Dove v. Lowden
| Citation | 47 F. Supp. 546 |
| Decision Date | 13 October 1942 |
| Docket Number | No. 359.,359. |
| Parties | DOVE v. LOWDEN et al. |
| Court | U.S. District Court — Western District of Missouri |
Clarence C. Chilcott, of Kansas City, Mo., for plaintiff.
Hogsett, Murray, Trippe, Depping & Houts, of Kansas City, Mo., for defendant Frank O. Lowden and others.
This is a suit for damages, tried to the court without the intervention of a jury. The plaintiff seeks recovery for injuries alleged to have accrued to him from an assault claimed to have been committed by servants and employees of defendants on the 6th of July, 1938.
Mr. H. D. King was the manager-chef of a lunchroom operated by the trustees for their company or trust at Pratt, Kansas. Mr. Benjamin R. Shelley at the same time was an inspector whose duty it was to check up on supplies at this and similar places operated by the trustees.
In the late evening, that is, about 11 P. M., or a little later, the said King and Shelley having finished their work for the day returned to the hotel, also operated by the trustees and wherein the lunchroom was located. Both of said parties took seats on the porch of the hotel. They had accompanied other parties to the hotel, not to be guests of the hotel proper but solely of the lunchroom. All had been drinking and were more or less under the influence of intoxicating liquor. Guests accompanying them went to the lunchroom for refreshments, and, by prearrangements, the plaintiff also came to the lunchroom and joined such guests. One Marion June Stamper was one of the guests who accompanied King and Shelley to the hotel. After partaking of refreshments she came out on the porch where the said King and Shelley were seated, and had a controversy with the witness, King. She claimed later that King slapped her. King and Shelley said that King had made a hostile gesture toward Mrs. Stamper, but was restrained by Shelley. All agreed that Mrs. Stamper returned to the lunchroom for the purpose of inviting the plaintiff Dove to accompany her home. She testified that her purpose was to have Dove take her home in her own automobile. It was at her instance that he had brought her car to the hotel. When she left King and Shelley, Mrs. Stamper indicated, as testified by King and Shelley, that she was going to obtain the aid of plaintiff as well as others to avenge the alleged assault upon her. According to her testimony she first went out to her automobile after her encounter with King and then returned by another way to the lunchroom. It was just as convenient for her to have gone back to her automobile by the same way. She did not do that. She and plaintiff left the lunchroom together and came out on the porch where King and Shelley were. There was a quarrel. Shelley and King said that Mrs. Stamper was abusive and that the plaintiff was belligerent. The plaintiff said that a controversy arose but that it was ended, and that he and Mrs. Stamper went to the automobile with the thought that the trouble was over. King and Shelley testified that when Mrs. Stamper and the plaintiff went out on the street, where the automobile was parked, Mrs. Stamper began abusing King and Shelley and that she was supported in that by the plaintiff. This was denied by the plaintiff and Mrs. Stamper. Whatever the provocation may have been, King and Shelley went out on the street and a general affray ensued, in the course of which the plaintiff suffered serious and lasting injuries.
It is the contention of the plaintiff that he was the guest of the trustees for the purpose of taking refreshments at their lunchroom and that he was entitled to the reasonable protection of the trustees, acting through their servants, against assault and injury. It was his contention that the assault upon him was made by the managing-chef of the restaurant or lunchroom and the inspector, both as servants of the trustees.
It is the contention of the trustees that, upon the evidence in the case, the affray wherein the plaintiff received his injuries occurred on the street and that the defendants owed no duty to him at that point. Moreover, it is the further contention that the said King and Shelley were not acting within the scope of their employment and in truth and in fact were not on duty at the time of the alleged assault.
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