criminal prosecution for the offense does not | field v. Chicago, R. I. & P. R. Co. 59 Mo. App. of itself show that the verdict is excessive. 366; Randolph v. Hannibal & St. J. R. Co. 3. Two hundred and fifty dollars ac18 Mo. App. 609; Ruth v. St. Louis Transit Co. 98 Mo. App. 1, 71 S. W. 1055; Birmingham R. & Electric Co. v. Baird, 130 Ala. 334, 54 L. R. A. 752, 89 Am. St. Rep. 43, 30 So. 456; Draper v. Baker, 61 Wis. 450, 50 Am. Rep. 143, 21 N. W. 527; Missouri P. R. Co. v. Martino, 2 Tex. Civ. App. 634, 18 S. W. 1066, 21 S. W. 781; Goddard v. Grand Trunk R. Co. 57 Me. 202, 2 Am. tual, and $750 exemplary, damages, awarded against a street car company because of the intentional kicking in the vicinity of the heart, by a conductor, of a boy attempting to board a car to become a passenger, are not so excessive as to be set aside on appeal. (June 20, 1904.) APPEAL by defendant from a judgment Rep. 39; Chesapeake R. Co. v. Osborne, 97 of the Circuit Court for the City of St. Louis in favor of plaintiff in an action to recover damages for an alleged assault upon plaintiff by defendant's conductor. firmed. Af The facts are stated in the opinion. The court should have submitted to the jury the question whether the conductor's acts were wanton, wilful, or in reckless disregard of the plaintiff's rights. 2 Shearm. & Redf. Neg. 5th ed. § 748; Haines v. Schultz, 50 N. J. L. 481, 14 Atl. 488; Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 37 L. ed. 97, 13 Sup. Ct. Rep. 261; Kennedy v. North Missouri R. Co. 36 Mo. 364; Dorsey v. Atchison, T. & S. F. R. Co. 83 Mo. App. 543; State use of McClenden v. Jungling, 116 Mo. 165, 22 S. W. 688; Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 16 L. ed. 73; 12 Am. & Eng. Enc. Law, 2d ed. p. 24; 19 Am. & Eng. Enc. Law, 2d ed. p. 624. The malice spoken of in relation to punitive damages must partake of a criminal or wanton nature. 12 Am. & Eng. Enc. Law, 2d ed. p. 24c; Ickenroth v. St. Louis Transit Co. 102 Mo. App. 597, 77 S. W. 166. The verdict of the jury is so excessive, both as to the actual and punitive damages, as to force the judicial mind to the conclusion that it was the result of passion and prejudice against the defendant. Ky. 112, 53 Am. St. Rep. 407, 30 S. W. 21; Louisville & N. R. Co. v. Garrett, 8 Lea, 438, 41 Am. Rep. 640; Illinois C. R. Co. v. Latimer, 28 Ill. App. 552; Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Rep. 504. It is the rule to defer to the action of the jury and the trial court in such matters, even when the verdict is larger than the supreme court thinks proper. Black v. Missouri P. R. Co. 172 Mo. 177, 72 S. W. 559; Malloy v. St. Louis & Suburban R. Co. 173 Mo. 75, 73 S. W. 159; Pauck v. St. Louis Dressed Beef & Provision Co. 166 Mo. 646, 66 S. W. 1070; Parks v. St. Louis & S. R. Co. 178 Mo. 108, 77 S. W. 70. Marshall, J., delivered the opinion of the court: This is an action for $1,000 actual damages and $1,500 punitive damages sustained by the plaintiff, a minor of the age of thirteen years, while a passenger on an Olive street car of the defendant's line, in the city of St. Louis, on February 26, 1902, caused by the assault of the conductor of the car upon the plaintiff by kicking the plaintiff on his left side, over his heart. The answer is a general denial. There was a verdict for the plaintiff for $250 actual damages and $750 punitive damages, and the defendant appealed. The facts are these: The plaintiff, a lad of thirteen years, was a messenger for the Postal Telegraph Company. On the day in Chitty v. St. Louis, I. M. & S. R. Co. 166 question, about half past 3 P. M., he boarded Mo. 435, 65 S. W. 959. defendant's car at Thirteenth and Olive Messrs. Paul V. Janis and William R. streets, intending to go to Jefferson avenue Gentry, for respondent: The definition of malice was correct. Canfield v. Chicago, R. I. & P. R. Co. 59 Mo. App. 354; Goetz v. Ambs, 27 Mo. 28; Buckley v. Knapp, 48 Mo. 152; Lyddon v. Dose, 81 Mo. App. 71; Ickenroth v. St. Louis Transit Co. 102 Mo. App. 597, 77 S. W. 162; Trauerman v. Lippincott, 39 Mo. App. 478. as a passenger on the car, having the money to pay his fare. Several people got on the car ahead of him. When he had gotten onto the step of the car, and as he was about to get onto the rear platform, and while he was waiting for the other passengers to move forward so he could get up onto the platform, and while the car was in motion, the conductor, who had been inside The verdict is not excessive either as to of the car, came out onto the rear platform, actual or punitive damages. passed by the passengers who were standing on the platform, and, without a word, kickman v. Lippincott, 39 Mo. App. 478; Can-ed the boy in the left side, in the region of Lyddon v. Dose, 81 Mo. App. 64; Trauer the heart. The kick caused the boy to let | from every wrongful act, but