Hall v. Martindale

• Decision Date: 02 April 1940
• Docket Number: No. 25294.,25294.
• Parties: HALL v. MARTINDALE.
• Court: Missouri Court of Appeals

138 S.W.2d 657

HALL v. MARTINDALE.

No. 25294.

St. Louis Court of Appeals. Missouri.

April 2, 1940.

As Modified on Denial of Rehearing April 2, 1940.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be reported in State Reports."

Action by E. E. Hall against R. E. Martindale, doing business under the style and firm name of the Martindale Mercantile Company, for assault, slander, and trespass. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded.

Theodore P. Hukriede, of Union (W. R. Carver, of Festus, and E. J. Houlihan, of St. Louis, of counsel), for appellant.

Edgar & Matthes, of De Soto, and R. E. Kleinschmidt, of Hillsboro, for respondent.

BENNICK, Commissioner.

This is an action for damages in three counts, the first charging defendant with an assault on 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 instruments 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.

As to each of the first two counts of his petition, plaintiff prayed judgment for actual damages of $5,000, and punitive damages in a like amount; while as to the third count, he prayed judgment for actual damages of $427.84, and punitive damages of $5,000.

Originating in the Circuit Court of Jefferson County, the case, on plaintiff's application, was sent on change of venue to the Circuit Court of Franklin County, wherein, upon a trial to a jury, and with issue joined upon a general denial, the following verdict was returned:

"We, the jury in the above-entitled cause, find the issues for the plaintiff and against the defendant, and we assess plaintiff's actual damages on the first count in his petition, in the sum of Five Hundred ($500.00) Dollars; and punitive damages on said first count, in the sum of Five Hundred ($500.00) Dollars;

"And on the second count of plaintiff's petition we assess plaintiff's actual damages at Five Hundred ($500.00) Dollars, and punitive damages in the sum of Five Hundred ($500.00) Dollars;

"And on the third count of plaintiff's petition we assess plaintiff's damages at Nineteen Hundred Twenty-Seven and eighty-four cents ($1927.84), making the total amount of damages in plaintiff's favor, in the sum of $3927.84 Dollars."

Defendant's motion for a new trial was filed and overruled; and from the judgment entered in plaintiff's favor in conformity with the verdict, defendant's appeal to this court has followed in the usual course.

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

Plaintiff, E. E. Hall, had been employed since May of 1937 as a sales agent for defendant, R. E. Martindale, who was doing business at the time under the style and firm name of Martindale Mercantile Company, and whose principal place of business was located at 4519-21 Manchester Avenue, in the City of St. Louis.

Plaintiff's work consisted of the sale of blankets, curtains, beds, congoleum rugs, and similar articles of household goods, which he sold from door to door in Jefferson County on the time-payment plan, usually reporting his collections to defendant two or three times each week.

According to the plan of operation, merchandise belonging to defendant would be consigned to plaintiff, and pending its sale by the latter, would be kept in a large storeroom, twenty by forty-five feet in dimension, which had been rented in what was known as the Fox Building, at 316 Bailey Road, in Crystal City. While the premises were rented in plaintiff's name, it was an admitted fact that defendant had obligated himself to pay $10 a month towards the rent. The room 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 rear section was used by plaintiff and his wife for their personal living quarters.

Considering that defendant was indebted to him in connection with the adjustment of their mutual accounts, plaintiff had made no report on his collections after October 11, 1937; and on October 23rd, defendant came 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 ascertain the amount that was due.

Plaintiff, according to his own testimony, had been working the territory in De Soto during the day, and, upon returning home about six o'clock in the evening, was accosted by defendant, who demanded to know why no report had been transmitted. Plaintiff's reply was that when he was given a settlement by defendant, his reports would be sent in regularly, whereupon defendant cursed him, and, without any provocation from plaintiff, struck him twice with his closed fist, first on the shoulder, and then upon the ear.

Defendant then threw off his coat as though to intensify the assault, and, upon saying to plaintiff, "I will murder you right here on this sidewalk", plaintiff turned and ran for protection inside a nearby barber shop, with defendant in hot pursuit, and demanding of the barber that plaintiff be ejected so that defendant's designs upon him could be accomplished. The barber, a friend and neighbor of plaintiff, refused to put him out, and after remaining in the shop for some twenty-five minutes, during which time the barber's wife put in a telephone call for the constable, plaintiff slipped out the back door and made his way to the rear of his own premises in order to avoid defendant and Kleinschrodt, who had remained standing outside the...