Hall v. Martindale

• Decision Date: 08 December 1942
• Docket Number: No. 26089.,26089.
• Citation: 166 S.W.2d 594
• Parties: HALL v. MARTINDALE.
• Court: Missouri Court of Appeals

166 S.W.2d 594

HALL v. MARTINDALE.

No. 26089.

St. Louis Court of Appeals. Missouri.

December 8, 1942.

Rehearing Denied December 22, 1942.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by E. E. Hall against R. E. Martindale, doing business under the style and name of Martindale Mercantile Company, to recover for assault, for slander, and for trespass on plaintiff's property. The jury returned a verdict for plaintiff on the first count for actual and punitive damages, on the second count for actual and punitive damages, and on the third count for actual damages. From an order sustaining defendant's motion for a new trial, the plaintiff appeals.

Order reversed, and cause remanded with directions to reinstate jury's verdict and render judgment thereon.

See, also, Mo.App., 132 S.W.2d 1041; Mo.App., 138 S.W.2d 657.

Walter Wehrle, of Clayton, and Matthes & Weier and R. E. Kleinschmidt, all of Hillsboro, for appellant.

Douglas H. Jones and Edward J. Houlihan, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages in three counts, the first charging defendant with an assault committed upon plaintiff; the second charging defendant with the slander of plaintiff; and the third charging defendant with a trespass upon property of which plaintiff was in lawful possession as a tenant, and with the removal therefrom of certain goods, wares, merchandise, contracts, and written evidences of account with customers, of all of which plaintiff was in lawful possession, and in which he had an alleged special interest of the value of $427.84.

The incidents out of which this lawsuit arose occurred in Crystal City, Missouri, on October 23, 1937.

Plaintiff, E. E. Hall, had been employed since May of that year as a sales agent for defendant, R. E. Martindale, who was engaged in business at the time under the style and name of Martindale Mercantile Company, with his headquarters or principal place of business located in the City of St. Louis.

The work which plaintiff was employed to do consisted of the sale of blankets, sheets, spreads, pillowcases, silverware, carpet sweepers, congoleum rugs, and similar articles of house furnishings, which he sold from door to door in Jefferson and Ste. Genevieve Counties on a credit basis, usually remitting his entire collections to defendant as often as twice a week. Under the arrangement existing between the two, defendant was in turn obligated to pay plaintiff a minimum of three cents a mile and $35 a week, with additional commissions due if the aggregate of the sales made by plaintiff exceeded the amount upon which his basic compensation was computed.

According to the plan of operation entered into between plaintiff and defendant, merchandise belonging to defendant would be consigned and delivered to plaintiff, and pending its sale by plaintiff would be kept in a storeroom which had been rented in Crystal City. Plaintiff actually rented the premises from the owner, although it would appear that part of the rent was chargeable to defendant. The room as rented — a single room twenty feet in width and forty-five feet in length — was divided into front and rear sections by a partition made of heavy wrapping paper; and whatever merchandise was in plaintiff's possession on consignment was stored in the front section, while the space to the rear was utilized by plaintiff and his wife for their personal living quarters.

Insisting that defendant was indebted to him in connection with the adjustment of their mutual accounts, plaintiff had made no remittances to defendant after October 11, 1937, with the result that on October 23rd defendant drove down to Crystal City, accompanied by one Kleinschrodt, a collector, and by Miss Tice, his secretary and bookkeeper, for the purpose of making an inventory and audit so as to determine the amount, if any, that was due him.

Plaintiff had been working the De Soto territory during the day, and upon returning home about six o'clock in the evening was met on the sidewalk by defendant, who demanded to know why no reports had been sent in. Plaintiff replied that when he was given a settlement by defendant, the reports would be sent in regularly, whereupon defendant cursed him, announced that he would settle with him then and there, and, without provocation from plaintiff, proceeded to strike him twice with his fist, first on the shoulder, and then alongside the head in the region of the ear.

