Manol v. Moskin Credit Clothing Co.
| Decision Date | 09 December 1930 |
| Parties | MANOL v. MOSKIN CREDIT CLOTHING CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court of Milwaukee County; A. H. Reid, Circuit Judge, presiding.
Action by Hilda Manol against the Moskin Credit Clothing Company, amended to Moskin Brothers, Incorporated. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]
Reversed and remanded for a new trial.
Action began December 15, 1928; judgment entered April 5, 1930. Damages for assault and battery. Plaintiff, a woman thirty-eight years of age, resided with her family, consisting of her husband and two children, in Milwaukee, Wis. The defendant deals in men and women's ready to wear apparel and advertises to extend credit. On September 1, 1928, the plaintiff purchased of the defendant a coat, paying $4 down and agreeing to pay $2.50 weekly thereafter. She made a payment on October 16th. On Friday morning, October 26, 1928, a representative of the defendant, Sam Cash, called for the purpose of making collection upon the Manol account and upon the account of Roy D. Sweet, who had been recommended to the defendant by the plaintiff, the plaintiff having received $1 for the recommendation. The plaintiff claims that as a result of the insistence of the collector, Cash, she became engaged in a wordy altercation with him, during which he called her, among other names, a deadbeat, whereupon the plaintiff ordered him out. She then closed and locked the door, whereupon he commenced to kick the door and rattled the doorknob. Becoming frightened, she opened the door and started to run downstairs to her landlady, whereupon she claims:
That when Cash saw the daughter he ran downstairs and left the place.
Cash, on the other hand, claims that he had no wordy altercation; that he did intimate that Sweet was a deadbeat; that after the door was closed he started to go down the stairway, when the plaintiff suddenly opened the door and said, “G_____ d_____ you, you are not going to insult my friends,” and grabbed a carpet sweeper and made an effort to hit him over the head with this carpet sweeper; that to prevent her from striking him, he took hold of her arm and took the sweeper away from her and said, “Madam, don't be foolish,” and went out of the building.
Plaintiff claims that as a result of the assault she suffered from severe nervous shock, was more or less confined to her bed in the days immediately following. The occurrence happened on Friday and on the following Tuesday night she had a miscarriage.
The case was submitted to a jury. The jury returned a special verdict by which it found the facts as follows:
“(1) Sam Cash, the defendant's collector, did assault and injure plaintiff on October 26, 1928.
(2) While committing the assault he was acting within the scope of his duties as collector for defendant.
(3) That defendant with full knowledge of the making of the assault, ratified and approved the act of Cash in making the assault.
(4) That in making the assault Cash was actuated by malice or ill will toward the plaintiff.
(5) That the defendant with full knowledge of such malicious assault did ratify and approve the action of Cash in making such an assault.
(6) (7) Assessed the plaintiff's compensatory damages at $1,000.00 and punitory damages at $5,000.”
The trial court approved the verdict in all respects with the exception of punitory damages, and required the plaintiff to remit all sums in excess of $3,000 for punitory damages or stand a new trial. The plaintiff elected to remit $2,000 from the punitory damages. Judgment was entered for $4,000, from which the defendant appeals.Rubin & Zabel, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for appellant.
Gold & McCann, of Milwaukee, for respondent.
[1] The defendant's first proposition is that when its employee Cash made the assault upon the plaintiff as found by the jury, he was not as a matter of law acting within the scope of his employment. No useful purpose would be served by setting out the evidence in great detail. Whatever happened on the occasion of Cash's visit to plaintiff's home was a continuous affair. The defendant contends that when the plaintiff succeeded in closing the door that terminated any effort Cash was making for and on behalf of his employer and that he thereafter stepped aside from his employment and acted for his own purposes and on his account. It is considered that the circumstances are not such as to warrant that conclusion. Plaintiff says that immediately upon closing the door Cash commenced to knock and bang upon the door. He says: “After she closed the door and I proceeded to walk down stairs it was about five seconds and she reopened the door.” Under the evidence, the case upon this point was clearly for the jury. Mandel v. Byram, 191 Wis. 446, 211 N. W. 145.
[2] The defendant's second contention is that the evidence does not sustain the finding of the jury to the effect that the defendant with full knowledge ratified the acts of its employee Cash.
The evidence on behalf of the plaintiff tends to establish the following: That the plaintiff with her husband went to the store of the defendant on Saturday evening and there talked with the manager in charge of the defendant's business; they asked the manager who it was they sent up to the house to collect the bill and who beat up the wife, and were told by the manager that he did not know the name, that he had just started to work that day and on account of what had happened they had fired him; that plaintiff's husband insisted upon the man's name being given so that he might be arrested, but the manager said they knew nothing; that they tried to show to the manager the injuries which the plaintiff had sustained and explain the circumstances, whereupon they were told that was a business place and ordered to get out; thereupon they paid their bill and went to consult a lawyer.
The defendant, on the other hand, claims that the plaintiff came to the...
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