there must be go his hold on the rail of the car, and his a wrongful motive or intent, or the act right foot touched the ground, but someone must have been conceived in a spirit of miscaught him and lifted him back onto the chief, or of criminal indifference to the car; and ultimately he got into the inside rights of others, or mere wanton, wilful, or of the car, paid his fare, and rode to Jeffer- reckless disregard of plaintiff's rights. It son avenue. The kick produced a bruise, is true that, to entitle the plaintiff to puniand the pain caused the boy to cry. The tive or exemplary damages, the act comconductor admits that his foot touched the plained of must have been maliciously done, boy, but he says that he had been annoyed for the law does not punish civilly a person by boys jumping onto the car, and there was for doing an unintentional wrong. It comanother boy who jumped onto the car and pensates the person wronged, but inflicts no was stealing a ride, and he went out on punishment upon the offender. This being the back platform and kicked at the other true, it is necessary to tell the jury what boy, he jumped off the car and avoided the is meant in law by the term "malicious," kick, and his foot swung around and struck for the legal meaning is much broader than the plaintiff. The case is here because the the meaning the average layman would constitutionality of the nine-juror law was ascribe to the term, and, in a large degree, raised in the trial court, and the verdict it is a different meaning. The average laywas rendered by only ten jurors. Nothing man would believe that "malicious" means further need be said of that question, how ill will, spite, and hostility towards the ever, as the point has been set at rest by other party. This is not the legal meaning. this court. The defendant does not question Those feelings may or may not be present, the right of plaintiff to recover compensa- in the legal meaning of the term. The legal tory damages, but says that the actual dam- meaning of the term is "the intentional doages allowed by the jury are so grossly ex-ing of a wrongful act without just cause or cessive as to show passion, prejudice, or mis- excuse." This has been the rule of law in conduct of the jury, and that the plaintiff this state ever since the decision in Goetz is not entitled to recover any exemplary v. Ambs, 27 Mo., loc. cit. 32, where it was damages, and that, if he was, the instruc-expressly held that instructions were proption given for the plaintiff on the measure erly refused because they were predicated of damages is erroneous. The instruction complained of is as follows: "(4) The court instructs the jury that in assessing the plaintiff's damages, if they find for him, that they are not limited to the physical injury inflicted, or humiliation or disgrace caused plaintiff, if any, by the said act of the said conductor, but, in addition thereto, if they find the assault of plaintiff by said conductor was malicious (and by the term 'malicious' is not meant spite or ill will, but the intentional doing of a wrongful act without just cause or excuse), they may allow such further damages, known in law as 'exemplary,' as will be a punishment to defendant and a wholesome warning to others." upon the theory that the act must have been deliberately done, with ill will and hostility towards the plaintiff, and the rule was laid down that, to warrant a recovery of exemplary damages, the act must have been wilfully or intentionally done; the court saying (loc cit. 33): "The term 'malice' imports, according to its legal signification, nothing more than that the act is wilful or intentional; and, when used to qualify the character of a trespass, it is only employed to distinguish it from that class of injuries which one person may inflict upon another without the intention to do harm, but for which he is responsible, because the act is not unavoidable." The court adopts the definition of the term "wilThe gist of the defendant's contention is fulness," given by the Supreme Court of the that the facts do not warrant the giving of United States in United States v. Taylor, an instruction allowing exemplary dam-2 Sumn. 586, Fed. Cas. No. 16,442, as folages, and, if they did, the instruction given, lows: "Wilfulness, a wrongful act done while good as far as it goes, is erroneous intentionally, without just cause." In in not more clearly defining what is neces- Trauerman v. Lippincott, 39 Mo. App., loc. sary to constitute "the intentional doing of cit. 486, an instruction in all essential rea wrongful act without just cause or ex- spects like the one here under consideracuse," and that the compensatory damages tion was drawn in question; and, speaking allowed are excessive, as also are the ex- of it, the Kansas City court of appeals, per emplary damages. It is not