Hunt-Murry Co. v. Gibson

• Decision Date: 03 May 1932
• Docket Number: Case Number: 21582
• Citation: 1932 OK 342,11 P.2d 123,157 Okla. 112
• Parties: HUNT-MURRY CO. et al. v. GIBSON.
• Court: Oklahoma Supreme Court

1932 OK 342

11 P.2d 123

157 Okla. 112

HUNT-MURRY CO. et al. v. GIBSON.

Case Number: 21582

Supreme Court of Oklahoma

Decided: May 3, 1932

Syllabus

¶0 1. Pleading--Special Demurrer to Paragraphs of Petition on Ground They Plead Conclusions Properly Overruled Where Supported by Sufficient Allegations of Fact.

A special demurrer to certain paragraphs of a petition upon the ground that such paragraphs plead mere conclusions is properly overruled where the paragraphs attacked are supported by proper allegations stating facts sufficient to state a cause of action and from which the conclusions attacked may be properly drawn.

2. Corporations--Liability for Exemplary Damages for Torts of Servants.

The rule is well established in this state that a corporation may be liable in exemplary damages for a tort committed by its agent or servant while engaged in the master's business, where the act is such as would subject the servant to exemplary damages if sued alone, and it is not necessary that the particular act of negligence be either authorized or ratified by the corporation. Mayo Hotel Co. v. Danciger, 143 Okla. 196, 288 P. 309.

Appeal from District Court, Payne County; Charles C. Smith, Judge.

Action by Esther Gibson against the Hunt-Murry Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

S. J. Berton, for plaintiffs in error.

William M. Taylor and George R. Taylor, for defendant in error.

RILEY, J.

¶1 This is an appeal from a judgment in favor of defendant in error, herein referred to as plaintiff, against plaintiffs in error, herein referred to as defendants, in an action brought by plaintiff to recover actual and exemplary damages on account of the acts and conduct of defendant C. W. Mantooth, manager and in charge of a general store owned and operated by defendant Hunt-Murry Company, a corporation.

¶2 The petition of plaintiff charges, in substance, that on September 26, 1929, a number of merchants of the city of Cushing, including Hunt-Murry Company and a millinery firm known as the Grace Hat Shop, were conducting a style show in said city, the purpose of which was to place upon exhibition and advertise their goods, wearing apparel, etc. Models were employed by the merchants to wear and display their merchandise before the public. Plaintiff had been engaged as a model for the Grace Hat Shop to wear, exhibit, and show their hats and other merchandise. The defendant Hunt-Murry Company had on display at said show a costly and beautiful fur piece; that plaintiff obtained permission from Mantooth to wear the fur piece while on the platform exhibiting a hat for the Grace Hat Shop; that upon obtaining such permission she placed said fur over her shoulders and around her neck and fastened or snapped the same; that as she, in company with two others engaged by the Grace Hat Shop, was about to ascend the steps leading to the platform where the exhibition or show was being held, and in the presence and view of a large number of spectators, including a number of her friends and acquaintances, defendant Montooth, without any warning or without any reason therefor, suddenly approached her at her back and in an excited, rude, angry, and insulting manner and with violence snatched, jerked, and pulled said fur from her shoulders and neck in such a way as to cause her to suffer and sustain physical injury, and injury to her health, mental pain, and anguish to her damage in the sum of $ 5,000. She further alleged that by reason of the wrongful, unlawful acts of said defendant, her success and appearance as a model was interfered with, and that on account thereof she suffered great mental pain and anguish, great insult, shame, and humiliation, which greatly and materially injured her health and subjected her to the serious suspicion, criticism, and loss of confidence and trust of her friends and associates, to her further damage in the sum of $ 5,000. She prayed for $ 10,000 actual, and $ 10,000 exemplary damages.

¶3 After separate unsuccessful demurrers to certain paragraphs of the petition, defendants answered separately by general denial.

¶4 The cause was tried to a jury, resulting in a verdict and judgment for plaintiff for $ 450 actual damages and $ 450 exemplary damages, from which judgment defendants appeal.

¶5 The first proposition presented is that plaintiff failed to either plead or show actual damages in her petition, or prove actual damages in her evidence. Under these propositions defendants apparently attempt to raise the question of alleged error in overruling their special demurrers to certain paragraphs of the petition upon the ground that they pleaded mere conclusions. No general demurrer to the petition was filed.

¶6 The paragraphs at which the special demurrers were leveled of themselves did not state a cause of action, but when taken in connection with the first eight paragraphs, a good cause of action was pleaded. The facts constituting the cause of action were contained in the first eight paragraphs, and these were not assailed except by general objection to the introduction of any evidence.

¶7 Defendants cite two cases in support of their contention, viz., International Harvester Co. v. Cameron, 25 Okla. 256, 105 P. 189, and Dame v. Cochiti Red. & Imp. Co. (N. M.) 79 P. 296. These cases are authority for the proposition that where there is no averment of facts in the petition from which the conclusions of law are drawn, the same will have no force in the pleadings, but they are not in point in this case, for the reason that the facts are pleaded in the first eight paragraphs of the petition, from which the alleged conclusions in the paragraphs attacked were drawn.

¶8 It is next contended that plaintiff failed to prove any...