east seventy five (75) feet of the property herein before described as a portion of Swope parkway." The trustees of said church joined in said right of way deed hereinbefore mentioned, but it is contended that as said trustees did not have an unlimited estate in fee, their relinquishment of the 35-foot strip for the boulevard was invalid; the contention being that, inasmuch as the church lot might revert, if devoted to other than church purposes, the trustees had only a determinable fee. There was no reverter mentioned in the deed. It may be observed that if such reverter were possible, the owners of the reversion have, in their deed of July 14, 1909, recognized and consented to the rights of the public in said 35-foot strip, and the trustees in accepting said deed, and also by joining in said right of way deed, have consented, as far as lies in their power, to the dedication of said strip to the boulevard.

pay 20 cents more than the legal fare, in which the jury awarded $5 actual and $500 punitive believed might render the award of punitive damages, there being disputed facts which if damage excessive, the trial court was authorized to grant a new trial unless plaintiff remitted $400.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 153.]

Appeal from Circuit Court, Buchanan County; C. H. Mayer, Judge.

Action by H. C. Smith against the Atchison, Topeka & Santa Fé Railway Company. From a judgment granting defendant's motion for a new trial, plaintiff appealed to the Court of Appeals, where judgment was reversed and case remanded (192 Mo. App. 210, 180 S. W. 1036), whereupon defendant brought certiorari to the Supreme Court, where the judgment of the Court of Appeals was quashed (268 Mo. 225, 186 S. W. 1075), and case remanded. Judgment of trial court affirmed.

Charles F. Strop and Graham & Silverman, all of St. Joseph, for appellant. Culver & Phillip, of St. Joseph, for respondent.

[15] It is not shown that the trustees acted without authority from the church for whose benefit and under whose direction they held the property. They are presumed to have acted by authority. The act of the trustees in consenting to an easement of 35 TRIMBLE, J. This is an action to recover feet on the east side, in order to create a damages for wrongful ejection of a passenbeautiful boulevard in front of the church, ger from one of defendant's trains. The veris not disposing of the property in a manner dict was for $5 actual and $500 punitive inconsistent with the purposes of the trust. damages. The circuit court thought the pun[16, 17] Trustees can properly dedicate itive award excessive, and, on consideration property to a public use not inconsistent with of the motion for new trial, offered plaintiff the trust. 39 Cyc. 327; Prudden v. Lindsley, the opportunity of remitting $400, in which 29 N. J. Eq. 617. No complaint of the trus-event judgment would be entered for $5 actutees' action has ever been made by the al and $100 exemplary damages. Plaintiff church, nor has it at any time raised any objection to such dedication or to the boulevard. The lapse of 10 years would bar the church from reclaiming it. Hoke v. Central Farmers Club, 194 Mo. 576, 91 S: W. 394. [18] The facts certainly do not justify a court of equity in declaring that this strip is private property and upon that view decree the cancellation of the tax bills in controversy at the behest of parties who have no claim nor interest in said tract and when no one interested therein has raised any objection to the dedication of said strip to public use, and there is not the remotest likelihood of their doing so, even if it were possible for such objection to succeed.

The judgment of the chancellor dismissing the bill is affirmed.

declined to make the remittitur, and the motion for new trial was sustained solely because the court regarded $500 as an excessive award of punitive damages. Thereupon the plaintiff appealed.

Defendant operated certain suburban gasoline motorcars on one of its branch railroads. Plaintiff boarded one of these passenger conveyances at Gower, Mo., desiring to be transported as a passenger to St. Joseph, Mo., a distance of 20 miles. He arrived at the station just as the train was leaving, and did not have time to purchase a ticket. The lawful rate of fare was 2 cents a mile, and according to that rate he tendered the conductor 40 cents for the full distance he wished to go. The conductor refused to accept this amount, and demanded 60 cents, which would be 3 cents per mile. Plaintiff

ELLISON, P. J., concurs. BLAND, J., not refused to pay this rate, and the conductor, sitting.

SMITH v. ATCHISON. T. & S. F. RY. CO.

(No. 11721.)

(Kansas City Court of Appeals. Missouri. April 2, 1917.)

