Eckner v. Western Hair & Beauty Supply Co.
| Decision Date | 02 June 1942 |
| Parties | PATRICIA ECKNER, RESPONDENT, v. WESTERN HAIR AND BEAUTY SUPPLY COMPANY, A CORPORATION, APPELLANT |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled June 19, 1942.
Appeal from Circuit Court of the City of St. Louis.--Hon. F. E Williams, Judge.
AFFIRMED ON REMITTITUR.
Edward M. Radloff for respondent.
(1) Granting a continuance a matter within discretion of trial court. Petersen v. Railway, 111 S.W. 37, 211 Mo 498, 516. (2) Trial court did not err in not striking testimony that was not prejudicial. Anderson v. Volmer, 83 Mo. 403; City Water Co. of Sedalia v. Hunter, 319 Mo. 1240, 6 S.W.2d 565; Farrells Administrator v. Brennan's Administratrix, 32 Mo. 328, 333; Findley v. Johnson, 142 S.W.2d 61. (3) Instruction should not be too general and should be in language so plain that no question can arise as to its meaning. Bernase v. P. A. Starck Piano Co. (Mo. App.), 296 S.W. 239; State v. Shain, 341 Mo. 733, 108 S.W.2d 351, 356; Jones v. West Side Buick Co., 231 Mo.App. 187, 93 S.W.2d 1083, 1089; Morris v. Morris, 28 Mo. 114; Wilborn v. Des Loge (Mo. App.), 268 S.W. 655; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593. (4) Amount of punitive damages must be left largely to jury. Custer v. Kroeger, 209 Mo.App. 450, 240 S.W. 241; McGill v. Walnut Realty Co., 235 Mo.App. 874, 148 S.W.2d 131. (5) On demurrer to evidence, defendant admits and court must accept as true all evidence favorable to plaintiff and all reasonable inferences that may be drawn therefrom and all unfavorable evidence or inferences must be disregarded. Andruss v. Business Men's Acc. Ass'n, 283 Mo. 422, 223 S.W. 70; Moore v. Leach et al. (Mo. App.), 14 S.W.2d 21, 23; Negbauer v. Fogel Construction Co., 224 Mo.App. 1134, 58 S.W.2d 346, l. c. 352; Cantrell v. Knight (Mo. App.), 72 S.W.2d 196, 199; Darlington v. Mo. Ry. Co., 147 S.W. 1052, 243 Mo. 224; Federal Cold Storage Co. v. Pupilo (Mo.), 139 S.W.2d 996; State v. Gomer et al. (Mo.), 101 S.W.2d 57; Lampe v. Franklin American Trust Co. et al. (Mo.), 96 S.W.2d 711, 723; O'Reilly v. O'Reilly et al. (Mo. App.), 157 S.W.2d 220, 222; Stahl v. St. Louis-San Francisco (Mo.), 287 S.W. 628; Guthrie v. Fields (Mo. App.), 299 S.W. 141; Foy v. United Railways Co. (Mo. App.), 226 S.W. 325, 326; St. Louis & S.W. Railway Co. v. Smith, 71 Ark. 290, 73 S.W.2d 101.
L. J. Reidel and J. A. Gochenour for defendant.
Mo. Stat. Anno., sec. 941, p. 1215; Tunstall v. Hamilton, 8 Mo. 500; De Mass v. Ry. Co., 296 Mo. 526, 246 S.W. 566; Peterson v. Ry., 211 Mo. 498, 111 S.W. 37; Anderson v. Volmer, 83 Mo. 403; City Water Co. of Sedalia v. Hunter, 319 Mo. 1240, 6 S.W.2d 565; Farrell's Administrator v. Brennan's Admin'x., 32 Mo. 328, 333, 82 Am. Loc. 173; Finley v. Johnson, 142 S.W.2d 61; Vetto v. Johnson, 43 Mo.App. 342; Clark v. Metropolitan Street Ry. Co., 166 Mo.App. 342, 148 S.W. 208; Maughiman et al. v. National Ben. Franklin Fire Ins. Co., 196 Mo.App. 367, 194 S.W. 893; Kirkpatrick v. Wells, 319 Mo. 1040, 6 S.W.2d 591; Bernase v. P. A. Starck Piano Co., 296 S.W. 239; E. R. Darlington Co. v. Mo. Ry. Co., 243 Mo. 224, 147 S.W. 1052; Federal Cold Storage Co. v. Pupilo, 139 S.W.2d 996; State v. Gilmer et al., 101 S.W.2d 57; Lampe v. Franklin American Trust Co. et al., 96 S.W.2d 711; St. Louis & S.W. Ry. v. Smith, 71 Ark. 290, 73 S.W.2d 101.
This is a suit for damages, both actual and punitive, brought by respondent, as plaintiff, against appellant, as a defendant. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against said defendant in the sum of $ 10 actual damages and $ 800 punitive damages on count one of plaintiff's petition, and $ 500 actual damages and $ 500 punitive damages on count two of said petition. Defendant duly appealed.
