Friedman v. Underwood

• Decision Date: 05 March 1923
• Docket Number: No. 23475.,23475.
• Parties: FRIEDMAN v. UNDERWOOD et al.
• Court: Missouri Supreme Court

249 S.W. 64

FRIEDMAN v. UNDERWOOD et al.

No. 23475.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from St. Louis Circuit Court; Franklin Killer, Judge.

Action by Joseph Friedman, by his next friend, Isadore Friedman, against John Underwood and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Fred Weissman, of St. Louis, for appellant.

Smith & Pearcy, of St. Louis, for respondent Maryland Hotel Company.

SMALL, C. I.

Appeal from the circuit court of the city of St. Louis. Suit for damages for personal assault, alleged to have been committed upon plaintiff, a messenger boy for the Western `Union Telegraph Company, by defendant John. Underwood, a bell boy for the defendant Maryland Hotel Company.

The evidence of plaintiff tended to show that he had a message to deliver to a guest at the hotel, and that when he endeavored to deliver it, in a peaceful manner, he was assaulted by defendant Underwood, who was In charge of the bell boys and the proper person to leave the message with, and was injured over the eye.

The defendants' evidence tended to show, that plaintiff violated the rules of the hotel by first going upstairs and endeavoring to deliver the message Personally to the guest, but, failing to find him, he returned downstairs, became insolent to the defendant Underwood, without just cause, and threw the message down on the counter in a rage in such manner that it fell or the floor, and at the same time he talked in a loud and boisterous manner, cursing and calling the said Underwood a vile name in the presence of hotel guests in the lobby, and invited said Underwood to come oat and fight. There was also evidence, that it was not the duty of defendant Underwood to eject unruly persons from the hotel, and that he was provoked to strike the plaintiff over the eye, after plaintiff struck him first, and by the vile name he applied to him personally.

The hotel clerk testified, that his attention was attracted to the boys by the fight, and he called to "Johny"—defendant Underwood—to "Stop that! Stop that!" And at no time authorized or told him to put the plaintiff out of the hotel. "Johny" testified that the clerk told him to stop plaintiff from cursing, and that he started to put plaintiff out because plaintiff cursed him and called him the vile name and challenged him to come out and fight.

The verdict was for the defendants, and the plaintiff appealed.

II. The court gave four instructions for the plaintiff, and five for the defendant hotel company. In his motion for new trial, plaintiff only complains of instructions Nos. 5, 6, 7, and 8, given for said defendant. We, therefore, cannot consider errors alleged as to any other instructions complained of on this appeal. Hoke v. Central Township, etc., Club, 194 Mo. 576, 91 S. W. 394.

III. As to said instruction No. 5: The contention of appellant is that said instruction is erroneous, because it requires the jury to find that defendant Underwood "acted within the scope of his authority" in striking plaintiff, before there could be a verdict against the hotel company. But plaintiff's instructions ...