PUNITIVE

NEW TRIAL 76(1) GROUND
DAMAGES-EXCESSIVENESS.
In an action for wrongfully ejecting a
deputy sheriff from a train on his refusal to

in the presence of the passengers, told him he would stop the car and put him off. Plaintiff would not pay more, and the conductor

stopped the car, took plaintiff by the arm,

led him to the door and put him off. After being put off, he told the conductor he was a deputy sheriff and "would like to go on." The conductor replied, "I don't give a God damn who you are, you are off now," and would not take him. The car at this time

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was a half or three-quarters of a mile from unrestrictedly into force. So that whether the station. It was about 6:30 p. m. of Au- plaintiff made a case for punitive damages gust 14, 1913, a hot summer evening. Plain- depends upon the manner and language used tiff had to walk back to the station, where by the conductor toward plaintiff at the 40 or 45 minutes later he caught a Grand time of his ejection from the car. If the Island Railroad train, operating over the conductor used the language toward plaintiff same tracks, and came on to St. Joseph. which the latter says he did, there was a Plaintiff suffered no illness or untoward case for punitive damages in some amount physical effects from this. Plaintiff testified at least. And it will be observed that the that the conductor did not strike him nor of- trial court, as well as the jury, found that fer to do so; that he, the conductor, "got a plaintiff had made a case which permitted little mad, not so very much, seemed a little the allowance of such damages. In other out of humor"; that he was mad because words, both court and jury accepted plainplaintiff would not give him the 60 cents. tiff's version of the case. The only difference When asked how the conductor indicated he was that the jury thought the punitive damwas mad, plaintiff replied: "He just said I ages should be fixed at $500, while the couldn't ride. I think he said, 'By God, court thought $100 was sufficient. you can't ride.'" He was not sure the conductor used the oath last mentioned, but was sure he swore as hereinbefore stated, after plaintiff was off the car. There was no scuffle or tussle.

The question therefore raised by plaintiff's appeal is as to whether the trial court, having recognized that a case for punitive damages was made, had the power to set aside the verdict for the sole reason that, in his opin

The appeal was first submitted to us at the October term, 1915, and an opinion by Ellison, P. J., was handed down December 18, 1915. See Smith v. Atchison, T. & S. F. R. Co., 192 Mo. App. 210, 180 S. W. 1036. This court entertained the view that in a case where punitive damages, under any view of the evidence, was at all permissible, not only was it a question for the jury to say whether any such damages should be allowed, but that, if they were allowed the amount thereof was a matter within the exclusive province of the jury, subject to the right of the court to set aside the award only in case it was so great as to appear outrageous, such that all reasonable men would unhesitatingly pronounce so unreasonable as to induce the belief that the jury, in making such an award, must have acted from partiality, prejudice, or other improper motive. It would seem that, up to that time at least, the In 3 Graauthorities justified that view. ham & Waterman on New Trials, 1135, it is

The evidence offered in behalf of the de-ion as a thirteenth juror, the award of punifendant as to what took place between the tive damages was greater than he thought it plaintiff and conductor does not differ great- should be. ly from plaintiff's version, except that the conductor denies using any oaths. The brake man, who was at the rear of the car, but who knew "there was some kind of trouble," and that the trouble was with plaintiff, though he did not know his name, and that the car was being stopped for the purpose of putting him off, went to them so that, if necessary, he could render such assistance as he thought proper. He either followed plaintiff off the car or preceded him. He says he does not think the conductor used the language plaintiff ascribed to him after he (plaintiff) was off the car on the ground, but admitted that there might have been some of the conversation he did not hear. He would not say the conductor did not use it, but only that he did not hear it. Other evidence in behalf of defendant as to what took place in the car was to the effect that the matter was carried on in ordinary conversational tones, neither seemed to be angry, and no excited talk was indulged in so far as the witnesses (who were passengers in the car) heard. There is no question, however, but that the passengers fully understood that plaintiff was being put off the car because he would not pay the amount the conductor demanded.

Some time prior to this the Supreme Court of the United States had dissolved the injunction which the defendant had obtained against the enforcement of the two-cent fare law, so that there was then not even apparent authority for the collection of more than two cents per mile. Plaintiff's demand for punitive damages, however, is clearly bottomed upon the conductor's manner and conduct towards plaintiff, and not upon any malicious conduct of defendant itself in instructing its conductors to continue collecting three cents per mile after the two-cent fare law had gone

said:

"According to the language, however, of adjudged cases, to justify the court in setting aside a verdict, the damages ought to appear outrageous, or manifestly to exceed the injury, and such that all mankind would at once pronounce unreasonable, and so as to induce the court to believe that the jury must have acted from prejudice or partiality, or were influenced by some improper considerations."

of damages, in an action of this nature, in opposition to the judgment of the jury. It is the judgment of the jury, and not of the court, which is to determine the damages."

