{ "id": 1519126, "name": "St. Louis Southwestern Railway Company v. Myzell", "name_abbreviation": "St. Louis Southwestern Railway Co. v. Myzell", "decision_date": "1908-07-06", "docket_number": "", "first_page": "123", "last_page": "128", "citations": [ { "type": "official", "cite": "87 Ark. 123" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "5 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "56 Ark. 52", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": -1 }, { "cite": "34 Pa. St. 48", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 417985 ], "opinion_index": -1, "case_paths": [ "/pa/34/0048-01" ] }, { "cite": "47 Mo. 92", "category": "reporters:state", "reporter": "Mo.", "opinion_index": -1 }, { "cite": "84 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524530 ], "opinion_index": -1, "case_paths": [ "/ark/84/0241-01" ] }, { "cite": "10 C. C. A. 463", "category": "reporters:federal", "reporter": "C.C.A.", "opinion_index": -1 }, { "cite": "82 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529013 ], "opinion_index": -1, "case_paths": [ "/ark/82/0289-01" ] }, { "cite": "67 Ark. 55", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "83 Ark. 6", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527203 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/83/0006-01" ] }, { "cite": "66 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909799 ], "opinion_index": -1, "case_paths": [ "/ark/66/0046-01" ] }, { "cite": "83 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527211 ], "opinion_index": -1, "case_paths": [ "/ark/83/0061-01" ] }, { "cite": "74 Ark. 355", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721110 ], "opinion_index": -1, "case_paths": [ "/ark/74/0355-01" ] }, { "cite": "70 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509449 ], "opinion_index": -1, "case_paths": [ "/ark/70/0563-01" ] }, { "cite": "66 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909771 ], "opinion_index": -1, "case_paths": [ "/ark/66/0264-01" ] }, { "cite": "78 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "82 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "29 la. 268", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2281614 ], "opinion_index": -1, "case_paths": [ "/iowa/29/0268-01" ] }, { "cite": "115 Cal. 567", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 4376696 ], "opinion_index": -1, "case_paths": [ "/cal/115/0567-01" ] }, { "cite": "65 la. 543", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4377058 ], "opinion_index": -1, "case_paths": [ "/iowa/65/0543-01" ] }, { "cite": "147 U. S. 101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3566088 ], "opinion_index": -1, "case_paths": [ "/us/147/0101-01" ] }, { "cite": "13 How. 371", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "76 la. 513", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2063618 ], "opinion_index": -1, "case_paths": [ "/iowa/76/0513-01" ] }, { "cite": "81 Am. Dec. 93", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "20 Cal. 56", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2281299 ], "opinion_index": -1, "case_paths": [ "/cal/20/0056-01" ] }, { "cite": "1 S. W. 129", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "18 So. 737", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "183 Mo. 119", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8733429 ], "opinion_index": -1, "case_paths": [ "/mo/183/0119-01" ] }, { "cite": "116 Ala. 642", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5559816 ], "opinion_index": -1, "case_paths": [ "/ala/116/0642-01" ] }, { "cite": "91 U. S. 489", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5648323 ], "opinion_index": -1, "case_paths": [ "/us/91/0489-01" ] }, { "cite": "41 Ark. 295", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896189 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/41/0295-01" ] }, { "cite": "53 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911622 ], "opinion_index": -1, "case_paths": [ "/ark/53/0007-01" ] }, { "cite": "70 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509490 ], "opinion_index": -1, "case_paths": [ "/ark/70/0136-01" ] }, { "cite": "58 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329196 ], "opinion_index": -1, "case_paths": [ "/ark/58/0136-01" ] }, { "cite": "56 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326181 ], "opinion_index": -1, "case_paths": [ "/ark/56/0037-01" ] }, { "cite": "82 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529063 ], "opinion_index": 0, "case_paths": [ "/ark/82/0061-01" ] }, { "cite": "78 Ark. 374", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497320 ], "opinion_index": 0, "case_paths": [ "/ark/78/0374-01" ] }, { "cite": "84 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524530 ], "opinion_index": 0, "case_paths": [ "/ark/84/0241-01" ] }, { "cite": "53 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911622 ], "opinion_index": 0, "case_paths": [ "/ark/53/0007-01" ] }, { "cite": "58 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329196 ], "opinion_index": 0, "case_paths": [ "/ark/58/0136-01" ] } ], "analysis": { "cardinality": 641, "char_count": 12155, "ocr_confidence": 0.678, "pagerank": { "raw": 2.3185153085524238e-07, "percentile": 0.7897242271653676 }, "sha256": "028e0bf30dfead5b65b30996b59082863bb6f9fe2e797bf79d1e15721f09d4f6", "simhash": "1:b99cafc406d69430", "word_count": 2131 }, "last_updated": "2023-07-14T20:24:32.952897+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis Southwestern Railway Company v. Myzell." ], "opinions": [ { "text": "Hire, C. J.\nMyzell was in Pine Bluff, having his hand treated for cancer thereon, and took a train on appellants railroad from that city-to his home at England. He paid the train auditor a cash fare, as he thought, to England, the auditor thought to Sherrill, an intermediate station; and after passing Sherrill an altercation arose between him and the auditor as to whether he had paid to England or only to Sherrill. The count of the money showed the auditor was right in this controvers}'\u2019. The occurrence after he had paid a second time was thus described by Myzell: . \u201cI said, T want to drop a thought with you; if you have pulled me for two fares somebody will think of this some other time;\u2019 and he said, \u2018Sit down,\u2019 and I said, \u2018All right,\u2019 and he put his hands on me, and I sat down; but I said, \u2018I want to jog your memory about this,\u2019 and he jammed me down arid set me down wrong.\u201d \u25a0\nThe auditor evidently used considerable force in \u201csetting him down,\u201d and as a result of this violent seating of him he was somewhat injured and caused to suffer pain in his afflicted hand and otherwise bruised, from all of which he suffered considerable pain for some time. The auditor also talked roughly to him. Myzell describes himself as being \u201cgentlemanly funny\u201d from the effect of drink which he had imbibed in Pine Bluff, and, as some of the witnesses said, which he continued to imbibe on the -train. Some of the witnesses say that he was boisterous, while others say that he was not. It is undisputed that he gave evidence of being in an intoxicated condition.\nWhen Mr. Myzell got off the train at England, the auditor grabbed him by the arm and told the town marshal there that he wanted him to take charge of him as being drunk and disorderly on the train. The marshal asked him if he had a warrant, and he said no, and that ended the matter. Myzell brought an action for compensatory \u25a0 and punitive damages, and recovered $500 for compensatory and $800 punitive, and the railroad company has appealed.\nThe first error that the appellant urges is the refusal of the court to permit witnesses to answer as to what Myzell\u2019s conduct was when he was drinking. In the first place, there was no offer made to show what the witnesses would have answered had the court permitted them to have done so; and, in the second place, if it was shown that the witnesses would have testified that his conduct was boisterous or dangerous on other occasions, it would not have been pertinent here, as it was not shown that the auditor knew that he was in the habit of conducting himself in such a manner. The offered testimony was wholly foreign to the issue.\nThe next objection is to instruction No. 3, which is as follows : \u201cIf you find for the plaintiff, you will assess his damages in any sum not exceeding five hundred dollars as you may believe from the evidence will compensate him for. the physical pain and mental anguish and humiliation you may be-may believe from the evidence will compensate him for the plaintiff, and further find that the auditor on the train acted wilfully and maliciously when he inflicted the injuries (if any were inflicted), you have a right to give the plaintiff exemplary damages, in addition to compensatory damages, in any sum which you believe proper, not exceeding fourteen hundred dollars.