Following this, defendant took off his topcoat and threw it to Kleinschrodt, and announced to plaintiff, "I will murder you right here on this sidewalk". At this juncture plaintiff turned and ran for protection inside an adjoining barber shop, with defendant in close pursuit, and repeatedly demanding of the barber that plaintiff be put out so that defendant's designs upon him could be accomplished. However the barber, being a friend and neighbor of plaintiff, refused to order him out; and after remaining in the shop some twenty to thirty minutes, during which time the barber's wife, at plaintiff's suggestion, put in a call for the constable, plaintiff slipped out of the back door and made his way over to the rear of his own premises in order to avoid defendant and Kleinschrodt, who had remained standing out in front on the sidewalk.

The slander charge is based upon evidence that both on the sidewalk and inside the barber shop, defendant, in the presence and hearing of several people, called plaintiff a "dirty thief"; accused him of having not only stolen from defendant, but also from his former employer, the L. B. Price Mercantile Company; and stated that he would prove to the public what a "dirty low-down thief" plaintiff was. Subsequently, after plaintiff had entered his own living quarters, defendant began lunging against the front door, and again called out in a loud tone of voice, accompanied by profanity, that plaintiff was a "damned dirty dog" and a "low-down thief". People were passing up and down the street at the time, and one couple at least was shown to have stopped to witness the occurrence. Shortly afterwards the deputy constable arrived on the scene, and at his request plaintiff permitted defendant to enter the premises, whereupon defendant resumed his profanity and repeated his accusations against plaintiff in the presence of the deputy and plaintiff's wife, as well as Kleinschrodt and Miss Tice, both of whom had followed defendant inside the premises.

A heated controversy then ensued as to whether an inventory should be taken that evening, which was a Saturday, or be postponed to the following Monday when adequate time would be available; and with plaintiff standing adamant in his refusal to count the stock that evening, defendant and his party finally left the premises and stood outside the building conversing together for about thirty minutes.

Following defendant's departure from the premises, plaintiff and his wife drove over to De Soto, where they remained until about ten o'clock. Returning to Crystal City, they stopped in for a game of cards with the barber and his wife who lived in the rear of the barber shop; and about midnight were informed that the merchandise was being carried out of their premises next door and loaded into automobiles. Plaintiff immediately hurried over to the scene, where he found the constable and his deputy, as well as defendant, and was informed by the constable that it was he who had broken open the door and directed the carrying out of the merchandise, for all of which he "had papers".

Plaintiff testified that up to that time there had been no writ or paper of any kind served either upon him or upon his wife, and that he had given no authority to any one for the entry of his premises. As for this feature of the case, defendant's evidence showed that he had meanwhile instituted a replevin suit before a local justice of the peace, which case, incidentally, has already been determined in this court (Martindale v. Hall, Mo.App., 132 S.W.2d 1041), and discloses that the replevin suit was instituted on October 23rd, the date of this whole occurrence, and that the writ was issued and served that date. The only trouble was, if plaintiff's evidence was to be believed in the instant case, that defendant and the officers not only removed all of the stock of merchandise in the front section of the premises which belonged to defendant, but in addition removed and took away a congoleum rug belonging to plaintiff, for which he had paid $5.95 in St. Louis; a ruffled curtain belonging to plaintiff, for which he had paid $1.10; $12.60 in cash, which was kept in a cigar box, and which was plaintiff's individual property; as well as all the personal records which plaintiff had accumulated during his years of service with the L. B. Price Mercantile Company, and which did not concern defendant in any way. It was admitted, however, that all such articles and items had been kept in the front section of the premises where defendant's merchandise was stored; that the rug and curtain were of the same kind as defendant had in stock; and that nothing was disturbed in the rear section of the premises where plaintiff and his wife maintained their living quarters.

As to the first count of the petition which charged an assault committed upon plaintiff, defendant's answer was a general denial; and, in conformity with such defense, his evidence was to the effect that in the argument back and forth, he struck no blows as contended for by plaintiff.

The answer to the second or slander count was likewise a general denial, coupled with a specific plea that on the date of the occurrence and prior thereto, plaintiff had failed to remit collections totaling $180.70, as he had been obliged to do. The answer contained an admission that defendant had accused plaintiff of taking money belonging to the Martindale Company, which admission defendant...