In Coleman v. Southwick, 9 Johns. (N. Y.) 45, 51 (6 Am. Dec. 253), where plaintiff's verdict was attacked as excessive, Chancellor

Kent said:

It

"The question of damages was within the proper and peculiar province of the jury. rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality, or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal

torts and injuries."

And on page 52 of the same case he said: "The damages therefore must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain

the excess."

In Morgan v. Ross, 74 Mo. 318, 325, our own Supreme Court said:

"In vindictive actions, and so this action is now regarded, damages are given for the twofold purpose of setting an example and of punishing the wrongdoer. It is believed that no case can be found in the books where the ver

dict in an action such as this has been set aside upon the sole ground of awarding excessive damages. Peculiar considerations exempt a verdict in an action of this nature from the interference of the court, when such interference is sought to be bottomed alone on the excess of the recovery. The amount of the damages in such cases is considered a question peculiarly within the province of the jury, and as one which cannot from the very nature of things be estimated or computed upon any mere compensative or pecuniary basis (Taylor v. Shelket, 66 Ind. 297), and courts certainly would not interfere with a verdict in this, or in kindred cases, where there is no scale whereby the damages can be graduated with certainty, unless proof be introduced showing flagrant abuse of those powers which the law had confided to the intelligence and good sense of the jury."

This was afterwards approved in Hartpence v. Rogers, 143 Mo. 623, 638, 45 S. W. 650.

ages were permissible, the question whether they should be allowed was exclusively for the jury, and not for the court. Carson v. Smith, 133 Mo. 606, 617, 34 S. W. 855; Nicholson v. Rogers, 129 Mo. 136, 141, 31 S. W. 260. This being true, we were of the opinion that the survey made by the trial court,

in order to determine whether the verdict as

to such damages should stand, had to be confined to the evidence tending to support the award, and could not extend to the defendant's evidence in opposition thereto. Otherwise the trial court would substitute its judgment for that of the jury, as to the allowance of punitive damages, merely because the judge accepted as true certain evidence of the defendant in opposition to such damages. But in a case where, under any view of the evidence, punitive damages is at all permissible, the jury alone has the right to say whether they will be allowed or not. And therefore the trial court cannot say the jury's punitive award must not stand merely because the court believed certain evidence which the jury by their verdict show they did not believe. The same is true with regard to disputed evidence offered by defendant in mitigation of such damages. For if the court, merely because he believes that some disputed evidence offered by defendant in defense or in mitigation of punitive damages is true, can say that the award thereof is too much, then he is substituting his judgment for that of the jury as to the measure of such damages. In all other kinds of damages the court gives instructions as to their measure, but as to punitive damages he is not allowed to even hint a measure. The jury are merely told under what circumstances they may allow them if they see fit, and the amount thereof is left to their honest, unbiased, and impartial judgment.

As hereinbefore stated, there is practically no difference between the evidence of plaintiff and that of defendant as to what took place at the time of the objection except as to the matter of the conductor's cursing. The defendant further sought to establish the theory that plaintiff boarded the train and tendered his cash fare for the purpose of making a test case of the defendant's right to collect the 3 cents a mile the defendant was requiring its conductors to demand. This the plaintiff denied. As both court and jury agree that punitive damages should be allowed, they did not accept the defendant's contentions either as to the conductor's language and conduct or as to plaintiff's alleged motive in getting on the car and failing to pay the 60 cents. But if plaintiff had such motive it was not an unlawful one, and did not justify the conductor in demanding, without authority of law, 3 cents per mile, and putting plaintiff off and using profane language in doing so. At most, plaintiff's motive, if he had it, could only reduce the punitive The case being one in which punitive dam-damages, though this might seem to relieve

It was therefore our view that, inasmuch as both the trial court and the jury agreed that punitive damages should be awarded, the amount thereof as fixed by the jury was not subject to revision by the trial court unless the amount was so flagrantly outrageous and out of proportion to the facts presented in support thereof as to cause all reasonable and fair-minded men to at once recognize the fact and say the jury must have been swayed by feelings and motives which were not proper and which unquestionably warped their judgment.

