Cook v. Housewirth

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Cook v. Housewirth, 254 S.W.2d 283 (Mo. App. 1953)
• Decision Date: 12 January 1953
• Docket Number: No. 21810,21810
• Parties: COOK v. HOUSEWIRTH et al.

Page 283

254 S.W.2d 283

COOK v. HOUSEWIRTH et al.

No. 21810.

Kansas City Court of Appeals, Missouri.

Jan. 12, 1953.

J. V. Gaddy, St. Joseph, for appellants.

F. J. Frankenhoff, Price Shoemaker and Elmer E. Reital, St. Joseph, for respondent.

SPERRY, Commissioner.

Plaintiff, Earnest L. Cook, sued Ernest W. and Iva V. Housewirth, husband and wife, and William Markham, defendants, for injuries received in a tavern owned and operated by the Housewirths. From a verdict and judgment in favor of plaintiff, against all defendants, in the amount of $650 actual, and $6225, punitive damages, defendants appeal.

The Housewirths owned and operated a tavern at St. Joseph, Missouri, known as the 'Tower.' Mr. Markham was employed as manager. Plaintiff was employed by a taxicab company. The assault occurred about midnight of April 15, 1951, and as a result of injuries received by plaintiff, he is totally blind in one eye.

Defendants urge that:

a. There is no evidence justifying submission of the issue of punitive damages;

b. The amount of the verdict for punitive damages is so excessive as to indicate the jury's bias and prejudice against defendants.

Plaintiff testified to the effect that he was, at the time this incident occurred, employed as a dispatcher for a taxicab company; that he had never previously visited defendants' place of business; that he entered the 'Tower' for the purpose of delivering a message to one Myrtle Majewski, a patron of defendants; that Mr. Housewirth stood at the front of the place of business to collect 'cover' charges from patrons; that plaintiff told him he wished to deliver a message to a patron and was permitted to enter without charge; that he saw Majewski seated at a table with two men; that he sat down at the table and told her that her child was ill, that she was wanted at home; that when he arose from the table another man shoved his chair back and stood up; that Housewirth appeared and asked if there was trouble; that, upon being informed there was no trouble, Housewirth left; that plaintiff and Majewski walked to the front of the building and Majewski's sister, Snipes, was called to the telephone; that Majewski took the telephone and talked, then handed it to Snipes; that plaintiff and Majewski started toward the door, to leave, whereupon he was struck in the back of the head by Housewirth; that, in falling forward, he pushed Majewski down and fell on her; that Housewirth seized his head and neck under one arm, choked him, and hit him in the mouth with his fist; that Markham appeared and squirted ammonia water in his face and eyes from a seltzer bottle; that he did not actually see the instrumentality; that about all he saw was the 'squirt'; that his face was badly burned and the sight of his right eye was completely destroyed. It was shown that plaintiff had been twice convicted, once for petit larceny and once for grand larceny. Plaintiff had kept company with Myrtle Majewski for some time and lived at the home of her parents, where she also lived a part of the time.

Majewski testified to the effect that she arrived at the Tower about midnight, alone; that plaintiff came a few minutes later and sat at a table with her and two other men; that there was no disturbance but that Housewirth came to the table and inquired if there had been a disturbance; that she was going to call home; that there was a telephone call for her sister and she went to answer it; that plaintiff followed her; that she was going to leave because her little girl was ill; that she and plaintiff stood at the end of the bar, talking; that Housewirth came up behind plaintiff and said something; that both she and plaintiff turned around, then plaintiff fell against her, knocking her down; that she was unconscious for a time.

Julia Snipes, sister of Majewski, stated that she arrived at the place after midnight; that she had a telephone call and her sister handed her the instrument; that she heard a commotion, turned, and that her sister was on the floor with plaintiff on top of her, by the door; that Housewirth had plaintiff around the neck and struck him in the mouth; that she went around to aid her sister and ammonia was thrown in her eyes; that she could not see anything; that she, her sister, and plaintiff went to the sheriff's office, at the jail and, later, to the hospital; that she had sued defendants for damages growing out of the assault.

Mr. Housewirth stated, in effect, that there was a disturbance at plaintiff's table and he asked plaintiff about it; that plaintiff was urging Majewski to leave with him and she refused, saying that he would beat her up again; that one Spurgeon was at the table and plaintiff and Spurgeon had had an argument over Majewski; that, thereafter, near the door and telephone, plaintiff seized Majewski by the shoulders and pushed her backward out of the door; that she fell on her back with plaintiff on top of her; that he, Housewirth, seized plaintiff around the neck and pulled him off of Majewski but did not strike him; that he did not see Markham come up but smelled ammonia later; that he bought, and kept on the back bar, a small water pistol filled with ammonia water, to be used to quell disturbances that got out of hand; that Mrs. Housewirth was also present, collecting cover charges; that he seized plaintiff in order to protect Mrs....