Appeal
from Jackson Circuit Court.
Affirmed.
Williams
C. Frank, C., concurs. The foregoing opinion by Williams, C.
is adopted as the opinion of the Court, Bland, J., and
Arnold, J., concurring, Trimble, P.J., absent.
OPINION
This is
an appeal from the Circuit Court of Jackson County from a
judgment of $ 500.00 compensatory damages and $ 1000.00
punitive damages. The verdict was rendered for $ 500.00
compensatory damages and $ 4500.00 punitive damages. A
remittitur of $ 3500.00 was entered by the plaintiff. The
suit was brought against A. I. Morris, owner of an apartment
house, and George Houchins, manager of the apartment.
There
seems to have been another defendant, Max Morris, but as the
case was dismissed as to him, he need be no further
mentioned.
The
defendant, A. I. Morris, filed his answer which was a general
denial couples with the plea of self-defense. There was no
question raised as to the petition in the trial court, but it
is attacked here for the first time.
The
evidence shows that defendant, A. I. Morris, was the owner
end operator of the Roferd Apartment Hotel, 1305 Troost
Avenue, Kansas City, Missouri. It was admitted that the
defendant, George Houchins, was employed by the owner as the
manager of the apartment. The plaintiff herein, rented one of
the apartments and occupied the same in conjunction with his
nephew, one Simpson. Miss Pickett was the assistant manager.
On February 8, 1925, at about midnight, plaintiff and his
nephew Simpson and other guests, were playing cards in the
apartment rented by the plaintiff. Defendant Houchins knocked
at the door and made some statement in regard to the card
players being engaged in gambling. This charge was denied by
plaintiff. The evidence shows that Houchins cursed and swore
at plaintiff and his guests, ordered them out of the
apartment and threatened to take them to the police station
that Houchins at the time had some sort of a star indicating
he was a police officer, and in his hand he had a club.
Plaintiff and his friends left the apartment. Plaintiff was
told by Houchins that he should return to the apartment in
the morning and get his things. Houchins further claimed that
there was some damage caused by lighted cigarettes burning
the top of the table. The next morning, which was Sunday,
plaintiff with his nephew Simpson returned. They went to the
manager's office and asked Miss Pickett, the assistant
manager, for the key to their apartment. She gave plaintiff a
key which she termed a "pass key". It seems that
Houchins had put some special lock upon the door and the key
thus furnished would not fit. Miss Pickett then told them
that one of the windows was open and that they could crawl
through the window and open the door. Simpson, the nephew of
plaintiff, then crawled through the window and opened the
door and plaintiff entered the apartment. A little later
defendant Houchins, going through the apartment building, saw
the door of plaintiff's apartment open and when he saw
plaintiff and his nephew in the apartment asked them how they
got in. Houchins then accused them of breaking the special
lock which he had placed upon the door. After they explained
that hiss Pickett had permitted them to enter, Houchins told
them to get their things and leave the building. Houchins
further told them that before they could take their clothing
and effects from the apartment, they would have to make
settlement with him for the burned places on the table top
and for a glass water pitcher which he claimed they had
broken. Plaintiff and nephew refused to make a settlement.
Defendant Houchins called the houseman in the hearing of
plaintiff and his nephew Simpson, and told the houseman to go
and get his club and also to hare the janitor return with
him. The houseman returned in a few minutes and handed
Houchins his club, also handed him some other article which
plaintiff and his nephew took to be a gun. This article
Houchins placed in his pocket. After thus arming himself,
witness Houchins thus testified as to what happened:-
"I stepped in the door of the apartment and said,
'Boys, let's settle for this thing'"
((meaning the broken pitcher and the burn in the table top)
'"I have got to have pay for these things, boys, it
is all checked up to me here, each and every apartment.
Everything that is in it, and I have got to have pay for
it.'"
Houchins further testified as follows:
"Simpson went out the door and never said anything.
Hinson said, 'I can't pay it' (for the things
missing and the burn in the table top). Because he done that,
I reached over with my club and I hit him with it. He
didn't strike back. That was all the lick that was hit,
end he ran out. I hit him over the left shoulder."
