Calloway v. Fogel

• Citation: 213 S.W.2d 405,358 Mo. 47
• Decision Date: 12 July 1948
• Docket Number: 40634
• Parties: Cabell Calloway, Appellant, v. Paul M. Fogel, Lyle L. Fogel, Morris S. Fogel and L. E. Guthrie, Co-Partners and Doing Business as the Pla-Mor Ballroom, Respondents
• Court: United States State Supreme Court of Missouri

213 S.W.2d 405

358 Mo. 47

Cabell Calloway, Appellant, v. Paul M. Fogel, Lyle L. Fogel, Morris S. Fogel and L. E. Guthrie, Co-Partners and Doing Business as the Pla-Mor Ballroom, Respondents

No. 40634

Supreme Court of Missouri

July 12, 1948

Rehearing Denied September 13, 1948.

Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.

Reversed and remanded.

Maurice J. O'Sullivan and John G. Killiger, Jr., for appellant Samuel Jesse Buzzell of counsel.

(1) Defendants' injection of inflammatory matters wholly outside of the record and their studied appeals to racial, sectional, local and war prejudices, with the failure of the court to adopt adequate repressive measures constituted reversible error. "The Problem of Proof," Osborn (2nd Ed.), p. 112; "The Mind of the Juror" (1937), Osborn, pp. 87, 92; State v. Accardo, 129 La. 666, 56 So. 631; Aristotle, Rhetoric Book I, Ch. 1 (The Basic Works of Aristotle, McKeon Ed., 1941); New York Central Railroad Co. v. Johnson, 279 U.S. 310, 73 L.Ed. 706; Smith v. St. L., S.W.R. Co., 31 S.W.2d 105; Dodd v. Missouri-Kansas-Texas R. Co., 184 S.W.2d 454, 353 Mo. 799; Walsh v. Terminal R. Assn. of St. Louis, 182 S.W.2d 607, 353 Mo. 458; Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Towbin v. United States, 93 F.2d 861; Union Pacific Co. v. Field, 137 F. 14; O'Neill v. State, 189 Wis. 259, 207 N.W. 280; "Counsel's Appeals to Racial, Religious, Social and Political Prejudices," 78 A.L.R. 1438; Latham v. United States, 226 F. 420; Pharr v. United States, 48 F.2d 767; Volkmor v. United States, 13 F.2d 594; Skuy v. United States, 261 F. 317; Robinson v. United States, 32 F.2d 505, 66 A.L.R. 468; Maytag v. Cummins, 260 F. 74, 16 A.L.R. 712; Frisby v. United States, 35 App. D.C. 513; Vaughan v. Magee, 218 F. 630; James Stewart & Co. v. Newby, 266 F. 287; Beck v. Wings Field, Inc., 122 F.2d 114; Pierce v. United States, 86 F.2d 949; People v. Levan, 295 N.Y. 26, 64 N.E.2d 341; People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 46 L.R.A. 641, 70 Am. St. Rep. 495; People v. White, 365 Ill. 499, 6 N.E.2d 1012; Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355; Cassemus v. State, 16 Ala.App. 61, 75 So. 267; Waldron v. Waldron, 156 U.S. 361, 15 S.Ct. 383, 39 L.Ed. 453; Throckmorton v. Holt, 180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663; Lockhart v. United States, 35 F.2d 905; Middleton v. United States, 49 F.2d 538; The Associated Press, June 29, 1947; "Report on Lawlessness in Law Enforcement" of the National Committee on Law Observance and Law Enforcement (1931); Smerke v. Office Equipment Co., 158 S.W.2d 302; "Goldstein's Trial Technique" (1935), pp. 219-220. (2) Instruction 10 given for defendants was reversible error. People on inf. v. De Stefanis, 34 N.Y.S. (2d) 52; People on inf. v. Dale, 47 N.Y.S. (2d) 702; People v. Reid, 40 N.Y.S. 793, 180 Misc. 289; People v. Ludovici, 13 N.Y.S. (2d) 88; Sec. 3959, R.S. 1939; State ex rel. v. Collins, App., 172 S.W.2d 284; Wright v. Automobile Gasoline Co., Mo., 250 S.W. 368; Imler v. Yeager, 245 S.W. 200; Leve v. Putting, 196 S.W. 1060; Moran v. City of Beckley, 67 F.2d 161; Noe v. Meadows, 64 A.L.R. 648, 229 Ky. 53, 16 S.W.2d 505; 64 A.L.R. 653; 6 C.J.S., pp. 602, 613, 614, Secs. 6, 13; 4 Am. Jur. 148, secs. 41, 42; Barree v. City of Cape Girardeau, 132 Mo.App. 182, 112 S.W. 724; 35 Am. Jur. pp. 971, 972, sec. 542; Neallus v. Hutchinson Amusement Co., 126 Me. 469, 131 A. 671; Annotation, 55 A.L.R. 1197.

Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles for respondents.

