Gray v. Phillips Bldg. Co.

• Decision Date: 13 June 1932
• Docket Number: No. 17540.,17540.
• Parties: GRAY v. PHILLIPS BLDG. CO. et al.
• Court: Missouri Court of Appeals

51 S.W.2d 181

GRAY v. PHILLIPS BLDG. CO. et al.

No. 17540.

Kansas City Court of Appeals. Missouri.

June 13, 1932.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by A. L. Gray against the Phillips Building Company and another. Judgment for the plaintiff, and the defendants appeal.

Affirmed on condition of remittitur.

Henry S. Conrad, L. E. Durham, Hale Houts, and Spurgeon L. Smithson, all of Kansas City, for appellant Phillips Bldg. Co.

R. T. Stephens, of Excelsior Springs, for appellant E. R. Williams.

S. P. Forsee, W. C. Forsee, S. P. Forsee, Jr., and James P. McGuire, all of Kansas City, for respondent.

BOYER, C.

This is an action in damages for alleged wrongful assault. The suit was instituted in the circuit court of Jackson county, Mo., on June 6, 1929. The appellants and one George Stewart were named as defendants. There was no service obtained on Stewart, and at the trial the cause was dismissed as to him. The trial proceeded against the two appealing defendants.

The petition states the Phillips Building Company is a corporation engaged in the construction of apartment houses and hotel buildings in Kansas City, Mo.; that on or about May 9, 1929, plaintiff was in the employ of said corporation, and was working on a building at Forty-Eighth street and Roanoke road in said city; that at said time and place one "Pete" Williams was in the employ of said corporation as foreman, and that plaintiff was working under said foreman; that George Stewart was a carpenter working at said time and place for said corporation; that said Williams, while engaged in the business for which he was employed, and while in a discussion with plaintiff in reference to his employment with said corporation, in conjunction with said George Stewart, willfully and maliciously assaulted, kicked, and beat plaintiff, and thereby fractured plaintiff's ribs and wrists, and wounded, lacerated, beat, and bruised plaintiff on the head, arms, legs, body, back, and abdomen, and seriously and permanently injured plaintiff; that plaintiff has expended for medical attention the sum of $50. Judgment is asked in the sum of $5,000 actual, and $5,000 punitive, damages.

The appealing defendants filed separate answers. Each contained a general denial, and as affirmative defense each answer stated that, if the defendant E. R. Williams "struck the plaintiff at the time and place in plaintiff's petition mentioned, this defendant denies that the same was wrongfully done"; that at said time and place plaintiff first wrongfully assaulted and struck defendant Williams, and that thereupon defendant Williams defended himself; and, if plaintiff sustained any injuries thereby, same were occasioned by plaintiff's act in first assaulting Williams.

Upon these pleadings the cause was tried to the court and jury, resulting in a verdict and judgment for plaintiff in the sum of $1,000 compensatory and $500 punitive damages. Separate motions for a new trial and in arrest of judgment were filed on behalf of each defendant, and were overruled. The case is here by appeal.

As disclosed by the record, there is no material conflict in the evidence as to the occurrences leading up to the alleged assault. The facts in this respect are that at the time in question the defendant corporation was completing the construction of a five-story apartment building at Forty-Eighth street and Roanoke road in Kansas City, Mo. Plaintiff was working as a carpenter or cabinet worker finishing the woodwork and hanging doors on the fifth floor. Defendant Williams was foreman of the carpenters. Plaintiff and Williams had been on friendly terms up to the time in question, and Williams had employed plaintiff at similar work at various times in other construction operations. On the day in question, Williams came to plaintiff while the latter was working on the fifth floor, and told him it had been reported to him (Williams) that plaintiff had been telling around among the other carpenters that he (plaintiff) was receiving 90 cents an hour wages, whereas he was receiving only 85 cents, and Williams asked plaintiff for an explanation. Plaintiff denied he had made such statements, and expressed sorrow if he had been the cause of any disturbance relative to the rumor. Plaintiff further asked that he be told the names of the persons who had made such reports, and Williams declined to give the names. Plaintiff insisted that he be allowed to confront Williams' informants.