denied that the Ellison, J., said: "The instruction defining instruction given is the "conventional defi malice is in keeping with the case of Goetz nition of malice'" usually given in cases v. Ambs, 27 Mo. 28, and that case is not, of this character which are founded upon as might at first appear, so irreconcilable malice. But it is urged that the right to with the more recent rulings of the supreme recover exemplary damages does not flow court on the question in the cases of Franz mischief is immaterial. The law considers everyone whose neglect, carelessness, and want of due regard for the rights of others occasions injury to them equally culpable, and bound to make reparation to the extent of such injury, as one who wilfully does the mischief." In Gildersleeve v. Overstolz, 90 Mo. App., loc. cit. 532, the St. Louis court of appeals, per Goode, J., said: "This was undoubtedly a case which warranted, and even called for, an award of punitive damages. The appellant's conduct was lawless, highhanded, oppressive, and in utter disregard of respondent's rights." And the same remark applies with even greater appropriateness to the facts in judgment here. v. Hilterbrand, 45 Mo. 121; Engle v. Jones, | Knapp, 48 Mo., loc. cit. 161, an instruction 51 Mo. 316; Graham v. Pacific R. Co. 66 was given substantially like the one under Mo. 536; Seibel v. Siemon, 72 Mo. 526; consideration; and this court, per Wagner, Bruce v. Ulery, 79 Mo. 322; Brown v. Cape J., speaking of the instruction, said: Girardeau Macadamized Pl. Road Co. 89 "Whilst malice in its common acceptation, Mo. 152, 1 S. W. 129; Welsh v. Stewart, means ill will toward some person, in its 31 Mo. App. 376; Prueitt v. Cheltenham legal sense it is defined to be a wrongful Quarry Co. 33 Mo. App. 18. From a con- act done intentionally, without legal justisideration of these cases, it would appear fication or excuse; and, in ordinary actions that in actions in the nature of trespass for slander or libel, malice in law is suffithere must be, in order to justify exemplary cient, and it is to be inferred from the pubdamages, some element of wantonness or bad lication of the slanderous matter without motive. There need not be any personal ill such justification or excuse. In most inwill or spite towards the party injured, stances where an injury is committed for the wantonness or reckless, lawless against the person or property of another, spirit may be displayed in a trespass the actual intention of the author of the against the property of a stranger. Malice may be of a general nature, let the injury fall where it may. State v. Wieners, 66 Mo. 18. The instruction given, following Goetz v. Ambs, 27 Mo. 28, states that malice 'means the intentional doing of a wrongful act without just cause or excuse.' This means that he not only intended to do the act which is ascertained to be wrongful, but that defendant knew it was wrongful when he did it. This is as it has always been understood in cases of homicide. Understood in this way, Goetz v. Ambs is not out of line with the foregoing decisions requiring the act to partake of wantonness or a reckless disregard of the rights of others. For, if one intentionally does a The defendant asked, and the court gave, wrongful act, and knows at the time that an instruction predicated upon the defendit is wrongful, then he does it wantonly, by ant's theory of the case, that the conductwhich word I understand is meant cause- or accidentally kicked the plaintiff while lessly, without restraint, and in reckless dis- trying to eject another boy from the car regard of the rights of others. When one who was stealing a ride. The jury therefore intentionally commits a wrong, he does it had the two theories before them,-one, that from an evil spirit and bad motive. Good it was accidental; and the other, that it motive or spirit does not impel the commis- was intentional. They found the fact to be sion of wilful wrong." Goetz v. Ambs, 27 as the plaintiff claimed. They believed that Mo. 28, has been cited and approved in the the injury was intentionally inflicted. If following cases: Freidenheit v. Edmund- the plaintiff's version is true, the act was son, 36 Mo., loc. cit. 226, 88 Am. Dec. 141; wanton, wilful, intentional, brutal, crimMcKeon v. Citizens' R. Co. 42 Mo., loc. cit. inal, and deserved severe punishment. If 87; Franz v. Hilterbrand, 45 Mo., loc. cit. the conductor honestly believed that the 123; Buckley v. Knapp, 48 Mo., loc. cit. 161; plaintiff was trying to steal a ride, and inState use of McClenden v. Jungling, 116 tended to kick him off of a moving car, the Mo., loc. cit. 165, 22 S. W. 688. The term act was wanton, wilful, in utter disregard "intentionally done" covers all that has ever of the rights of the plaintiff, inhuman, and been or could ever be claimed as necessary without legal