Knight v. Western Auto Supply Co.

• Decision Date: 01 April 1946
• Docket Number: No. 20620.,20620.
• Parties: BYRON E. KNIGHT v. WESTERN AUTO SUPPLY COMPANY, A CORPORATION, WILLIAM R. COTTON AND A.J. EARL.
• Court: Missouri Court of Appeals

193 S.W.2d 771

BYRON E. KNIGHT v. WESTERN AUTO SUPPLY COMPANY, A CORPORATION, WILLIAM R. COTTON AND A.J. EARL.

No. 20620.

Kansas City Court of Appeals. Missouri.

April 1, 1946.

Appeal from Jackson County Circuit Court. — Hon. Albert A. Ridge, Judge.

REVERSED AND REMANDED.

Clay C. Rogers, John A. McGuire and Mosman, Rogers, Bell & Conrad for appellant, Western Auto Supply Company.

(1) (a) The evidence was insufficient to justify a submission on the issue of defendant Wm. R. Cotton acting within the scope of his employment for defendant Western Auto Supply Company. Therefore, the doctrine of respondeat superior is not applicable. Haehl v. Wabash R. Co., 119 Mo. 325, 24 S.W. 737; Milazzo v. K.C. Gas Co. (Mo.), 180 S.W. (2d) 1; State ex rel. Goesselin v. Trimble et al., 328 Mo. 760, 41 S.W. (2d) 801; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W. (2d) 125; Conner v. Missouri Pac. Ry. Co., 181 Mo. 397, 81 S.W. 145; More v. Ford Motor Co., 97 S.W. (2d) 400, 265 Ky. 575; Wolf v. Ter. R. Ass'n. of St. Louis, 282 Mo. 562, 222 S.W. 114; A.B.C. Stores v. Brown, 105 S.W. (2d) 725, 40 A.L.R. 1212, 114 A.L.R. 1033. (b) Mr. Cotton was within his legal rights in ordering plaintiff to leave the premises and ordering him to remain away therefrom. Norris v. Whyte, 158 Mo. 20, 57 S.W. 1037; State ex rel. Gosselin v. Trimble, supra. (c) There is no evidence of any conspiracy between defendants Cotton and Earl. State v. May et al., 142 Mo. 135, 43 S.W. 637; Sec. 4411, R.S. Mo., 1939; Sec. 4632, R.S. Mo. 1939; Capp v. City of St. Louis, 15 S.W. 616, 215 Mo. 345; Glover v. Amer. Gas. Ins & Sec. Co., 130 Mo. 173, 32 S.W. 302; Fritz v. Railroad, 342 Mo. l.c. 77, 78, 148 S.W. 74; State ex rel. v. Ellison et al., 268 Mo. 239, 187 S.W. 23. (2) Instruction No. 2 given on behalf of plaintiff was erroneous because it finds no support in the evidence. Traner v. Sphalerite Mining Co., 148 S.W. 70, 243 Mo. 359. (3) Instruction No. 5 for plaintiff was prejudicially erroneous. Schafer v. Ostman, 148 Mo. App. 644, 129 S.W. 63.

McAllister & Humphrey, and Joe W. McQueen, for appellant, William R. Cotton.

Richard H. Beeson, David P. Dabbs, and Raymond E. Martin for appellant, A.J. Earl.

(1) The Court erred in permitting plaintiff's counsel to inform the jury in his opening statement and in admission of evidence of a claimed assault by defendant Earl on plaintiff after the original assault occurred in the warehouse because said second assault was not alleged in the original petition and was, barred by the two year statute of limitations, and its injection into the case prejudiced the jury against said defendant. Sec. 1016, R.S. Mo., 1939; Payton v. Rogers, 4 Mo. 255; Baker v. Missouri Pacific Railway Co., 34 Mo. App. 98, l.c. 113-114; Bricken v. Cross, 64 S.W. 99, 163 Mo. 499; Arpe v. Mesker Bros. Tran. Co., 323 Mo. 640, 19 S.W. (2d) 668; Broyles v. Eversmeyer, 262 Mo. 384, 171 S.W. 334; Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W. 233, l.c. 236; Davis v. Gould, 131 S.W. (2d) 360, l.c. 364. (2) The amount of the verdict as to both actual and punitive damages was increased by said illegal evidence, to the prejudice of said defendant. Sec. 1016, R.S. Mo., 1939; Peyton v. Rogers, 4 Mo. 255; Baker v. Missouri Pacific Railway Co., 34 Mo. App. 98, l.c. 113-114; Bricken v. Cross, 64 S.W. 99, 163 Mo. 499; Arpe v. Mesker Bros. Tran. Co., 323 Mo. 640, 19 S.W. (2d) 668; Broyles v. Eversmeyer, 262 Mo. 384, 171 S.W. 334; Mitchell v. Health Culture Co., 349 Mo. 475, 162 S.W. 233, 236; Davis v. Gould, 131 S.W. (2d) 360, 364. (3) The court erred in giving plaintiff's measure of damages instruction. Gray v. Nations, (Mo. App.) 23 S.W. (2d) 1080, 1086; Seithel v. St. Louis Dairy Co., Mo. 300 S.W. 280; Raymond on Instructions, Vol. 1, Sec. 95; McCarthy v. Sheridan, (Mo.) 83 S.W. (2d) 907; Dunn v. Dunmaker, 87 Mo. 597, l.c. 602. (4) The verdict of $1,500 for compensatory damages is excessive. Rhoades v. Alexander, (Mo. App.) 57 S.W. (2d) 736. (5) The verdict of $1,500 exemplary damages is excessive. Schafer v. Ostman, (Mo. App.), 129 S.W. 63, 65.

