins not exceeding the denomination of five dollars.
But even if we grant that there may have been a logical basis for the New York and Pennsylvania decisions at the time they were rendered, they nevertheless lose most of their persuasiveness when they are read in the light of modern economic conditions under which a five-dollar bill has become a common medium of exchange with a vastly reduced buying power over that which it possessed in the nineties when the two courts held as they did. No longer is it to be regarded as a bill of large denomination, nor was it so in 1946 when the incident in question is alleged to have occurred.
While the record does not reveal the amount of the fare that plaintiff would have been required to pay, it was no doubt proportionately far higher than the five-cent fare which was a material factor in the several reported cases. There is no suggestion that defendant had seen fit to fix a maximum amount beyond which its operators would not be under compunction to make change; and in fact the evidence discloses that the particular operator had been accepting five-dollar bills from other passengers before the controversy with plaintiff arose. Indeed it was the frequency with which he had been confronted with bills of that denomination during the preceding portion of his run that apparently caused him to give vent to his exasperation when plaintiff herself made a tender of a bill of like amount. However there is no basis for assuming that she did so in the expectation that the operator would be unable to make the change with the result that she would be permitted to ride free, or for any other reason than the fact that she actually lacked the money to pay her fare unless the bill was changed. Certainly we could not hold under the facts and circumstances of the case that plaintiff's tender of the five-dollar bill was unreasonable as a matter of law; and it therefore follows, so far as concerns the legal question of the tender of fare, that defendant's request for a directed verdict was properly refused.
For its next point defendant complains of the giving of instruction No. 1, which was plaintiff's verdict-directing instruction.
The principal criticism is that the instruction omitted any requirement for a finding by the jury that plaintiff's tender of fare was in a reasonable amount. Absent this, defendant would have us hold that there was no legally sufficient hypothesis of whether plaintiff had tendered her fare; and that without a hypothesis for such a finding, there could be no case for unlawful ejection upon the ground of nonpayment of fare.
What the instruction specifically required was a finding that plaintiff had "tendered * * * lawful money * * * in payment of the fare". Under some circumstances an omission of any reference to the reasonableness of the tender might render an instruction vulnerable to the attack which defendant now makes upon the one before us. But not so in the present instance for very obvious reasons. It is true that the question has been raised in this court of whether the tender of a five-dollar bill was so unreasonable as a matter of law as not to have constituted tender of the fare. We have of course reached the conclusion that the tender was not to be held unreasonable as a matter of law; and if the proposition was in anywise called to the lower court's attention, its conclusion must necessarily have been the same in view of the fact that it allowed the case to go to the jury. But as we have already pointed out, the case was not tried upon the theory that there was any issue of reasonable tender for the jury to determine. Plaintiff's instruction No. 1 told the jury that if plaintiff tendered her fare and defendant's operator refused to accept it, the verdict should be in plaintiff's favor. Defendant's instruction No. 2 told the jury that if the operator did not refuse to accept the money tendered by plaintiff in payment of her fare, the verdict should be in defendant's favor. This indicates the truth of what we have said — that the question submitted for the jury's finding was whether the incident occurred, and not whether the tender of the five-dollar bill was reasonable. The instruction is consequently not to be held objectionable for disregarding a matter which neither party considered an issue in the case.
Other criticisms are that the instruction assumed controverted facts; commented upon the evidence; and used such words as "damages", "humiliation", and "indignity" without definition. The instruction assumed nothing, but instead was drawn in such a way as to predicate all hypothesized facts upon a definite qualification that the jury should so find. Moreover in referring to matters which had been brought out in evidence, the instruction, while enumerating the ultimate facts which the jury would be required to find in order to return a verdict for plaintiff, gave no direction as to the weight to be attributed to any portion of the evidence. The particular words complained of were words of commonly understood meaning and needed no definition to warrant their use in the instruction. However if defendant thought otherwise, it would have been at liberty to ask a clarifying instruction along whatever lines it desired.