justification or excuse. The to indicate to the jury that the defendant law permits a common carrier to eject tresknew that it was wrong, knew that he had passers from its trains, but common huno just cause or excuse for so doing, and manity revolts at the idea of kicking even hence did it wilfully and wantonly and in a trespasser from a moving train. And for reckless disregard of the rights of the other a grown man to undertake to kick a boy of party. Webster's International Dictionary thirteen years off of a moving car, even defines "intentionally" to mean "in an in- though he be a trespasser, is not only unlawtentional manner; with intention; by de- ful, but it is inhuman, cowardly, and consign; of purpose;" and it defines "intention- temptible. It is, of course, hard that a masal" to mean "done by intention or design; ter should have to pay for such wrongs of intended; designed; as the act was inten- such brutes, but it would be harder still for tional, not accidental." In Buckley v. the public to have to suffer such wrongs In Draper v. Baker, 61 Wis. 450, The verdict and judgment are clearly for the right party. The assault was unprovoked and most reprehensible. The damages are not so great as to manifest misconduct or partiality of the jury, nor to offend against a judicial sense of justice and right. The judgment, therefore, is affirmed. All concur. without having adequate redress. The mas- | firmed. ter makes it possible for such things to hap- 50 Am. Rep. 143, 21 N. W. 527, a verdict pen by putting such servants in a position of $1,200 was allowed to stand. In Missouri where they can do such wrongs. The law P. R. Co. v. Martino, 2 Tex. Civ. App. 634, protects the master in all his rights, but it 18 S. W. 1066, 21 S. W. 781, a verdict for likewise affords redress for wrongs of the $2,000 was upheld. In Goddard v. Grand master done by his servants to the public. Trunk R. Co. 57 Me. 202, 2 Am. Rep. 39, The plaintiff in this case was a passenger, a verdict for $4,850 was affirmed, although and not a trespasser. His youth called for there was no physical injury inflicted. In greater protection from the carrier than if Chesapeake R. Co. v. Osborne, 97 Ky. 112, he had been old enough and strong enough 53 Am. St. Rep. 407, 30 S. W. 21, a verdict to take care of himself. If he had been a of $1,000 was approved. In Louisville & N. man, it could not be doubted that the con- R. Co. v. Garrett, 8 Lea, 438, 41 Am. Rep. ductor would not have kicked him inten- 640, a verdict for $2,000 was sustained. In tionally or accidentally. The conduct of Illinois C. R. Co. v. Latimer, 28 Ill. App. the conductor, in any view of the case, was 552, a verdict for $2,000 was upheld. In inexcusable and unlawful. It was a proper Craker v. Chicago & N. W. R. Co. 36 Wis. case for exemplary damages, and the in- 657, 17 Am. Rep. 504, a verdict for $1,000 struction given properly declared the law. actual damages was approved where the The actual physical injury was not very train conductor kissed the lady plaintiff five considerable, although the blow was in a times on her lips. very vital part of the body, and it is most fortunate that the injury was no greater. The defendant contends that, if it was a criminal prosecution, the maximum fine could not exceed $100, and, upon this predicate, argues that the damages assessed are excessive. But this is not a safe criterion to go by. A comparison of the fines allowed in criminal cases with the amount of recovery allowed in civil cases for the same wrong shows that there is a great disparity. But this is not surprising, for, in the first place, the fine is the punishment which the state inflicts, while the civil recovery is generally allowed as a compensation to the injured party; and, in the next place, the law allows both remedies to be resorted to, and neither is a bar to the other. If the plaintiff were a prominent citizen, the recovery would not be esteemed too large by anyone. If the plaintiff were any man's mother or wife or sister, it would not be esteemed too high. The plaintiff is a child. Women and children are the especial favorites of the law, as they are of all right-thinking men, because they are generally helpless to protect themselves. Counsel for plaintiff have collated many similar cases where recoveries larger than the verdict in this case were upheld, and where the injury was no greater. Of these cases, a reference to the following will suffice: In Trauerman v. Lippincott, 39 Mo. App. 478, a recovery of $50 actual and $1,450 exemplary damages was sustained. In Canfield v. Chicago, R. I. & P. R. Co. 59 Mo. App. 366, a judgment for $2,000 was sustained. In Ruth v. St. Louis Transit Co. 98 Mo. App. 1, 71 S. W. 1055, a recovery of $1,000 was permitted. In Birmingham R. & Electric Co. v. Baird, 130 Ala. 334, 54 L. R. A. 752, 89 Am. St. Rep. 43, 30 So. 456, a judgment for $2,500 was af STATE of Missouri, Respt., v. Julius LEHMAN, Appt. . . . Mo. . . . . . . . . ) (....... 