J.M. Loomis for respondent.

(1) The Court did not err in permitting plaintiff's counsel to inform the jury, in his opening statement, of a claimed assault by defendant Earl on plaintiff, while plaintiff was sitting on the curb across the street from the warehouse where he had gone after the original assault occurred in the warehouse. Ellis v. Wahl, 167 S.W. 582, 180 Mo. App. 507; McKee v. Calvert et al., 80 Mo. 348; Brownell v. The Pacific Railroad Company, 47 Mo. 239. (2) The verdict of $1,500 for actual damages is not excessive. Schafer v. Ostmann, 155 S.W. 1102, 172 Mo. App. 602; Sturgis v. K.C. Railways Company, 228 S.W. 861. (3) The verdict of $1,500 exemplary damages is not excessive. Schafer v. Ostmann, 155 S.W. 1102, 172 Mo. App. 602; Sturgis v. K.C. Railways Company, 228 S.W. 861.

BLAND, P.J.,

This is an action for damages for an assault and battery. There was a verdict and judgment in favor of plaintiff in the sum of $1500 actual damages and $1500 punitive damages. Defendants have appealed.

The evidence shows that the defendant, the Western Auto Supply Company (hereinafter called the company) maintains at various places throughout the country what are called associate stores, which are supplied from the Company's warehouses and operated under contracts or franchises issued by the Company through its warehouse department. Defendant Cotton was the manager of the Company's warehouse located at 2114 Central Street in Kansas City, Missouri. As such manager, he would pass upon and approve or disapprove applications of parties desiring to operate an associate store. Prior to November 25, 1939, plaintiff and his sister-in-law, Mrs. Joyce K. Todd, had operated as partners an associate store in Harlan, Iowa. Early in November, 1939, Mrs. Todd bought the interest of plaintiff in said store and had placed one Frank Caporal in charge to operate it for her. Plaintiff stated that the sale of his interest to Mrs. Todd was subject to an option or understanding of some character not made plain by the evidence, but it appears from plaintiff's testimony that he and Mrs. Todd drew up a written agreement whereby plaintiff was to acquire Mrs. Todd's interest in the store. The agreement was not signed and could not become effective unless approved by the Company.

Plaintiff's testimony is to the effect that on the 25th of November, 1939, he, his wife, and daughter drove from Harlan, Iowa, to Trenton, Missouri, where he picked up Mrs. Todd and from there they proceeded to drive to Kansas City for the purpose of obtaining approval of the agreement between the parties. They arrived at the warehouse above described and met defendant Cotton. At that time defendant Earl was present and was introduced to the plaintiff. Earl was an independent plumber operating on his own account, and had been accustomed to make repairs for the Company. He had been called this day to repair a leak in the toilet or washroom, and he and the plaintiff had never met before. When plaintiff and his party arrived at the warehouse there were present in addition to Mr. Cotton a number of other employees, among them a Mr. Bisbee whom plaintiff knew, and who had assisted in installing the store at Harlan, Iowa. There was a large outer office in the front of the building occupied by a number of clerks and others, and back of this was Mr. Cotton's private office to which place plaintiff and his party retired with Mr. Cotton for consultation. Plaintiff testified: "I told Mr. Cotton that we had driven from Harlan, Iowa, with the hopes of having a talk with him regarding the store there and to complete an option for me to purchase it within a thirty-day period"; that Mr. Cotton seemed to be upset about it; that plaintiff started to tell him the terms of the sale and he acted very nervous and didn't "seem acceptable at all to it and spoke of the man that had been taken in the store there in my place by name of Frank Caporal"; that Mr. Cotton indicated to plaintiff that he could not approve the proposed sale of the store at Harlan by Mrs. Todd to plaintiff as there was another man running it. Plaintiff testified that Mr. Cotton then left the office and went outside to talk with Mr. Bisbee. Plaintiff also left the private office and went out into the general office and engaged in general conversation with other parties there. Mr. Cotton and Mr. Earl were in there. Plaintiff again asked Mr. Cotton what he figured on doing about the store and he (Cotton) acted very nervous. Thereafter plaintiff went into the washroom, at which time he saw Mr. Cotton and Mr. Earl talking together. The washroom was about 20 feet away from where plaintiff, saw them talking. Later a fight occurred between the witness and the defendant Earl. Plaintiff describes it in this manner: "I just finished washing my face and hands with cool water because I had been sleepy in the afternoon, dried my face, wasn't finished drying my face when Earl or something hit me under the chin —." He said he didn't know Earl was in the room until he was hit; that he hadn't said anything to him; that Earl hit him right on the chin, "and I up and I hit at him, right between the eyes. I didn't notice he had on glasses"; that Earl then attempted to throw water on him and called him a dirty name, "and when he came toward me I just up with my foot and kicked him in the chest kind of back toward the toilet stool"; that Earl grabbed up a piece of gas pipe about two and one half feet long "and applied a head lock on me holding that gas pipe under his arm"; that this was a severe pressure, "the most terrible that I have ever had"; that they continued to fight; that plaintiff took the gas pipe from Earl; that Earl then ran out the door of the washroom; that when the door opened for Earl to go out plaintiff saw Cotton with a stick or club in his hand about 10 or 12 feet from the door; that when Earl went...