The next attack is upon instruction No. 4, which was the instruction upon the measure of damages. The instruction follows:
"The Court instructs the jury that if you find in favor of the plaintiff you will assess her damages at such sum as you may believe from the evidence will fairly compensate her for whatever damages she sustained, if any, and for the humiliation, embarrassment, mortification and shame, if any, which plaintiff suffered as a result of the acts and conduct of defendant's chauffeur and agent as defined in other instructions given you, and you may take into consideration in arriving at plaintiff's damages, if any, the pain of mind or body, if any, suffered by her as a result of the incident in question; and you are further instructed that if you believe form the evidence that the defendant's chauffeur and agent did in the presence of other passengers on said bus use loud, offensive, and insulting language toward plaintiff at the time he refused her fare and ordered her from the bus, if you so find, and that his language and manner toward plaintiff were wanton and wilfull and without just cause or provocation on the part of plaintiff, if you so find, then you may add such amount as you may believe the circumstances justify in the way of punitive or exemplary damages, provided you believe plaintiff was wilfully and wantonly humiliated, embarrassed, mortified and insulted and wilfully and wantonly ordered from said bus. `Wilfully' as used in these instructions, means intentional and not accidental or mistakenly. `Wanton' means a reckless disregard of the rights of another."
Defendant's complaints about this instruction cover twenty-two pages in its printed brief, but are obviously not to be disposed of any corresponding length.
In her petition, after alleging that the operator, to her great humiliation, embarrassment, and mortification, had stopped the bus, and, in a loud and rude voice and insulting and threatening manner, all in the presence of other passengers on the bus, had wantonly and wilfully ejected her, plaintiff then charged that as the direct and proximate result of such conduct on the part of the operator, her "hat was lost and destroyed, and her eyeglasses broken, causing plaintiff to suffer from shock, nervousness, and insomnia, to the damage of plaintiff".
Defendant proceeds on the assumption that in light of the petition, the direction that plaintiff, in the event she prevailed, should be compensated for "whatever damages she sustained", must be taken as a reference to the loss of her hat and glasses and to shock, nervousness, and insomnia resulting, not from her ejection, but from the loss of her hat and glasses. Not only was there no evidence of the value of the hat and glasses, but apart from everything else, their loss was referable to circumstances for which defendant was not responsible in the legal sense of causal connection. Consequently defendant argues that the instruction was erroneous for submitting an element of damage for which it was not liable, and for which, in any event, there was no measurable standard of value in the evidence.
Of course the instruction itself made no specific reference to the loss of plaintiff's hat and glasses, nor does it appear that the loss of such articles was brought into the case for any other purpose than to show the discomfort and humiliation to which plaintiff was subjected in the whole course of events connected with her wrongful ejection. The language of the petition was unfortunate, but even though its literal text might be thought to afford a basis for defendant's insistence that plaintiff's shock, nervousness, and insomnia were accountable to the loss of her hat and glasses, a fair reading of the whole petition, as well as a proper regard for the essence of her cause of action, leave no doubt of her actual intention to attribute these things to the operator's conduct in refusing her fare and ejecting her from the bus. The things emphasized in the instruction as the things for which she was to be compensated were her humiliation, embarrassment, and shame resulting form the acts and conduct of the operator, and the pain of body and mind which she sustained as the result of the incident in question. As the trial was conducted we are certain that neither the attorneys who tried the case, nor the jury who heard the evidence and rendered the decision, were under the least misapprehension about the matters for which compensation was to be allowed; and as we see the case we would have no justification for holding the instruction prejudicially erroneous upon the ground of objection now advanced.
For its next point defendant attacks the submission of the element of humiliation, embarrassment, and shame upon the ground that no such matters were pleaded, at least as the basis for actual damages. Suffice it to say that these matters were sufficiently pleaded, as the opinion has already pointed out. That plaintiff suffered humiliation, embarrassment, and shame was distinctly alleged in the statement of the very essence of her cause of action; and the petition then went on to charge that as a result of the acts and conduct of the operator which had brought about her humiliation, embarrassment, and shame, she had suffered damage for which she asked to be compensated.