1. An application for change of venue for trial of a criminal cause because of local prejudice comes too late after the case has been called and the securing of the jury is in progress, under a statute requiring reasonable previous notice of such an application to be given. measure 2. Several members of a municipal 3. A joint indictment against the mem- Board of Education, 32 L. R. A. 413. in the presence of the others concerning the and were then and there acting in the official consummation of the agreement. 5. No transcript of the proceedings in one division of a court need be certi fied to another division upon the transfer of a criminal cause from one to the other for trial because of alleged prejudice on the part of the judge presiding in the former division, where the same clerk is the custodian of the proceedings in both divisions. 6. The question of the legality or illegality of the proposed ordinance need not be considered in determining the guilt of a member of a municipal assembly who is alleged to have agreed to sell his vote to secure its passage. 7. That one of several members of a municipal assembly jointly indicted for entering into a corrupt agreement to sell their votes upon a measure to come before them is not guilty, does not require the acquittal of others who are guilty. (June 14, 1904.) Statement by Fox, J.: capacity and character of members of said house of delegates and of the said municipal assembly; that there was then and there pending and undetermined before the said municipal assembly, for the consideration, opinion, judgment, and decision of the members thereof in the said house of delegates, and before the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, in their said official capacity and character as members of said house of delegates and of said municipal assembly of St. Louis, a certain measure, matter, cause, and proceeding in the nature of a proposed ordinance of the said city of St. Louis, designated and known as 'council bill A PPEAL by defendant from a judgment of No. 44,' wherein and whereby it was prothe Circuit Court for St. Louis City posed that the city of St. Louis (by ordiconvicting him of accepting bribes. Afnance duly passed and enacted by the said firmed. municipal assembly, and approved by the mayor of said city) should authorize and direct the board of public improvements of said city of St. Louis to light certain designated streets, avenues, sidewalks, alleys, wharves, and public grounds and squares of the said city of St. Louis after the 1st day of January, 1900, and should designate the fund out of which the cost thereof should be paid; that it then and there became and was the public and official duty of the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, as members of said house of delegates, in their official character and capacity as aforesaid, to give their vote, opinion, judgment, and decision upon the said measure, matter, cause, and proceeding, and for or against the said proposed ordinance, without partiality or favor; that they, the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, well knowing the premises, but unlawfully and corruptly devising, contriving, scheming, and intending to prostitute, betray, and abuse their trust, and to violate their duty as aforesaid as members of the said house of delegates and of the said municipal assembly, did, at the said city of St. Louis, and on or about the said 28th day of The trial and conviction in this cause were based upon the first count of the indictment. It is as follows: "The grand jurors of the state of Missouri within and for the body of the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oaths present: That on or about the 28th day of November, in the year 1899, the city of St. Louis was a municipal corporation in the state of Missouri aforesaid, and that the legislative power of the said city of St. Louis was by law vested in a council and a house of delegates, styled the 'Municipal Assembly of St. Louis,' the members whereof were elected by the citizens of said city, and that before any measure and proposition could become a law and ordinance of said city it was necessary and requisite that the same should be duly passed and enacted by a majority vote of the members of said council and house of delegates, respectively, and approved by the mayor of said city; that at the said city of St. Louis, and on or about the said 28th day of November, in the year 1899, Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner were then and there public officers of the said city of St. Louis, to wit, members of the said house of delegates and of the said municipal assembly of St. Louis, duly elected and qualified, |