Kepley v. Park Circuit & Realty Co.

• Decision Date: 05 February 1918
• Docket Number: No. 14937.,14937.
• Court: Missouri Court of Appeals
• Parties: KEPLEY v. PARK CIRCUIT & REALTY CO.

200 S.W. 750

KEPLEY v. PARK CIRCUIT & REALTY CO.

No. 14937.

St. Louis Court of Appeals. Missouri.

February 5, 1918.

Rehearing Denied February 20, 1918.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

"Not to be officially published."

Action by O. H. Kepley against the Park Circuit & Realty Company, a corporation, and another, as to whom plaintiff was allowed to dismiss. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Schnurmacher & Rassieur and W. M. Hezel, all of St. Louis, for appellant. A. Lowenhaupt, of St. Louis, for respondent.

BECKER, J.

This is a suit for damages for wrongful assault and eviction of plaintiff from an amusement resort owned and operated by the defendant Park Circuit & Realty Company, a corporation. The case was tried with the intervention of a jury, who returned a verdict for plaintiff and against the defendant for $1,000 actual and $500 punitive damages. From the judgment rendered thereon the defendant appeals.

Plaintiff's petition named as defendant the Forest Park Highlands Amusement Company, an alleged existing corporation, as the owner and operator of a place of amusement known as Forest Park Highlands, and alleged that on the 4th day of July, 1914, the plaintiff entered the park of the defendant company and became a patron thereof, and while thus a patron, and without any wrong-doing on his part, the defendant, through its agents and servants, without just cause or provocation, willfully, wantonly, wrongfully, and unlawfully assaulted, cursed, beat, wounded, and ejected plaintiff from said park, injuring and damaging him, and praying for $2,500 actual damages and $5,000 punitive damages.

The sheriff's return showed service on "Robert Hafferkamp, secretary and treasurer of the said defendant corporation." Thereafter the Forest Park Highlands Amusement Company filed its answer, in which it denied the allegations of the petition, and particularly denied that it was a corporation, or that it could be sued as such, and stated that it had been duly and legally dissolved on or about the 25th day of January, 1906, and that it had had no corporate existence since that date, and filed therewith and in support thereof the affidavit of said Robert Hafferkamp, its former secretary. Thereupon plaintiff filed an amended petition by leave of court, making the Park Circuit & Realty Company, appellant here, a party defendant, and summons was ordered to issue for said defendant, which was duly served and a return made thereon. It appears that there was no change in plaintiff's petition beyond that of making the Park Circuit & Realty Company a defendant and changing the word "defendant" where found to that of "defendants." The Forest Park Highlands Amusement Company refiled its answer to the amended petition, and the Park Circuit & Realty Company filed a motion to strike plaintiff's amended petition from the files and to quash the summons against it for the following reasons: First, because the cause of action stated in the amended petition was totally different from the cause of action stated in the original petition in that the Forest Park Highlands Amusement Company, whom the plaintiff attempted to sue as a corporation, had long prior to the time of filing the suit been dissolved, and no recovery could be had against such corporation, and therefore the plaintiff in making the Park Circuit & Realty Company a defendant was seeking to substitute for the cause of action originally sued on, an entirely different cause of action; second, because the plaintiff by his amended petition seeks to substitute a different defendant from the one originally sued; third, because the action against the defendant is not a joint cause of action against both defendants for the reason that the Forest Park Highlands Amusement Company was legally dissolved in 1906, and plaintiff's alleged cause of action did not arise, if at all, until the 4th day of July, 1914; fourth, because plaintiff's petition as filed was not instituted against any real defendant, and therefore the filing of plaintiffs petition cannot be treated as legally instituted, and such a petition cannot be amended so as to bring in other parties. This motion was overruled and due objection and exceptions made at the time, and at the same term of court a term bill of exceptions was presented and allowed and filed. It appears that thereafter the said Park Circuit & Realty Company filed its separate answer to plaintiff's amended petition, which contained: First, a general denial; second, further answering stated that the plaintiff while a visitor at the Forest Park Highlands, together with others, was guilty of disturbing the peace by offensive and indecent conversation and boisterous conduct, in the presence of a large multitude of people, and that plaintiff refused to behave or leave the premises when requested so to do and was ejected from the premises because of such misconduct, by a police officer of the city of St. Louis who acted of his own accord and without any instructions from the defendant, and that no more force was used in ejecting him than was necessary for that purpose; third, further answering, the defendant set forth that the Forest Park Highlands Amusement Company was not and had not been at any time during the year 1914 a corporation, that plaintiff could not maintain any suit against it, that plaintiff could not have a joint right of action against both of the defendants based upon matters alleged in the petition, and that plaintiff therefore should not be permitted to further prosecute the suit against said defendant. Plaintiff in due time filed a reply denying the new matters set up in said answer.