defendant of a part of its punishment for an trial court, it should be upheld, and that, unlawful act merely because the plaintiff, in since we did not consider the whole evidence a proper manner, asserted and stood upon to see whether there was some substantial his right. And even if the trial court, in basis for the court's action, we applied an erpassing upon the motion for new trial, roneous test. Our judgment was then quashthought plaintiff had such motive, and oned. The Supreme Court was asked by dethis account thought the punitive damages fendant to render final judgment on the merwere $400 too much, or even if he agreed its of the case, but held that it was without wholly with the jury as to the facts, but jurisdiction to do so, citing Majestic Mfg. Co. thought that, under the circumstances, the v. Reynolds, 186 S. W. 1072, which holds that plaintiff being an adult, a deputy sheriff, etc., the Supreme Court has no such jurisdiction $100 was enough punitive damages for wrong- and cannot interfere with a judgment of the fully putting him off the train in the pres- Court of Appeals unless the latter, in renderence of others and subjecting him to this ing its judgment, failed to follow the last disagreeable and humiliating experience, and previous ruling of the Supreme Court. The the necessity of walking the ties for half a case was then sent back to us to consider mile back to the station on a hot August aft- anew, and, being now before us, we, in acernoon or evening, still this was a setting up cordance with that mandate, proceed to do so. of his judgment against that of the jury as Under the ruling now promulgated by the to the measure of the punitive damages that Supreme Court in said case of certiorari (186 should be awarded. And since the question S. W. 1075, 268 Mo. 225), we must scan the of the measure of such damages was peculi- entire record, and, if there is any substanarly with the jury, subject only to the re- tial evidence anywhere therein which, if acquirement that they must not extend beyond cepted by the trial court as true, would justithe bounds of reason, we were of the opinion fy him in thinking the award of punitive that only the evidence tending to support damages was greater than is warranted by the verdict should be considered in deter- the facts, then the action in granting a new mining whether it was so out of the bounds trial must be upheld. On the undisputed of reason as to justify the court in setting facts and those established by the verdict of it aside. And since we did not. think $500 the jury, and approved by the trial judge could be said, as a matter of law, to be out since he thought there should be punitive of reason for the unlawful subjecting of a damages to the extent of $100, we do not man, even a deputy sheriff, to such an ex- think it can be said, as a matter of law, that perience, we were of the opinion that the $500 is excessive punitive damages for the court's action was unauthorized and not in wrongful and unauthorized putting of a man harmony with the authorities then in exist-off a train under the circumstances disclosed. ence. The trial court agreed with the jury If, however, notwithstanding the trial in their conclusions on the weight of the evi-judge's recognition of the fact that punitive dence as to its calling for punitive damages, damages to the extent of $100 was proper, but disagreed with the jury as to the amount he could consider disputed evidence offered thereof, and set the verdict aside on that ac- by defendant, namely, that plaintiff got on count. This court therefore reversed the the car and tendered 40 cents cash fare in judgment and remanded the cause, with di- order to have a case, and,' believing that to rections to reinstate the verdict, since, upon be true, thought that under those circumthe facts found and approved, it was "too ap- stances the experience and treatment plainparent to question that the verdict in this tiff received did not warrant the imposition case was not so flagrantly and outrageously of punishment to the extent of $500, then beyond the limits of reason as to force a the granting of the motion for a new trial conviction of passion, prejudice, or corrup- may be proper. At any rate we so hold untion on the part of the jury." 180 S. W. 1038, der the ruling of the Supreme Court. 192 Mo. App. 215.

The judgment of the trial court is, therefore, affirmed. All concur.

ELLISON, P. J., concurs in separate opinion. BLAND, J., not sitting.

On certiorari, however, the Supreme Court held (State ex rel. Atchison T. & S. F. Ry. Co. v. Ellison, 186 S. W. 1075, 268 Mo. 225) that it was difficult to see any reason for any distinction between the rule defining the power of a trial court over an award of puni- ELLISON, P. J. (concurring). If it be tive damages and one of compensatory dam- granted that the trial court in passing on the ages, and that, on principle, the same rule motion for new trial had authority to look requiring appellate courts to uphold the trial to the entire evidence in the case, that for court in the granting of a new trial where defendant as well as that for plaintiff, in orthere is any substantial evidence to support der to determine whether punitive damages such action "ought to and does apply" in a were excessive, that does not touch the real case where the new trial is granted upon an question involved. The real question is award of punitive damages as upon any oth- whether the court or the jury measure punier damages. The court then held that, if tive damages. Of course, if there is no subupon the whole case there was any substan- stantial evidence to justify such damages, tial evidence to support the action of the the court can so declare as a matter of law.

