Henderson v. Laclede Radio, Inc.

• Decision Date: 11 February 1974
• Docket Number: No. 1,No. 57111,57111,1
• Citation: 506 S.W.2d 434
• Parties: James E. HENDERSON, Plaintiff-Appellant, v. LACLEDE RADIO, INC., a/k/a Radio Station KATZ, Defendant-Respondent
• Court: Missouri Supreme Court

Page 434

506 S.W.2d 434

James E. HENDERSON, Plaintiff-Appellant, v. LACLEDE RADIO, INC., a/k/a Radio Station KATZ, Defendant-Respondent.

No. 57111.

Supreme Court of Missouri, Division No. 1.

Feb. 11, 1974.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 11, 1974.

Raymond Howard, St. Louis, for plaintiff-appellant.

Donald U. Beimdiek, and J. D. Leritz, Kenney, Leritz & Reinert, Professional Corp., St. Louis, for defendant-respondent.

SEILER, Judge.

This is an appeal by plaintiff, who recovered a $60,000 verdict, from the action of the trial court in sustaining defendant's motion for new trial in a case where plaintiff had brought suit for damages against defendant radio station for personal injuries resulting from an assault by one of defendant's employees in the collection of an unpaid account.

We have jurisdiction for the reason that the appeal having been filed prior to January 1, 1972, at a time when we would have had jurisdiction of the case, we retain and dispose of the case in accordance with the mandate of Sec. 31 of the 1970 amendment to Art. V, 1945 Mo.Const., V.A.M.S.

The trial court granted a new trial on the basis of alleged error in an instruction given by plaintiff involving a deviation from MAI language. Here, the parties, of course, respectively attack and defend the action of the trial court but, in addition, defendant renews its point that plaintiff failed to make a submissible case on respondeat superior and hence, in any event, the trial court should have sustained defendant's motion for a directed verdict. We agree and accordingly remand with directions to enter judgment for defendant.

According to plaintiff's side of the case, Del Cook was a salesman engaged in soliciting advertising for defendant radio station. Plaintiff, a commercial or news photographer, had known Cook for several months and at one time had done a small amount of photographic work for Cook, who at an earlier date was engaged in publication of a short-lived magazine venture. Later, after Cook was employed by defendant as a salesman, plaintiff purchased advertising time on the radio station from Cook. He made a $5.00 payment to Cook and received a bill from the radio station for four broadcasts at $5.00 each for a total of $20.00. Plaintiff's testimony was that he called the radio station about the bill and was told by the girl who answered the telephone that he could either pay by mail or give it to the collector. Plaintiff told her Cook was the person he did business with and the girl told him Cook would collect it and if he did not, plaintiff could mail it in. Early the following day, and with no expectation of seeing Cook, plaintiff at 4:00 a.m. was at an all-night cafe in East St. Louis where he was waiting to take some commercial photographs of a group of people who were then inside a tavern next door to the cafe. Plaintiff was putting a coin in the music machine when he heard defendant's salesman, Del Cook, call to him. Plaintiff looked around. Cook asked him for the money plaintiff owed the radio station. Plaintiff responded that he had called the station and had been told he could pay it the next week. Plaintiff said Cook's answer was that he wanted it because 'he was my collector.' Cook demanded the money and plaintiff did not give it to him. Then, in plaintiff's words, Cook 'ran into me with his body and all, knocking me to the floor, and said he wanted the money.' Plaintiff was on the floor with Cook on top striking him until someone pulled Cook off. The testimony was that Cook was a large man, around 6 feet in height, weighing over 200 pounds, and that plaintiff was about 5 9 in height and weighed about 150 pounds.

Three or four of the customers put Cook outside. Plaintiff, thinking Cook had gone, went outside after three or four minutes, but Cook was there and ran into plaintiff again, again knocking him down. At the same time plaintiff dropped his camera and case and when he started to pick them up, Cook kicked him in the face, using the toe of his shoe, kicking him below the left eye with sufficient force to break a bone in the face, trap one of the eye muscles in the dislocated bone, produce bleeding, and permanently impair the eyesight of the left eye. Plaintiff got to his feet, said he did not know what to do, and paid Cook the $15.000, for which Cook gave plaintiff a receipt. Plaintiff did not produce the receipt, but he received no further bills from the radio station. Plaintiff went to his room and then to a hospital, where he was treated for his injuries.

When asked if Cook were sober or intoxicated, plaintiff said he did not know, that '(h)e acted wild.' A witness produced by plaintiff testified that he saw plaintiff and Cook outside the cafe and they were quarrelling. Cook was saying what he would do to plaintiff if plaintiff did not pay him. He saw Cook kick plaintiff in the face and grabbed Cook and shoved him away. This witness, who was a bouncer from the next door tavern, acted as a peacemaker and told plaintiff to pay Cook and for Cook to give plaintiff a receipt. Plaintiff put in evidence portions of the deposition of the sales manager for defendant radio station. These portions were that Del Cook was a salesman working directly under the sales manager; that Cook's duties were to solicit advertising and his usual hours were from 9:00 a.m. to 5:00 p.m., but there was no prohibition against his working after hours; that Cook also would write copy for the station that Cook did collect on occasions and was not...