At the trial and after the jury was impaneled, the court over the objection of the defendant permitted the plaintiff to dismiss as to the defendant Forest Park Highlands Amusement Company.

As to the evidence in the case, plaintiff testified that he had visited Forest Park Highlands on July 4, 1914, arriving there some time before 4 o'clock in the afternoon, where he met one of his employés, a Mr. Nelson, and was a little later joined by Mr. Jones and Mr. Oakley, two other employés of his office; that after taking a drink at a table the party had gone to the dance hall, where they remained some 30 minutes, after which they returned to a table which was about halfway between the entrance of the park and the bar, which were at extreme ends of the park. Plaintiff testified that he did not drink anything intoxicating; that the rest of the party, however, drank beer; that the party began singing college songs, whereupon an attendant of the park told them that they would have to "cut that out," which request to cease singing was obeyed by plaintiff and the members of his party. Plaintiff further testified: That a short time thereafter a woman, who was unknown to either plaintiff or the members of the party, passed by the table at which they were seated and looked over at them, and in a short time she again passed the table, stopped and smiled, and upon one of the party offering her a chair she sat down and joined them and had several steins of beer with them. That this woman "had a rather hale or highpitched laugh." That this woman and one of the men in the party were telling about their experiences in Paris and that every once in a while, when the man would mention some particular place in Paris that they had both been to, the woman would laugh. That, a short time after the woman had joined them at their table, Policeman Pine, and the park watchman, John Boachek, came up behind Mr. Jones, and Policeman Pine jerked Jones out of his chair and said, "You boys will have to leave the park." That the woman jumped up and said, "Let's go, boys, we do not want to have any trouble," and that she then disappeared, and witness had not seen her since. That the park watchman, Boachek, pulled Nelson out of his chair and then jerked the plaintiff out of his chair onto the ground. That Policeman Pine took Jones to the entrance of the park first, the rest of the party being delayed by the fact that Nelson entered into a scuffle with the watchman, Boachek. That Nelson had hold of the watchman's cane and was scuffling back and forth over the cane. That some one came to plaintiff and said, "Why don't you tell Nelson to turn loose of him and move out quietly." That plaintiff thereupon went to the watchman, Boachek, and asked him to allow Nelson to have his coat (which, the day being warm, he had taken off), and that Nelson would then leave quietly. That the watchman thereupon allowed Nelson to get his coat. That Nelson, the watchman, and plaintiff then walked toward the entrance to the park. That as the three of them neared the entrance of the park plaintiff asked the watchman who was walking beside him, "Is there any objection to my speaking to the manager of the park?" That the watchman answered: "No, you can see him. There he stands." That plaintiff thereupon walked to within a few feet of the man pointed out by the watchman as the manager, when a policeman in uniform came up to meet plaintiff, to whom plaintiff said, "May I speak to the manager?" That the policeman walked right up to plaintiff, grabbed him by the neck, and said, "You get the h___ out of here." That the policeman gave plaintiff a shove toward the gate and knocked plaintiff through the narrow passageway out of the park. That Nelson had been put out of the park just prior to the plaintiff being put out, and that Nelson had a scuffle with the policeman at the gate when the policeman put him out. Plaintiff testified that his shoulder was bruised and his arm bruised and scratched; his shirt sleeve torn out and his underwear ripped all the way down the back; that he could not state what the shirt was worth, but it had cost him $10, while his underwear was worth $4 or $5.

On cross-examination plaintiff stated that, on the afternoon in question, ...