And if there is evidence to sustain punitive harmless, where no other note was claimed and damages, yet they are put so excessively high, the purpose of giving it was clearly shown. or low, as to strike all reasonable persons as [Ed. Note. For other cases, see Appeal and an outrage so as to show that the jury aban-Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.] doned its functions as a solemn deliberative 5. PRINCIPAL AND AGENT 22(1), 122(1)— PROVING RELATION BY AGENT'S DECLARAbody, the court may interfere. TIONS.

In this case the trial court refused defendant's demurrer, submitted punitive damages to the jury, and sustained a verdict for such damages; the trouble being that it thereafter assumed authority to fix the amount of such damages. By reference to our opinion when the case was first here (192 Mo. App. 210, 180 S. W. 1036) it will be seen that we undertook to make plain by

reference to the Missouri cases and other authority that it was the exclusive province of the jury to name the sum of a plaintiff's recovery, never to be interfered with by the court except in the instances just stated, where the amount was such as to demonstrate that the jury had abandoned the functions of jurymen and had shocked the moral sense. And we decided that $500 returned by the jury was not so large as to authorize the trial court, under the foregoing rules of law, to say that the jury had abandoned its proper function and committed an outrage against the moral sense. But the decision of the Supreme Court made in this case on certiorari is "the last previous ruling," and we, of course, should follow it as required by section 6, art. 6, Amendment 1884 to the Constitution.

OVIATT v. WEBER. (No. 14576.) (St. Louis Court of Appeals. Missouri. Argued and Submitted March 8, 1917. Opinion Filed April 3, 1917. Rehearing Denied April 18, 1917.)

1. EXECUTORS AND ADMINISTRATORS 253CONTEST OF CLAIM-SUFFICIENCY OF EVI

DENCE.

Evidence held sufficient to justify submission to jury of question of indebtedness on a note against an estate, claimed to have been [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 904, 905.] 2. EXECUTORS AND ADMINISTRATORS 253 CONTEST OF CLAIM-INSTRUCTIONS.

settled before decedent's death.

Agency or an agent's powers cannot be proved by agent's declarations, but this did not apply where money paid to agent was admitted by the principal to have been received, and that it was his personal property.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 40, 416, 418.] 6. WITNESSES 240(2)-LEADING QUESTIONS -DISCRETION OF COURT.

allowing the propounding of leading questions. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 795.]

The trial court is vested with discretion in

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Claim by Daniel W. Oviatt, administrator of the estate of Henry W. Blanke, against the estate of Frank Weber, deceased. Claim rejected in probate court, and claimant appealed to circuit court, where defendant had judgment, and plaintiff appeals therefrom, and from denial of motion for new trial. Affirmed.

John W. Booth, of Washington, Mo., and Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellant. W. L. Cole, of Union, and James Booth, of Pacific, for respondent.

REYNOLDS, P. J. Henry W. Blanke exhibited a note executed by Frank Weber and his wife, whereby they promised to pay to the order of Henry W. Blanke the sum of $1200, one year after its date, with interest

It

from date at the rate of 6 per cent. per annum, the note being dated at St. Louis, July 21st, 1899, and being a negotiable note. is endorsed, "Interest paid to July 21st, 1904." The Probate Court rejected the demand and Blanke appealed to the circuit court, where on a trial before the court and a jury, the demand was again rejected, a verdict being rendered for the defendant. Filing a motion for a new trial and excepting to that being overruled, Blanke duly appealed. Pending the appeal Henry W. Blanke died and Daniel W. Oviatt, having been appointed administrator, was duly substituted as appellant. We shall refer hereafter to Henry W. Blanke, the original claimADMISSIBILITY-DE-ant, as plaintiff and appellant. CEASED'S DECLARATION AGAINST INTEREST. Testimony of a son as to decedent's statements to wife when asking her to sign note claimed against his estate was inadmissible.

Where the issue was whether a note against
an estate had been paid, and not how it was
paid, instruction authorizing finding for estate,
"if you find
* note sued on was paid in

any way," was not erroneous.
[Ed. Note. For other cases, see Executors
and Administrators, Cent. Dig. §§ 904, 905.]
3. EVIDENCE 276

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1135.]

There was no denial that the note had been executed by Frank Weber and his wife, the defense being payment.

It appears that Frank Weber, the decedent, was a traveling man in the employ of a 4. APPEAL AND ERROR 1050(1)-HARMLESS candy company of St. Louis, with which the ERROR-ADMISSION OF EVIDENCE.

Testimony of a son as to decedent's statements to a wife when asking her to sign note claimed against his estate was inadmissible, but

plaintiff was connected. Weber's territory at the time of the transaction here involved and until his death in 1905, was in Texas.

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