In her original petition plaintiff named as defendants Western Hair Goods Company and Arthur Silvers. Thereafter, plaintiff filed an amended petition in which Western Hair and Beauty Supply Company, appellant herein, was added and joined as a defendant.
In the first count of plaintiff's said amended petition she alleged that on June 4, 1940, defendants Western Hair Goods Company and Western Hair and Beauty Supply Company, by and through their agent, servant and employee Arthur Silvers, the other defendant herein, acting within the scope of his authority entered plaintiff's place of business in the City of Richmond Heights, Missouri, and, after demanding payment for merchandise purchased by plaintiff from defendants Western Hair Goods Company and Western Hair and Beauty Supply Company, wilfully and wantonly diverted to their own use a Queens Hair Clipper of the value of $ 10; and that when plaintiff attempted to restrain defendant Silvers from taking her property, he, in the presence of plaintiff's employees and customers, without cause or reason, wilfully and wantonly pushed and shoved her about thereby directly causing her to sustain injuries and damages; that on said 4th day of June, 1940, plaintiff was the owner of said Queens Hair Clipper; that defendants wilfully took possession thereof and converted the same to their own use, whereby plaintiff sustained damage for said wrongful taking and detention. Plaintiff prayed judgment for $ 10 actual and $ 2500 punitive damages on the first count.
In the second count of her amended petition plaintiff reiterated the allegations of the first count, and further alleged that, as a direct and proximate result of "the aforesaid wilful, malicious and wanton assault of the defendant Arthur Silvers, acting individually and as agent, servant and employee of the defendants Western Hair Goods Company and Western Hair & Beauty Supply Company, within the scope of his authority, she sustained injuries to her right arm, serious and permanent nervous shock to her entire nervous system and was greatly humiliated in the presence of her customers and employees." Plaintiff prayed for $ 2500 actual and $ 5000 punitive damages on the second count of said petition.
Defendants filed an answer containing a general denial as to each of the two counts of plaintiff's petition.
It appears that plaintiff dismissed the case as to defendant Western Hair Goods Company at a trial on February 6, 1941, following which there was a verdict for plaintiff against defendant Western Hair and Beauty Supply Company. Thereafter the trial court sustained said defendant's and plaintiff's motions for a new trial, and there was a second trial at which plaintiff dismissed as to Silvers. Then followed the verdict and judgment from which this appeal was taken as heretofore stated.
Defendant contends that the trial court erred in refusing to grant it a continuance on the day of the trial when plaintiff dismissed her case as to Arthur Silvers, leaving it as the sole defendant in the case. It is argued that the dismissal as to defendant Silvers constituted an amendment of substance and that the court should have granted a continuance in accordance with the statute, Section 1092, Revised Statutes of Missouri, 1939.
The application for the continuance was made orally prior to the commencement of the trial. The only reasons given for requesting the continuance were that the defendant was surprised when plaintiff dismissed as to defendant Silvers; that when it announced ready for trial, it was under the impression that the co-defendant Silvers, who was alleged to have actually committed the tort in question, would be in the case. Defendant argues that it should have been granted a continuance so that it could have made other arrangements for defense if deemed necessary after fully analyzing the situation created by the dismissal of plaintiff's case as to Silvers.
The granting or refusal of an application for continuance is a matter within the sound discretion of the trial court. It is sufficient to say that there is no showing whatsoever in this record to indicate that the court abused its discretion in refusing the continuance, or that defendant was in anywise prejudiced thereby. This point is ruled against defendant. [Hall v. Williams, 330 Mo. 473, 50 S.W.2d 138; Peterson v. Metropolitan St. Ry. Co., 211 Mo. 498, 111 S.W. 37; Jacobbson v. Graham Ship-by-Truck Co. (Mo. App.), 61 S.W.2d 401.]
Defendant contends that the court erred in refusing to give its demurrers to the evidence offered at the close of plaintiff's case and at the close of the whole case. As one of the grounds for this contention, it is argued that plaintiff failed to prove that Silvers, who was alleged to have committed the assault on plaintiff, was an employee or agent of defendant Western Hair and Beauty Supply Company; that the most that could be said is that plaintiff probably made out a prima facie case against the Western Hair Goods Company, which company was originally a defendant in the case.
Plaintiff testified that in April, 1940, she purchased the beauty shop business located at 7370 Dale Avenue, Richmond Heights, and that Silvers was introduced to her at that time as a representative of the Western Hair and Beauty Supply Company by Mrs. Lucich, the former owner of the shop; that Silvers had sold quite a bit of supplies to the shop and the fixtures were from the company by whom he was employed; that Silvers solicited plaintiff's business at the time she purchased the shop, and made up a list of what she needed; that she placed an order that was delivered by Silvers the next day; that Silvers said that the former owner of the shop had an open account with the company and that plaintiff could have one also, and that she could have until the 10th of June to pay her bill which amounted to $ 9.38 that thereafter,...
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Hayes v. Jenkins, 7845
... ... Knight, Mo.App., 72 S.W.2d 196, 199; Eckner v. Western Hair & Beauty Supply Co., 236 Mo.App. 988, 162 ... ...