Blumenfeld v. Meyer-Schmid Grocer Co.

• Decision Date: 05 April 1921
• Docket Number: No. 16089.,16089.
• Parties: BLUMENFELD v. MEYER-SCHMID GROCER CO. et al.
• Court: Missouri Court of Appeals

230 S.W. 132

206 Mo. App. 509

BLUMENFELD v. MEYER-SCHMID GROCER CO. et al.

No. 16089.

St. Louis Court of Appeals. Missouri.

April 5, 1921

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by David Blumenfeld against the Meyer-Schmid Grocer Company and another, plaintiff taking an involuntary nonsuit as to the unnamed defendant, and, his motion to set aside the nonsuit being overruled, he appeals. Judgment reversed, and cause remanded.

Greensfelder & Levi and H. C. Whitehill, all of St. Louis, for appellant.

Jourdan, Rassieur & Pierce, of St. Louis, for respondent.

ALLEN, P. J.

This action was instituted against the Meyer-Schmid Grocer Company, a corporation, and Robert C. Rolf, defendants, to recover for personal injuries alleged to have been inflicted upon the plaintiff by a servant of the defendants in charge of a team and wagon belonging to them. At the close of plaintiff's case, the court gave two peremptory instructions, one to the effect that under the pleadings and evidence plaintiff could not recover against the defendant Meyer-Schmid Grocer Company, and the other to the effect that under the pleadings and evidence plaintiff could not recover against the defendant Rolf. It appears that the plaintiff did not except to the giving of the peremptory instruction as to the Meyer-Schmid Grocer Company, but did except to the giving of the instruction as to the defendant Rolf; and plaintiff thereupon took an involuntary nonsuit as to defendant Rolf. Thereafter plaintiff moved to set aside the nonsuit, and, upon this motion being overruled, appealed to this court.

The petition charges that on November 2, 1915, an agent and servant of defendants was driving a two-horse team and wagon, belonging to defendants, across the "McKinley Bridge" behind a wagon which plaintiff was driving; that defendants' said servant unlawfully demanded that plaintiff drive his wagon, to the side to permit defendants' team and wagon to pass, "and unlawfully, willfully, and maliciously then and there made an assault upon plaintiff, for the purpose of forcing plaintiff to get his wagon to the side so that said two-horse team and wagon could pass, and then and there did strike and beat plaintiff in and about the face, head, and body, and thereby injured and damaged plaintiff's right arm and left leg. And it is averred that as a result of his said injuries plaintiff has become incapacitated from doing work and will be so incapacitated in the future to his damage in the sum of $5,0440. It is further alleged that said acts of defendants' servant were done maliciously and without legal justification, entitling plaintiff to recover exemplary damages therefor." Judgment is prayed for $5,900 actual and $2,500 punitive damages.

The evidence shows that the team and "two-horse wagon" mentioned in the petition were the property of the defendant Rolf, though the wagon had upon it the name "Meyer-Schmid Grocer Company"; and that one Harry Becker, who was upon the wagon, was an employé of defendant Rolf. The goods in the wagon belonged to the Meyer-Schmid Grocer Company, but were being hauled under a contract between that company and the defendant Rolf, upon whom alone plaintiff now seeks to fasten liability for the assault upon him.

When the controversy arose resulting in the assault, plaintiff was driving his wagon westwardly across the McKinley Bridge, i. e. approaching the city of St. Louis, and the, said wagon of defendant Rolf—whom we shall hereafter term the defendant—was being driven across the bridge in the same direction. It appears that though Harry Becker was a servant of defendant in charge of the latter's team and wagon, he was `not driving the team when the trouble arose, but was seated in the bed of the wagon mending a whip while his brother, John Becker, sat upon the driver's seat and held the reins. John Becker, it is said, was not in defendant's employ, but got upon the wagon, lit Harry Becker's invitation, to ride across the river. At the time of the assault plaintiff's wagon was in front of defendant's team and wagon, and both wagons, and other traffic upon the bridge as well, had been stopped by a herd of cattle which was being driven westwardly across the bridge.

The testimony of plaintiff's witnesses is set out in appellant's abstract in narrative form. Respondent, however, has filed an additional abstract setting forth some testimony of the witnesses not included, it is said, in appellant's abstract. We shall undertake to set out the substance of the testimony of the witnesses, so far as here material, as it appears in the two abstracts filed.