\u201d\nThe objection is that it tells the jury that they may award damages in any sum not exceeding the respective amounts sued for. In so far as the instruction relates to compensatory damages, it is not objectionable, as it plainly tells-the jury that their assessment must be for such amount, not exceeding $500, as they believe from the evidence will compensate him for his physical pain and mental anguish and humiliation which they may believe from the evidence he has suffered. This form of instruction has been before the court several times. Fordyce v. Nix, 58 Ark. 136; St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 374; St. Louis, I. M. & S. Ry. Co. v. Snell, 82 Ark. 61.\nBut the instruction as to exemplary damages is erroneous. It tells the jury that they have the right to give the plaintiff exemplary damages, in addition to compensatory damages, in any sum which they believe proper, not exceeding $1400. This is putting the assessment of exemplary damages at large, restrained only by what the jury may -believe proper, when their assessment \u201cmust be commensurate with the wrong done as shown by the evidence adduced.\u201d\nThe next error alleged is that there was no evidence to sustain the verdict for punitive damages. The court fails to find \u201cthat element of wilfulness or conscious indifference, to consequences from which malice may be inferred,\u201d which is a necessary basis to sustain an action for punitive damages. Railway v. Hall, 53 Ark. 7; St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241. Giving to appellee\u2019s testimony its strongest probative force, the utmost that can be found is that the train auditor unnecessarily used some force with Mr. Myzell, both at the time he seated him and at the'time he grabbed his arm and tendered him to the town marshal. But unquestionably Mr. Myzell gave the auditor cause for irritation, and his conduct through the influence of drink was such as would in a measure excuse the auditor\u2019s conduct, viewing Myzell\u2019s conduct solely in the light of his own testimony. The auditor\u2019s conduct was a natural, although improper, result of Myzell\u2019s insulting and inebriate behavior, but fell short of containing those elements of wantonness or wilfulness from which malice is inferred, which constitutes the basis of an action for exemplary damages.\nIt is urged that the verdict for each kind of damage is excessive. So far as the verdict for compensatory' damages is concerned, the court is satisfied that it does not exceed a proper limit. Mr. Myzell was evidently hurt. He was in a condition where an injury to his afflicted hand would become very painful, and might become serious. The auditor publicly humiliated him, which he would naturally feel; an element to be considered as well as the actual pain inflicted.\nThe judgment for compensatory damages is affirmed, the judgment for exemplary damages is reversed, and the cause as to that dismissed.", "type": "majority", "author": "Hire, C. J." } ], "attorneys": [ "N H. West and Bridges, Wooldridge & Gantt, for appellant.", "las. B. Gray and Trimble, Robinson & Trimble, for appellee." ], "corrections": "", "head_matter": "St. Louis Southwestern Railway Company v. Myzell.\nOpinion delivered July 6, 1908.\n1. Evidence \u2014 materiality\u2014Where appellant insists that the court erred in refusing to permit witnesses to answer a certain question in order to show that the error was material, he should offer to show what the witnesses would have answered had the court permitted them to do so. (Page 126.)\n2. Same \u2014 competency.\u2014In an action against a carrier by a passenger for an assault committed by a train auditor where there was evidence that -the plaintiff was drunk, it was not error to reject evidence offered by ' defendant that plaintiff\u2019s conduct was boisterous or dangerous on other occasions when he was drunk, where it does not appear that the auditor knew of such previous conduct. (Page 126.)\n3. Damages \u2014 instruction\u2014reference to amount sued for. \u2014 While improper, it was not reversible error to instruct the jury that if they found for plaintiff they should assess his damages in any sum not exceeding the sum sued for. (Page 126.)\n4. Same \u2014 measure of punitive damages. \u2014 It' was prejudicial error to instruct the jury that they have the right to give the plaintiff exemplary damages in any sum which they believe proper, instead of telling them that the assessment of punitive damages must be commensurate with the wrong done as shown by the evidence adduced. (Page 127.)\n5. Punitive damages \u2014 when disallowed. \u2014 Where an assault committed by a train. auditor upon a drunken and insulting passenger was natural result of the latter\u2019s' misbehavior, an award of punitive damages will be disallowed. (Page 127.)