Hinson v. Morris

• Decision Date: 27 June 1927
• Docket Number: 16043
• Citation: Hinson v. Morris, 298 S.W. 254, 222 Mo.App. 758 (Kan. App. 1927)
• Parties: E.G. Hinson, Respondent, v. A. I. Morris and George Houchins, Appellants
• Court: Kansas Court of Appeals

298 S.W. 254

222 Mo.App. 758

E.G. Hinson, Respondent, v. A. I. Morris and George Houchins, Appellants

No. 16043

Kansas City Court of Appeals of Missouri

June 27, 1927

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.

These cases give color to the appellants' contention. However the appellants overlooked the case of Haehl vs. The Wabash Railroad Company, 119 Mo. 325, l.c. 342, 24...