Collette v. Rebori

• Decision Date: 18 October 1904
• Citation: 82 S.W. 552,107 Mo. App. 711
• Parties: COLLETTE v. REBORI et al.
• Court: Missouri Court of Appeals

82 S.W. 552

107 Mo. App. 711

COLLETTE v. REBORI et al.

St. Louis Court of Appeals. Missouri.

October 18, 1904.

ASSAULT BY SERVANT — LIABILITY OF MASTER.

1. Defendant is not liable for the assault of his collecting agent on plaintiff, where the plaintiff went to defendant's store to amicably settle a disputed account, and made known this purpose, and the agent did not take up the settlement of the account, but merely said plaintiff was a liar if he said he had paid the bill, and without provocation assaulted and beat him;

the agent in so doing not being about defendant's business, and not acting within the scope of any authority delegated to him by defendant.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Walter C. Collette against A. Rebori and another. Judgment for defendants, and plaintiff appeals. Affirmed.

T. J. Delaney, for appellant. Vaughan & Coltrane, for respondents.

Statement.

BLAND, P. J.

Omitting caption and the specifications of the injury and damages, the petition on which the cause was tried is as follows: "Plaintiff, by leave of court, files this, his amended petition, and for his cause of action states that on the 22d day of December, 1902, the defendant A. Rebori was engaged in the fruit business in Springfield, Missouri, under the name of the A. Rebori Fruit Company, and was the manager of said business; that on said day the defendant Charles Sansone was the servant and agent of said A. Rebori, and in his employ as such, and that amongst other duties devolving upon said Sansone was the collection and settlement of debts due said A. Rebori; that on said day the plaintiff herein, who had theretofore as a merchant had dealings with the said A. Rebori Fruit Company, doing business as aforesaid, called at the office of the said A. Rebori to adjust with said A. Rebori, by and through his said agent and servant, Sansone, a disputed account, which said A. Rebori by and through his agent and servant Sansone claimed was due and unpaid, and payment of which was claimed by plaintiff herein; that in the discussion of said account, and in the presence of the said A. Rebori, the said Sansone cursed and abused this plaintiff without remonstrance from said A. Rebori; that thereupon plaintiff left the store of said A. Rebori, but returned for the purpose of adjusting said account, and plaintiff states that while he was in the store of A. Rebori, where he had a right to be for the adjustment of said account, and while engaged in conversation with the said Sansone, as the agent and servant of the said A. Rebori, looking to the adjustment of said account, and in the presence and hearing of the said A. Rebori, who had theretofore heard said Sansone curse and abuse this plaintiff, the said Sansone cursed and abused plaintiff, and wantonly and brutally and without any cause whatever struck this plaintiff, knocking out several teeth, and knocked plaintiff down and against some object, thereby dislocating, fracturing, and injuring the hip of this plaintiff. Plaintiff says that, notwithstanding the premises, the said A. Rebori, having theretofore countenanced said assault, retained and still retains the said Sansone in his employment." Plaintiff's evidence shows that in 1902 defendant Rebori was a fruit dealer in the city of Springfield, Mo., and had in his employ as collecting agent, etc., Charles Sansone; that plaintiff was at the same time engaged in keeping a grocery store in said city, and made monthly purchases of fruit from Rebori; that Rebori's bookkeeper made a mistake by charging a bill of $2.25 for November purchases made by plaintiff to one Costello instead of to plaintiff. After the payment by plaintiff of his December bill, as rendered by Rebori, the error of the bookkeeper was discovered, and Sansone wrote a note to plaintiff, asking him to call at Rebori's place of business and settle his November account. On December 22d the plaintiff, in response to the note, called at Rebori's place of business. He was unacquainted with either Rebori or Sansone, and addressed the latter as Rebori, taking him to be Rebori. He claimed to Sansone that his bills were paid, and exhibited a receipted bill for his December purchases, and said to Sansone, "I have a receipt for this." Sansone became angry, called plaintiff a liar, and applied other opprobrious epithets to him, ending by ordering him out of the house. Rebori was near by, and heard what was said, but said nothing himself. Plaintiff went out, walked a short distance away, reflected over what had transpired, and concluded he would go back, and see if he could not make an amicable settlement of the matter in dispute. As to what transpired on his return he testified as follows: "I went back, and I walked up to him with the bill in my hand again, and I said to him. I says: `You abused me scandalously for nothing, and I don't like it, and you wouldn't like to be abused that way either;' but, I says, `let's talk this matter over, and get this matter settled, and perhaps we can come to some conclusion, and you can reconsider that matter, and it will be all right'—trying to get a settlement of this matter. Q. What did you have in your hand at that time? A. I had the bill in one hand and nothing in the other. Q. What did he do when you said that? A. He listened to me, and he said, `Wait a moment.' Then, supposing he was going about his business, and when he got leisure he would talk to me as I had asked him to, he went into the back part of the room, and he just simply turned around, and I placed my hand upon something there, I think it was a show case, this arm (right arm) that way, and held the bill in the other hand still. Q. Your right arm was resting on something? A. My right arm was on that object there, and the bill in this hand, when he came back. He came back suddenly, and snapped his fists down quickly, and says, `If you say you paid that bill you are a liar.' I still remonstrated with the man, trying to get a settlement. I didn't call any harsh names even, and a few more words passed between us that way, and he came at me with his hands clenched, and he come sparring at me that way. When he did that, I threw up my hands to protect myself. I threw my hands up, and I got a sprain on that wrist. Q. He hit you first on that wrist? A. Yes, sir; he hit me there, or I threw it up against his. I didn't strike at all. And I was running back that way, and he gave me a blow, and I staggered back and fell. Q. He struck you in the mouth with his fist? A. Yes, sir. I was leaning back, thinking I would ward off the blow. The result was that I wheeled around and fell. Q. What was the effect on your mouth and lips, if any? A. It cut it open so that the doctor sewed it up and put two or three stitches in it, and it loosened two or three teeth there so at that time I could have pulled them out. Q. What was the effect of that blow? A. I wheeled and went around and fell, and I couldn't get up again. Q. What made you fall. A. That blow made me fall." Plaintiff also testified that Rebori was in the room when Sansone made the assault. One of the witnesses, however, testified that Rebori was not in the store, but outside...