Winston v. Lusk. tion for this assault is that it was personal to the brakeman, in furtherance of a personal grudge on his part and in committing this assault the brakeman was not acting within the scope of his duty. We cannot better answer this contention than by quoting from O'Brien v. Transit Co., 185 Mo. 263, 268-9, 84 S. W. 939, as follows: "While the passenger is in the carrier's vehicle he is entitled to protection from assault even from strangers, if by the exercise of the degree of care devolving on the carrier it can be afforded, and a fortiori the carrier owes it to his passenger not to maltreat him by the hands of its own servants. [Hutchinson on Carriers, secs. 595-6.] Quoting again from 3 Thompson on Negligence, secs. 3185, 3186, the author says that the law implies not only an agreement to carry safely, 'but also an agreement for kind, considerate, respectful and decorous treatment to the passenger at the hands of the carrier's own servants. The carrier is liable absolutely, as an insurer, for the protection of the passenger against assaults and insults at the hands of his own servants, because he contracts to carry the passenger safely and to give him decent treatment en route.' If a stranger on the car had done to this man what the evidence for plaintiff tends to show the conductor (brakeman) did, and if the conductor (brakeman) could have prevented the wrong by the exercise of a very high degree of care and failed to do so, the defendant would have been liable; with what stronger reason, therefore, is the defendant liable when the conductor (brakeman) himself is the offender." And, in Eads v. Met. St. Ry. Co., 43 Mo. App. 536, 545, this language is used: "The carrier is responsible for the malicious and wanton acts of the servant to a passenger whether done in the line of his employment or service or not, if done during the course of the discharge of his duty to the master which relates to the passenger. For he owes him, as before stated, not only carriage, but protection also, and if he Winston v. Lusk. furnishes a servant who, instead of protecting, insults or assaults, or beats the passenger, he has directly failed of his duty to the passenger." [See also Spohn v.. Railroad, 87 Mo. 74, and 116 Mo. 617, 632, 22 S. W. 690.] The plaintiff's instructions are also criticised as being misleading on the measure of damages. The instructions covering plaintiff's case on each count, and authorizing a recovery on the facts hypothesized, wind up by saying, "and you should assess his damages at such sum as in your judgment will compensate him for the injuries so received, if any, by virtue of said assault not to exceed the sum of $2000, the amount sued for. These instructions are not erroneous in their general scope and are such as have often been held sufficient on plaintiff's part and leave to the defendant the privilege and duty, if he desires to do so, to ask more definite and explicit instructions pointing out the proper elements of damages and excluding any improper element. [Smith v. Fordyce, 190 Mo. 1, 30, 88 S. W. 679; Strayer v. Railroad, 170 Mo. App. 514, 529, 156 S. W. 732; Powell v. Union Pac. R. Co., 255 Mo. 420, 164 S. W. 628.] Plaintiff's third instruction is likewise general as to the actual damages, and, without limiting the amount to that sued for, then predicates the elements of wantonness and wilfullness authorizing an award of punitive damages. The error in this instruction in not limiting the amount of actual damages to the amount sued for is rendered harmless by the fact that the jury rendered a verdict for a much less amount, to-wit, $250. We have also considered the question of excessive actual damages on each count, but, considering the fact that the jury must be given a large discretion in awarding damages for personal injuries and that these successive assaults were made at a public place and that the jury properly considered plaintiff's wounded feelings, humiliation and disgrace as elements of actual Adkinson v. McKay. damages in addition to his bodily injuries, we cannot say that the same are grossly excessive. The second assault, for which alone punitive damages were awarded, was so peculiarly unwarranted and made for revenge only that we will not reverse the case because of an award of $700 punitive damages. While we recognize the just doctrine of respondeat superior in cases of this character, we regret that the real culprit, the brakeman, is not a defendant jointly with the master and made to bear a part of this burden. It results that the judgment is affirmed. M. R. ADKINSON and W. M. ABRAHAM, Respondents, v. VIRGIL McKAY, Appellant. Springfield Court of Appeals, December 31, 1914. 