\n6. Damages \u2014 excessiveness.\u2014An award of $500 as compensatory damages for an assault committed by a train auditor upon a passenger was not excessive where there were painful injuries inflicted, and where there was also the element of public humiliation. (Page 128.)\nAppeal from Lonoke Circuit Court; Mugene Lankford, Judge;\naffirmed as to compensatory damages, reversed as to exemplary damages.\nN H. West and Bridges, Wooldridge & Gantt, for appellant.\n1. In view of the conflict in the evidence as to appellee\u2019s conduct at the time, whether or not he was boisterous and profane, it was competent, and material to appellant\u2019s defense, to prove his conduct generally when in a drunken condition; and it was error to exclude such testimony. 56 Ark. 37.\n2. The third instruction is erroneous in stating an amount which the jury may find. 58 Ark. 136. Also because the evidence does not support a finding for exemplary damages. A corporation cannot be held for such damages resulting from an act of an employee, unless it appears from the evidence, not only that the act was wrongful, but also that the employee was acting in the line of his employment and that the act was willful and malicious. 70 Ark. 136; 53 Ark. 7. There is no case made out for punitive damages, even against the auditor; certainly none against the company. There is lacking that element of wilfulness or conscious indifference to consequences from which malice may be inferred, that is necessary to sustain such a recovery. 41 Ark. 295; 1 Baldwin 59; 1 Joyce on Dam. 119; Id. \u00a7 121; 91 U. S. 489; 52 Am. & Eng. R. Cas. 409; 116 Ala. 642; 9 Am. & Eng. R. Cas. 724; 183 Mo. 119; no Ala. 329; 18 So. 737; 1 S. W. 129; 20 Cal. 56, 81 Am. Dec. 93; 71 \u25a0la. 255; 76 la. 513; 13 How. 371; 21 J-Iow; 202; 12 Am. & Eng. Enc. of L. 21; 13 Cyc. 112; 147 U. S. 101; 65 la. 543.\nlas. B. Gray and Trimble, Robinson & Trimble, for appellee.\n1. The testimony sought to be introduced as to plaintiff\u2019s conduct on other occasions when drinking was properly excluded. It was not admissible to prove intoxication at the time complained of, nor can conduct on other occasions when drunk be proved to establish his conduct at the time when he was assaulted. 17 Am. & Eng. Enc. of L. 408; 115 Cal. 567; 29 la. 268.\n2. The court\u2019s third instruction specifically limits the recovery to such damages as the evidence establishes. While a reference in an instruction to the amount sued for is not regarded with' favor, it is not reversable error. 82 Ark. 62; 78 Ark. 380. The instruction was not prejudicial, because the verdict was for a smaller sum than was sued for, and because the jury were expressly limited to such sum as they believed proper under the evidence, not exceeding the amount sued for. Moreover, appellant\u2019s exception, being general, does not avail here. 66 Ark. 264; 70 Ark. 563; 74 Ark. 355; 83 Ark. 61; 66 Ark. 46.\n3. There was ample evidence to warrant the instruction as to punitive damages. 83 Ark. 6. There is no merit in the contention that the auditor was not acting in the line of his emplo} ment. 67 Ark. 55; 82 Ark. 289; 10 C. C. A. 463. Conscious indifference to consequences will support punitive damages. 84 Ark. 241; Voorheis, Measure Dam. Pers. Inj. \u00a7 T93. Punitive damages are recoverable in an action for assault where the injury was wantonly or vindictively inflicted. 47 Mo. 92; 34 Pa. St. 48. The manner of the assault and the force used warrant the conclusion that the injury was occasioned by a conscious and wanton disregard of appellee\u2019s safety. 56 Ark. 52. If there is testimony tending to show that the assault was wanton or malicious, the court will submit the question of the allowance of punitive damages to the jury. 4 Sutherland on Dam. (3 Ed.), \u00a7 1092; Watson on Dam. Pers. Inj. . (1901* Ed.), \u00a7 740; Voorheis, Measure of Dam. for Pers. Inj. \u00a7 186; Id. \u00a7 308. Provocation does not necessarily defeat a recovery of exemplary damages. The conduct of both parties may be considered. 1 Joyce on Dam. \u00a7 333; Voorheis on Meas. Dam. Pers. Inj. \u00a7 193. If appellee was drunk at the time, that did, not authorize appellant to treat him with personal violence, nor does it defeat a recovery. 29 111. App. 90.\n4. The verdict is not excessive. Watson on Dam. Pers.. Inj. (1901 Ed.) \u00a7 741; Voorheis, Meas. Dam. Pers. Inj. \u00a7 187; ^5 Ark. 494; 83 Ark. 6." }, "file_name": "0123-01", "first_page_order": 145, "last_page_order": 150 }