Houchins
further testified that he frequently was armed with a gun and
a club, and that he watched the apartment and had, upon prior
occasions clubbed roomers, but that he had never clubbed any
married men. The reason for the distinction is not made
plain. He further testified that at the time of the
difficulty he was not mad when he struck plaintiff and just
asked him to settle for the things.
The
evidence on the part of the plaintiff showed that he was
struck ten or twelve times with the police club by Houchins.
His left arm from wrist to shoulder was swollen and bruised,
and was black and blue; that he had a knot on his spine at
the 4th dorsal vertebra; that he was treated nine or ten
times by a chiropractor; that he expended some $ 15.00 or $
20.00 in doctor bills and some money for medicine; that he
suffered four or five weeks and for a time had to carry his
arm in the lapel of his coat.
The
appellants first make the point that the petition states no
cause of action. In this court this question is first
presented.
In the
language of the court in Sturgis vs. Kansas City Railways
Co., 228 S.W. 861, l.c. 863, it says:-
"Of course for such an objection to prevail at this late
day, the petition must be so defective as to wholly fail to
state any cause of action at all."
The
point seems to be that the allegation "while acting
within the scope of his employment", is a mere legal
conclusions. However, the petition recites that defendant
Houchins was the manager, in charge and operating the
apartment hotel, and then follows the language complained of.
It was admitted that Houchins was manager of the apartment.
Appellants' contention could not be answered better than
in the language of Commissioner Railey in Maniaci vs.
Interurban Express Co., 266 Mo. 633, 182 S.W. 981, l.c.
983, as follows:-
"In other words, if the facts stated aside from the
language above quoted, are sufficient to stamp the acts and
conduct of Joiner, at the time and place of shooting, as
being within the scope of his employment, then the petition
states a good cause of action, even if the language
'within the scope of his employment', be eliminated
therefrom."
The
brief of the appellants cites Smith vs. Western
Union, 232 S.W. 480, l.c. 481, and quotes from the case
as follows:-
"The petition in failing to set forth facts which would
support the pleader's legal conclusion that the
servant's wrongful act was done, 'while in the line
of his employment, and in the performance of his duties is so
defective as to wholly fail to state any cause of action at
all."
However, the text of the case is (232 S.W. at 481):-
"We need not go into the question of whether the
petition, in failing to set forth facts which would support
the pleader's legal conclusion that the wrongful act of
the cook was done while in the line of his employment and in
the performance of his duties is so defective as to wholly
fail to state any cause of action at all, and thereby be
vulnerable to a mere objection to the introduction of
evidence, when such vulnerability is to be applied on appeal
after the trial court has overruled, the objection and a
trial is had."
thus
showing that this case does not support the contention of
appellants.
This
contention is ruled against appellants.
The
next contention is that the instructions submitted an issue
of law to the jury and is again leveled at the words
"within the scope of his employment and authority".
Somewhat the same contention was made in Sturgis vs.
Kansas City Railways Company, 228 S.W. 861, l.c. 865,
and the court in answering the complaint said:-
"The instruction did not omit a necessary element of
plaintiff's case. If it was deemed to lack clarity, or
was not sufficiently specific, the defendant could have asked
an instruction on that feature; but nothing of the kind was
done and, as we have said, the case was not tried on the
theory that there was any question of the assault being
within the scope of their employment, if it was committed in
the furtherance of their business of expediting traffic, or
of preventing interference therewith."
A
similar contention was made in Llywelyn vs. Lowe,
239 S.W. 535, 538-539, and ruled against appellants'
contention.
We
think there is no merit in this contention.
It is
next contended that the court should have instructed the jury
that exemplary or punitive damages cannot be allowed against
Morris unless the jury should find Morris authorized the
assault or ratified it after its commission. In support of
that proposition appellants cite:- Lake Shore R. Co. vs.
Prentice, 147 U.S. 101, l.c. 107, 13 S.Ct. 261, 37 L.Ed.
97 (1893); Rouse vs. Met. St. Rys. Co., 41 Mo.App.
298, l.c. 303; Perkins vs. Railroad Co., 55 Mo. 201.