1. COVENANTS: Obligations: Defenses. A maker of an obligation cannot defend himself against its full performance because some one else is equally liable with him and has agreed with him to be wholly so. 2. WARRANTIES: Breach: Performance in Part: Defenses. Grantor in a warranty deed covenanted to pay such part of a debt as would release from a deed of trust the lands conveyed. In an action by grantees for breach of this covenant, the fact that the deed of trust also covered other lands and that defendant had paid all of his proportionate part of the debt except a part tendered to plaintiffs, was not a good defense. 3. PLEADINGS AND PROOF: Payment: Burden of Proof. The burden of proving payment is on him who asserts the same or seeks to avail himself of its benefits and the rule applies to a defendant, although plaintiff has alleged nonpayment met by a denial. 4. COVENANTS: Breach: Incumbrance: Excessive Payment to Remove: Burden of Proof. Action for breach of covenant in warranty deed to remove an incumbrance from land conveyed, plaintiff's grantees having been forced to pay the mortgage Adkinson v. McKay. debt. A prima-facie case was established by plaintiffs. The burden was upon the defendant to show that the payment made by plaintiff to remove the incumbrance was excessive, such being his contention. 5. APPELLATE PRACTICE: Assuming too Great Burden: Evi. dence: Effect. Where plaintiff is only required to make out a prima-facie case, which he does, the fact that he undertook to do more and thereby elicited some incompetent evidence, does not affect the merits of the case. 6. ·: Evidence: Incompetent: Harmless Admission. The fact that the bookkeeper of the campany holding a note testified that he did not receive payments in question personally at all times or at all times personally make book entries concerning same, but supervised same, did not render his testimony as to payments wholly incompetent. Evi 7. WARRANTIES: Breach of Covenant: Establishment: dence. Action for breach of covenant in warranty deed to remove incumbrance from land conveyed. It was not necessary to establish plaintiff's right to recover that they should introduce in evidence the secured note paid by them, its absence being accounted for and the amount, date and rate of interest not being in dispute. 8. - Breach of Covenants: Unavailing Defense. In an action for breach of covenant in warranty deed to remove an incumbrance from land conveyed, where plaintiffs (grantees) had been forced to pay the note secured by deed of trust covering the land conveyed and the land of another, that the holder of the note, on receiving payment, released all the land will not avail as a defense. Appeal from Pemiscot County Circuit Court.-Hon. Frank Kelly, Judge. AFFIRMED. Ward & Collins and Shephard, Reeves & McKay for appellant. (1) The court erred in the admissibility of evidence. Witness must state facts and not opinions and conclusions; and questions calling for opinions and conclusions are not permissible. Sparr v. Wellmann, 11 Mo. 230; Masterson v. Transit Co., 204 Mo. 507; Adkinson v. McKay. Weatherall v. Patterson, 31 Mo. 458; Marshall v. Taylor, 168 Mo. App. 247; Eskine v. Loewenstein, 82 Mo. 307-308. (2) In a breach of warranty suit the burden is upon the plaintiff not only to show that there has been a breach of the warranty (which is admitted in this case), but also to show the amount of damage to plaintiff. 11 Cyc. 1152; Duffy v. Sharp, 73 Mo. App. 316. Oliver & Oliver for respondent. (1) Where a written instrument cannot be produced and is accounted for, secondary proof of its contents is admissible. Sec. 1983, R. S. 1909. (2) Possession of a note before its loss entitles the witness to testify the amount due on it and the interest it bore. Jenkins v. Emmons, 117 Mo. App. 10; Gould v. Trowbridge, 32 Mo. 291. (3) A judgment should not be reversed in order to have a jury calculate interest. See. 2082, R. S. 1909; Lumber Co. v. Harvester Co., 215 Mo. 221; McCormack H. Mach. Co. v. Blair, 164 S. W. 252. STURGIS, J.-On March 17, 1909, the defendant and one Jones were the owners of a tract of land in New Madrid county, Missouri, and on that date conveyed same to the plaintiffs by warranty deed for the recited consideration of $5600. This land and an adjoining tract were then encumbered by a deed of trust dated June 27, 1904, executed by former owners of both tracts to secure a note for $3849.37, at six per cent interest, given for the purchase price in favor of the Himmelberger-Harrison Lumber Company. The deed of defendant and Jones to plaintiffs, in addition to the usual covenants of warranty, contains this special covenant: "There is a deed of trust against this and other lands in favor of Himmelberger-Harrison, of Cape Girardeau, Mo., for $3800, which the said Virgil |