(1) There was no error as to inflammatory matters because all references and inferences were within the record, all objections and requests by the appellant were sustained by the court, and there were no objections by the appellant to most of the matters raised. Gillioz v. Missouri State Highway Comm., 169 S.W.2d 901, 350 Mo. 1077; Beavers v. Cab Calloway, 61 N.Y.S. (2d) 804, 66 N.Y.S. (2d) 613; Cummins v. St. Louis Amusement Co., 147 S.W.2d 190; Willis v. Railway Co., 178 S.W.2d 341, 352 Mo. 490; Sparks v. Auslander, 182 S.W.2d 167, 353 Mo. 177; Goyette v. St. Louis & S.F. Ry. Co., 37 S.W.2d 552; Anderson v. Sutton, 293 S.W. 770, 316 Mo. 1058; Osby v. Tarlton, 85 S.W.2d 27, 336 Mo. 1240; Perringer v. Food Co., 148 S.W.2d 601; Cullen v. Johnson, 29 S.W.2d 39, 325 Mo. 253; Gildehaus v. Jones, 200 S.W.2d 523; Newport v. Montgomery Ward & Co., 127 S.W.2d 687, 344 Mo. 646; Busch v. Railroad Co., 17 S.W.2d 337, 322 Mo. 469; Gann v. Railway Co., 6 S.W.2d 39, 319 Mo. 214. (2) Instruction 10 was not erroneous but was based upon the evidence and the law. Cummins v. St. Louis Amusement Co., 147 S.W.2d 190; Greaves v. Kansas City Junior Orpheum Co., 80 S.W.2d 228, 229 Mo.App. 663; City of Festus ex rel. v. Kausler, 77 S.W.2d 197; Peterson v. Fleming, 297 S.W. 163.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Plaintiff (appellant) filed petition in two counts. In the first count $ 50,000 actual and $ 50,000 punitive damages were asked for an assault and battery upon plaintiff by one Todd, employed by defendants who conducted a ballroom in Kansas City. In the second count plaintiff asked for $ 50,000 actual and $ 50,000 punitive damages for false arrest and imprisonment. Defendants' answer is, in effect, a general denial, and they filed a counterclaim asking for $ 50,000 actual and $ 50,000 punitive damages. The counterclaim is based principally on alleged unfavorable publicity because of the encounter upon which plaintiff bases his count for assault and battery. Also an item of the counterclaim is an alleged refund of about $ 2,000 made by defendants to their patrons on the night of the alleged assault and battery. After the assault the orchestra playing for the dance in defendants' ballroom refused to further perform and the dance terminated, hence the alleged refund. Verdict and judgment went for defendants on both counts of plaintiff's petition and for plaintiff on the counterclaim. Plaintiff appealed.

Error is assigned on defendants' instructions 10, 11, and 12, and on argument of counsel.

Plaintiff, a colored man, is a showman, orchestra leader and music composer of considerable note, and professionally known as Cab Calloway. He and his orchestra have performed throughout the United States and Canada, and have performed in England, Holland, Belgium and France. Defendants operate a place of amusement at 3124 Main Street, Kansas City, under the name of Pla-Mor Ballroom. The parents of Felix H. Payne, a young colored man, resided in Kansas City. Felix, who was reared in Kansas City, was employed in the Department of Labor, Washington. December 22, 1945, Felix, his wife and their young daughter, were visiting his parents in Kansas City. Plaintiff, earlier in his career, had performed in Kansas City and he and Felix Payne had been good friends for some years and plaintiff, on December 22, 1945, went to Kansas City to visit his friend Felix.

On the night of December 22d, defendants were conducting a dance at the Pla-Mor Ballroom. The music for the dance was furnished by the orchestra of Lionel Hampton, a colored man, and also of some note as an orchestra leader. Plaintiff had known Hampton for about 10 years and saw him in the afternoon of December 22d in the restaurant of Street's Hotel, Kansas City. Hampton invited plaintiff and Felix Payne to visit him and his orchestra at the Pla-Mor Ballroom that evening. Plaintiff said to Hampton, "If you will make preparations for us to come we will", and Hampton said that he would see the manager of the ballroom "and make preparation for you to come out." And Hampton did speak to the manager about this visit some two hours before plaintiff and Payne arrived at the building where the dance was being held.

According to plaintiff's case he and Payne arrived at the ballroom building entrance about 10:45 p.m., about 15 minutes before an intermission period. Both were sober; neither had had a drink.

Plaintiff purchased two tickets, $ 1.50 each. He said it was customary for such visitors as he and Payne to purchase tickets; that such was a token contribution to the orchestra where the pay was affected by the gate receipts. Plaintiff and Payne proceeded towards the inner lobby. As they left the ticket booth the cashier noticed their color; rang a buzzer for the doorman and told him to stop them. Defendants' manager, W. H. Wittig, appeared, took the two tickets from plaintiff's hand, "snatched" them, according to plaintiff, and delivered $ 3.00 to Payne. About that time W. E. Todd, a member of the Kansas City police, but who "was employed out at the Pla-Mor" of an evening until about 12 o'clock, came up to the place where plaintiff, Payne, and Wittig were, plaintiff and Wittig being engaged in conversation. Plaintiff was endeavoring to explain why he and Payne were there. When Todd came up he took over; told plaintiff and Payne that negroes were not allowed there; refused to listen to any explanation; Wittig and Todd made no attempt to identify plaintiff or permit him to explain; they did not personally know plaintiff and Payne, but both knew that plaintiff had been invited by Hampton; both refused to heed any effort plaintiff made to identify himself or explain. And according to plaintiff's case Todd, without excuse or justification, beat him over the head with a pistol; knocked him down and inflicted upon his head severe injuries.

On the other hand, according to defendants' case, plaintiff and Payne were drunk; made no attempt to identify themselves or explain why they were there, but that plaintiff expressed the determination to "go up to the ballroom regardless of who said he could or who said he couldn't." And according to defendants' case Wittig...