Crum v. Walker, No. 47708

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSMITH; All Justices concur, except HALE
Citation44 N.W.2d 701,241 Iowa 1173
Docket NumberNo. 47708
Decision Date14 November 1950
PartiesCRUM v. WALKER et al.

Page 701

44 N.W.2d 701
241 Iowa 1173
CRUM

v.
WALKER et al.
No. 47708.
Supreme Court of Iowa.
Nov. 14, 1950.

Vernon P. Long, and Richards & Richards, all of Red Oak, for appellants.

Earl C. Fishbaugh, Jr., of Shenandoah, and Billings & Swanson, of Red Oak, for appellee.

SMITH, Justice.

Plaintiff, a cafe employee from Shenandoah, Iowa, shortly after midnight, April 26, 1946, while in Red Oak, Iowa, entered Dreamland, a restaurant owned and operated by defendants Charles O. and Margaret Walker. He was accompanied by Dale Irwin. They sat on lunch counter stools and were waited on by defendant, Harry Walker, son of his co-defendants. The alleged assault and battery was committed by Harry Walker who struck plaintiff on the head with a 7-Up bottle.

Plaintiff brought this action and was awarded by the jury actual damages in the sum of $1500 and exemplary damages $2500, the exact amounts prayed for. Defendants appeal.

Page 702

Practically all witnesses on both sides testify defendant Harry Walker struck plaintiff on the head with a bottle of 7-Up. Plaintiff's testimony was to the effect that just before the assault [241 Iowa 1175] he looked up from his sandwich and saw Harry staring at him 'pretty hard, so I just looked back at him for a couple of minutes. He came back over and said I don't like the way you look at me. I told him I couldn't help how I look.' Harry then struck him with the bottle.

His testimony is substantially corroborated by his companion, Irwin, and witnesses Jones, Allely, and Betty Hood. Allely, who sat at the same counter with plaintiff with two empty seats between them says: 'I was sitting there and looked up and saw that Walker was staring at Crum and Crum was staring back at Walker. Then Walker walked back there to Crum and said something to the effect 'Don't look at me like that, I am a big man.' Crum then made the statement 'I can't help how I look.' Then Harry Walker took the bottle of 7-Up that was sitting in front of Crum and hit him over the head with it. * * * Harry Walker appeared to be very angry. He said nothing at the time he hit Crum. * * * the bottle was broken and the contents were all over Crum. * * * there was no blood for a second or two and then it spilled all at once * * *. Crum fell off the stool * * * appeared dazed.'

Betty Hood's account is not materially different. She says 'There was no intervening stool between me and where Crum sat.' She says when plaintiff came in and greeted Harry as 'Hi, Joe or Hi, something like that,' Harry replied, 'If you don't know my name you don't need to speak to me.' Her account of the staring episode gives plaintiff's reply as 'Well, God gave me two good eyes and I could look at anyone I pleased.' She adds 'The first thing I knew after that, Harry had hit him with the 7-Up bottle.'

Defendants and their witness, Finchem, an employee, identify plaintiff as the one who was allergic to being stared at and Harry as the one asserting his God-given right to stare where he pleased, an addition perhaps to the 'Four Freedoms.'

Defendants also testify that before he was struck plaintiff started over the counter after Harry, implying Harry struck in self-defense. They also say plaintiff and Irwin were drunk and loud and boisterous from the time they came into the place and were using profane and obscene language, particularly offensive[241 Iowa 1176] to ladies. The one lady who testified, other than defendant, Margaret, denies all this testimony as do plaintiff's other witnesses.

All witnesses seem to agree there was some slight earlier disagreement over the making of change when plaintiff paid his bill after being served and before the 'staring' started the hostilities. Apparently this was amicably settled and had no connection with the assault.

There is also dispute between the respective camps of witnesses as to whether the bottle broke when it struck plaintiff's head and whether plaintiff fell to the floor.

One Sadler, a self-styled 'merchant policeman' was a witness for defendants. He was in Dreamland 'at the time of the episode between Ray Crum and Harry Walker.' However he was talking to defendant Charles O. Walker and says he did not see the blow struck. 'I was not paying attention to what was going on. After Crum got hit, Harry Walker told me to take Mr. Crum outside and I proceeded to do it.' The witness is very vague as to what Crum said but thinks it was something about goint back and killing Harry.

Evidently this peace officer (if that is what a 'merchant policeman' is) did not hear any such ribald talk and disorderliness on the part of plaintiff or see any threatened attack by him on Harry as is described by defendants and Finchem. Nor, so far as the Record shows, did he arrest Harry. Instead, after the assault, he obeyed the order of the assailant to remove the victim from the room.

Eleven errors are assigned on appeal but they overlap and duplicate and may be discussed under a few propositions. The

Page 703

jury evidently resolved the conflicts in testimony in plaintiff's favor.