The next objection is directed at the portion of the instruction authorizing an award of punitive damages. Defendant states in its brief that it is largely basing this point upon the theory that plaintiff's ejection form the bus was proper. Once again it should be noted that the defense upon which defendant relied in the trial of the case was not that the ejection was proper for nonpayment of fare, but that the incident had never occurred. We have already ruled against defendant upon the issue of nonpayment of fare as a matter of law. To whatever extent such issue might have been in the case, it could only have existed as one of fact; and if the jury found, as they obviously did, that plaintiff's ejection was without just cause or excuse, there was then an ample basis in the evidence for the return of a verdict awarding punitive damages.
Complaint is also made of the fact that the instruction authorized the allowance of damages upon a mere finding of abusive language not incidental to any actual physical injury inflicted upon plaintiff. It is definitely settled by the decisions that where the wrongful act complained of is accompanied by abusive, insulting, and humiliating language, damages may be recovered in compensation for injured feelings and humiliation even though no physical injury was sustained. Morris v. St. Louis S. F. R. Co., 184 Mo.App. 65, 168 S.W. 325; Hartridge v. United Rys. Co. of St. Louis, Mo.App., 196 S.W. 59; Davis v. Lusk, Mo.App., 190 S.W. 362.
Lastly the point is made, in addition to the matters already discussed, that the instruction made assumptions unwarranted by the evidence; commented on the evidence; invaded the province of the jury; and was argumentative. The instruction was not prejudicially erroneous in any of such respects. There was no assumption that the operator had done the things defined in the other instructions. All the instructions were to be read together as a single charge, and the instructions referred to as having defined the acts and conduct of the operator had all predicated the fact of such acts and conduct upon a finding by the jury.
It is further contended that the court erred in permitting plaintiff to testify over defendant's objection that the operator had spoken loudly enough to have been heard all over the bus. The precise claim is that competent evidence of such fact could only have been given, not by plaintiff herself, but by other persons on the bus; and that without such evidence from other persons it was impossible for plaintiff to establish a basis for a finding of humiliation.
This point is likewise unavailing. From her position in the bus plaintiff was unquestionably aware of the tone in which the operator addressed her; and the fact as to how loudly he spoke was therefore one within her own personal knowledge as to which she was competent to testify.
The next matter urged is that the court erred in permitting plaintiff to testify over defendant's objection that her granddaughter, who was accompanying her, became hysterical during the course of the incident in question. Defendant insists that whatever the child's reactions may have been was unrelated to any issue in the case, and that to show that the child became hysterical could have served no other purpose than to inflame the jury against defendant. We cannot agree with this contention. Evidence respecting the conduct of the child was admissible as a part of the res gestae, or, in other words, to show the circumstances attending the operator's actions as they may have been calculated to affect plaintiff.
Complaint is made at great length concerning the argument of plaintiff's counsel to the jury. Though the argument is now condemned in the strongest terms, it is to be observed that defendant's trial counsel must have had no such conception of it in view of the fact that he made no objection whatever to any of the matters now urged as prejudicial, nor did he attempt to raise any such point as a ground for a new trial. If it appeared that manifest injustice or a miscarriage of justice had resulted from the argument in question, we would of course be entitled to consider it even in the absence of steps to preserve it for review. However such is clearly not the case. The argument of both counsel was addressed primarily to the one question which they regarded as decisive, that is, as to whether the incident had actually occurred. If some of the language employed was extravagant, it was not more so than counsel frequently employ in attempting to urge the merits of their respective claims. Plaintiff's counsel is well within his rights in insisting that for the lack of objection in the court below, there is nothing here for our determination.
By its final point defendant challenges the amount of the verdict. Considering the evidence in the light most favorable to plaintiff, and attaching due significance to the fact that the trial court has approved the verdict, we see nothing in an award of $500 actual damages and $1,000 punitive damages which would warrant appellate interference.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON and RUDDY, JJ., concur.