The testimony of plaintiff's first witness, one Cannefax, as shown by appellant's abstract, is substantially as follows:

The witness testified that he was with a friend in an automobile on the McKinley Bridge at the time mentioned, driving toward St. Louis, and that they could not proceed forward on account of a large herd of cattle in front of them; that the two wagons, viz., plaintiff's one-horse wagon and defendant's two-horse wagon, were in front of the automobile in which the witness was riding, and were on the north side of the bridge, on the "approach" on the St. Louis side of the river, plaintiff's wagon being immediately in front of defendant's wagon; that the men in defendant's wagon "hollered to plaintiff to get out of the way, plaintiff's wagon at the time being as close to the outside railing as it could be"; that plaintiff told them he could not get out of the way because of the cattle in front of him; that "they then drove the tongue of their wagon against plaintiff's wagon and tried to shove his wagon into the cattle, whereupon plaintiff said he could not get out of the way and could not run over the cattle"; that thereupon one of these men jumped off the wagon, grabbed plaintiff by the neck, and tried to pull him from the wagon, and "then went and got a stake from the Meyer-Schmid Grocer Company wagon and they both ran plaintiff off of his wagon"; that there were two men on the rear wagon, one of whom was driving, the other being seated in the bed of the wagon, and that the one who first got off of the wagon called to the other, saying: "Come on, lets get the Jew son of a —." The witness stated that the "other fellow" then got out of his twohorse wagon, bringing a wagon stake with him, and struck plaintiff, "who at the time was hollering and begging and pleading, and who jumped off his wagon and ran into the herd of cattle." And the witness said that he saw "both men of the Meyer-Schmid Grocer Company wagon strike plaintiff."

On cross-examination the witness reiterated that he saw both men from the Meyer Schmid Grocer Company wagon strike plaintiff.

Further testimony of this witness set out in respondent's abstract is to the effect that he "saw the driver of the stake wagon go up and take the Jew by the neck," and that the Jew hit him with a whip; that the man who had been driving the stake wagon went back and got a stake and called to the other man, who was lying down in the back of the stake wagon as stated above; that "at this place upon the bridge there was room for two wagons to pass, the plaintiffs wagon being close to the north side of the bridge."

The testimony of plaintiff, as a witness in his own behalf, as preserved in appellant's abstract, shows that plaintiff lived in Venice, Ill., where he was engaged in the scrap-iron and junk business; that on the day mentioned he was driving his wagon to St. Louis across the McKinley Bridge from Venice, Ill., when he came upon a herd of cattle, proceeding in the same direction, on account of which he could not pass, the cattle taking up the entire width of the bridge. He testified that he had his wagon on the north side of the bridge, "against the railing"; that a stake wagon drove up behind him and pushed into his wagon, and that "he was holding his horse so that it would not fall"; that he turned about and said to the men in the wagon behind him: "What are you trying to do? You tried to kill my horse"; that the men in the rear wagon then pushed plaintiff's wagon "down the approach to Broadway where the coal chute is located," and that when plaintiff again asked what they were trying to do, "they said, `Well, I will show you what I am trying to do,' and they got off of the wagon. One came to the right-hand side and the other on the lefthand side of the plaintiff, and that each of them had stakes from the wagon."

Plaintiff's further testimony on direct examination, as it appeared in appellant's abstract, is as follows:

"That one fellow put one foot on the wagon and one on the shaft and took hold of the side and tried to pull plaintiff off his wagon, and that when plaintiff resisted he went and got a stake from the wagon in the rear, with which he struck plaintiff upon the right hand and left foot, and that each of the men from the rear wagon struck him."

On cross-examination plaintiff said that the man who came from the seat of the wagon was the one who tried to pull him from his wagon; that when this man first came up he "tried to pull the plaintiff by the leg and get into the wagon and pull plaintiff off"; that the man then returned to the rear wagon and got a stake, and then came to plaintiff's wagon and struck plaintiff; that "the other man from the rear wagon was on the other side, and he also hit plaintiff with a stake." Plaintiff said that he was sure that two men from the rear wagon hit him.

According to the testimony contained in respondent's abstract, plaintiff, in testifying, stated that the man who was driving the stake wagon was the only one who had a stake. And he admitted when his deposition was taken that he stated that the other man on the stake wagon did not strike him, "only grabbing hold of his lines"; that when he got to the office at the west end of the bridge the man who had struck him with a stake was gone; that a police officer arrested the other man on...