I. We mention first the contention that defendants Charles O. and Margaret Walker are not shown liable for their son Harry's conduct, (1) because he was not an employee, or at least (2) because he ceased to be an employee the instant he went beyond the scope of his employment and struck plaintiff. The propositions are properly raised by motions to direct, requests for and objections to instructions and motion for new trial.

[241 Iowa 1177] As to both propositions the decision must be against defendants on the Record. One witness testifies Harry 'was waiting on customers, taking orders, collecting the money, and acting as head check person, and he took the money that was paid to let people in the back room. The door into the back room was unlocked when he rang the buzzer.' This witness had lived in Red Oak practically all her life and says she had been in Dreamland two dozen times. Another witness corroborates this two testifies he had been in the place ten or twelve times. 'Charles Walker was in the back room most of the time, Harry Walker in the front room.'

Defendant Harry himself testifies: 'Ever since Dreamland was constructed in 1941 I have been with my father and mother. During all that time I worked as a member of the family. I wait on tables, permit people to go into the back room, make a charge, following the instructions given me by my father and mother more or less. In other words it was my father and mother I was working for, they designated and told me what I was to do in there and the nature of my duties. * * * I maintain proper order, at times in conjunction with my father, I hereby conduct the business and maintain order.'

He testifies he is...

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9 practice notes
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 30, 1953
    ...and the amount of the exemplary damages must be reasonably proportionate to the compensatory damages awarded. Crum v. Walker, 1950, 241 Iowa 1173, 44 N.W. 2d 701; Shannon v. Gaar, 1944, 234 Iowa 1360, 15 N.W.2d 257; Kinney v. Cady, 1942, 232 Iowa 403, 4 N.W.2d 225; Gregory v. Sorenson, 1932......
  • Bengford v. Carlem Corp., No. 52535
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...by the employer.' (emphasis supplied) Limited as they are to workmen's compensation cases such holdings did not change Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701. 'The payment of or right to collect wages is not essential to the existence of the relationship. It is sufficient if there be ......
  • Bankers Life & Casualty Company v. Kirtley, No. 16930.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 24, 1962
    ...v. Watson Bros. Transp. Co., 244 Iowa 185, 52 N.W.2d 86 (false imprisonment, $6500 actual damages, $6500 punitive); Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701 (assault and battery, $1500 actual damages and $2500 exemplary); Vowles v. Yakish, 191 Iowa 368, 179 N.W. 117, 13 A.L.R. 1132 (def......
  • Wegner v. Delly-Land Delicatessen, Inc., DELLY-LAND
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 12, 1967
    ...to have been committed for the purpose of carrying out such duty. Dilli v. Johnson, 71 App.D.C. 139, 107 F.2d 669; Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701; Schultz v. Purcell's, Inc., 320 Mass. 579, 70 N.E.2d 526; Bryce v. Jackson Diners Corp., 80 R.I. 327, 96 A.2d 637; Anderson v. Cov......
  • Request a trial to view additional results
9 cases
  • Amos v. Prom, Civ. No. 571.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 30, 1953
    ...and the amount of the exemplary damages must be reasonably proportionate to the compensatory damages awarded. Crum v. Walker, 1950, 241 Iowa 1173, 44 N.W. 2d 701; Shannon v. Gaar, 1944, 234 Iowa 1360, 15 N.W.2d 257; Kinney v. Cady, 1942, 232 Iowa 403, 4 N.W.2d 225; Gregory v. Sorenson, 1932......
  • Bengford v. Carlem Corp., No. 52535
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...by the employer.' (emphasis supplied) Limited as they are to workmen's compensation cases such holdings did not change Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701. 'The payment of or right to collect wages is not essential to the existence of the relationship. It is sufficient if there be ......
  • Bankers Life & Casualty Company v. Kirtley, No. 16930.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 24, 1962
    ...v. Watson Bros. Transp. Co., 244 Iowa 185, 52 N.W.2d 86 (false imprisonment, $6500 actual damages, $6500 punitive); Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701 (assault and battery, $1500 actual damages and $2500 exemplary); Vowles v. Yakish, 191 Iowa 368, 179 N.W. 117, 13 A.L.R. 1132 (def......
  • Wegner v. Delly-Land Delicatessen, Inc., DELLY-LAND
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 12, 1967
    ...to have been committed for the purpose of carrying out such duty. Dilli v. Johnson, 71 App.D.C. 139, 107 F.2d 669; Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701; Schultz v. Purcell's, Inc., 320 Mass. 579, 70 N.E.2d 526; Bryce v. Jackson Diners Corp., 80 R.I. 327, 96 A.2d 637; Anderson v. Cov......
  • Request a trial to view additional results

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