At last Williams directed plaintiff to accompany him, which he did, following Williams down to the fourth floor where two other carpenters, George Stewart and Walter George, were at work. Arriving there, Williams asked Stewart if plaintiff had stated to him that he (plaintiff) was receiving 90 cents an hour, and Stewart said plaintiff had told him so. There is some slight evidence in the record that Walter George affirmed Stewart's statement. Thereupon plaintiff called Stewart a qualified liar, and Stewart and plaintiff approached each other in a belligerent manner. It is undisputed that Stewart was armed with an iron brace. According to plaintiff's evidence, he (plaintiff) was unarmed, but some of defendant's witnesses stated, more or less indefinitely, that plaintiff had in his hand a large screwdriver. From this point the evidence is more or less conflicting.

Plaintiff testified Stewart struck the first blow, hitting plaintiff on the side of the head with the handle of the brace; that Williams, from a position somewhat to the side and rear of plaintiff, then struck plaintiff on the side of the head, although plaintiff had neither struck nor touched Williams; that plaintiff then raised his hands to ward off the blows; and that Stewart and Williams continued to strike him, and the affair finally developed into an encounter between plaintiff and Williams wherein plaintiff was endeavoring to protect himself until the two were separated.

By the testimony of Williams and other fellow employees of plaintiff, and one electrical worker not in the employ of defendant corporation, it was stated that, as plaintiff and Stewart were approaching each other and about to join in combat, Williams stepped in between them and endeavored to separate them and push them apart, and while so engaged Williams was struck a glancing blow by Stewart's brace — a blow aimed at plaintiff; that Williams was struck by plaintiff's fists; that, after being struck by plaintiff, and not until then, Williams joined in the combat with plaintiff, and the two fought each other, with Stewart out of it and to one side, until separated by others present.

It is undisputed that, after plaintiff and Williams were separated, Williams discharged plaintiff and furnished him his time slip. Plaintiff then gathered together his tools and left the building. It is not disputed that plaintiff received numerous abrasions and bruises; that he sustained a fracture of one rib and a fracture of a bone in his left wrist, without displacement as to either fracture. There is some evidence that the fracture of the wrist showed some crepitation at the date of the trial. There is also evidence that plaintiff went to work within ten days thereafter, but was unable to do heavy work.

Williams came out of the mêlée with two teeth loosened and a fractured bone in one of his hands. Williams and another witness testified some of the workmen had reported to Williams that plaintiff had stated to them that he (plaintiff) was getting 90 cents an hour wages. It is not disputed that plaintiff denied he had made any such statement.

The record discloses that the conversation leading up to and in connection with the altercation was liberally interspersed with more or less lurid and picturesque profanity, to say nothing of a liberal amount of vulgarity. But in this plaintiff seems to have been able to hold his own. All of the foregoing follows closely appellants' statement of the facts. The testimony is undisputed that Williams told plaintiff that he did not want such stories going around within his organization, as it would cause dissatisfaction, and this was the reason for taking the matter up with plaintiff. Relative to the circumstances of Williams taking plaintiff before Stewart and George, Williams testified in a deposition previously taken:

"He said he never told anybody that and I went to Stewart and George and I asked them if he told them that and they said he had, that was before I talked to Gray, and then I went to Gray and asked him why he was telling that around and he said he was not telling it. I told him I was going to let him go, I didn't want anything going on around the building like that, in this organization. He denied it and apologized, he said he never had said it and that there was not a word of truth in it. Then in order to clear the matter up I took him up before these two fellows and they said he told it." "Did you take him down there to these two fellows? A. I never took hold of him and led him. He followed along. I didn't drag him down there."

"Q. Was your testimony when you gave this deposition true, `I took him up before these two fellows?' Was that true when you gave it? A. I might have possibly walked in front of him but I didn't drag him or anything like that. He went of his own accord. It was his suggestion."

Alleged errors are treated in brief and argument under ten points. It is first urged that the court erred in not directing a verdict for defendant Phillips Building Company at the close of the evidence. In considering a demurrer, it is proper to have in mind the well-established rule that plaintiff's evidence must be accepted as true, and that he is entitled to the benefit of all reasonable inferences to be drawn from defendant's evidence.

As we view the evidence, two opposing theories are presented. By plaintiff's evidence Williams directed plaintiff to accompany him to the presence of the...