Marts v. Powell

• Decision Date: 11 December 1913
• Parties: COLUMBIA MARTS, Respondent, v. W. H. POWELL, Appellant
• Court: Missouri Court of Appeals

161 S.W. 871

176 Mo.App. 124

COLUMBIA MARTS, Respondent, v. W. H. POWELL, Appellant

Court of Appeals of Missouri, Springfield

December 11, 1913

Appeal from Phelps County Circuit Court.--Hon. L. B. Woodside Judge.

AFFIRMED.

Judgment affirmed.

Lorts & Breuer for appellant.

(1) A plaintiff cannot declare upon one cause of action and recover upon another, and the allegation and proof must substantially correspond. Jones v. Lauderman, 39 Mo. 287; Ischer v. St. Louis Co., 95 Mo. 261; Ingwerson v. Railroad, 205 Mo. 328; Litton v. Railroad, 111 Mo.App. 140; McMaster v. Railroad, 122 Mo.App 313; Linville v. Green, 125 Mo.App. 297; Clements v. Yeats, 69 Mo. 623; Field v Railroad, 76 Mo. 614; Stix v. Matthews, 75 Mo. 96; Whipple v. Peter Cooper, etc. 55 Mo.App. 554; Johnson, etc., v. Central Bank, 116 Mo. 558; Haynes v. Trenton, 108 Mo. 130; McCormick v. Railroad, 154 Mo. 202. (2) The verdict is against the weight of the evidence, and the court should have given defendant's instruction in the nature of a demurrer. State v. Burgdorf, 53 Mo. 65; State v. Wilson, 91 Mo. 410; State v. Witten, 100 Mo. 525; State v. Patrick, 107 Mo. 147; Chapman v. Haney, 189 Mo. 709; State v. Huff, 161 Mo. 459. (3) The question propounded to plaintiff as to her father's Masonic connections was highly improper, and decidedly prejudicial to appellant. And even though the objection to this evidence was sustained, the poison was there, and not cured by the ruling of the court. Gibson v. Zeibrig, 24 Mo.App. 65; Fathman v. Tumility, 34 Mo.App. 236; Beck v. Railroad, 129 Mo.App. 23; Harper v. Telegraph Co., 92 Mo.App. 313; Bragg v. Railroad, 192 Mo. 366; Wojtylak v. Coal Co., 188 Mo. 285.

J. A. Watson, J. J. Crites and G. W. Vanwormer for respondent.

(1) The action recovered upon was not a change from the one declared upon. Booher v. Trainer, 157 S.W. 848; Lemmons v. Robertson, 164 Mo.App. 89; Pierce v. Carpenter, 65 Mo.App. 191; Luttermann v. Romey, 143 Iowa 233; Webb's Pollock on Torts, 247; Bishop on Noncontract Law, secs. 189, 190; Vosburg v. Putney, 80 Wis. 523; United States v. Lunt, 311 F. Cas. 15, 643. (2) The testimony amply supports the verdict. Booher v. Trainer, 157 S.W. 848, and cases cited. (3) The question propounded to respondent as to whether or not her father was a member of the Masonic Lodge, could not have been prejudicial to appellant for the reason that the court sustained an objection thereto, and consequently if there had been members of that order on the jury, they could not have learned from this question whether respondent's father belonged to the Masonic Lodge.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., concurs in all except the next preceding paragraph as to which he expresses no opinion.

OPINION

FARRINGTON, J.

Plaintiff, Columbia Marts, sued for $ 10,000 actual damages and $ 5000 punitive damages, alleging that defendant "unlawfully, feloniously, brutishly and violently assaulted" her "with the intent then and there forcibly and against her will feloniously to ravish and carnally know; that by reason of such assault the plaintiff was greatly frightened, humiliated and injured, and caused to suffer great mental anguish and disgrace," etc. The answer was a general denial. Upon trial by jury, plaintiff was awarded as her actual damages the sum of $ 750, punitive damages being expressly disallowed in the verdict.

The defendant upon this appeal urges three assignments of error, which we will pass upon in the order presented.

I. The first is concluded against him by the late decision of the Kansas City Court of Appeals in the case of Booher v. Trainer, 157 S.W. 848. To elucidate: Appellant complains that plaintiff's petition predicated her cause of action for damages upon an assault with intent to rape, whereas her evidence merely tended to establish a common or simple assault, and that the rule that a plaintiff cannot declare upon one cause of action and recover upon another has not been changed by the practice act--that the allegations and proof must substantially correspond. Conceding, for a moment, that plaintiff's evidence merely tended to establish a common or simple assault, respondent's counsel quote from the decision in the Booher case: "The gravamen of the charge is the assault, and it was not necessary for the plaintiff to prove the intent with which the assault was made in order to recover, although intent was alleged in the petition," as in the case before us. (Italics ours.) Approving as we do that part of the Booher case, no argument need be advanced in this opinion and that case may be examined for reasons and authorities. [See, also, Lemmons v. Robertson, 164 Mo.App. 85, 148 S.W. 189.] In justice to appellant's counsel it may be said that at the oral argument they frankly admitted that the Booher decision overruled their contention.

II. Appellant insists that "the verdict in this case is against the weight of the evidence, and the court should have given defendant's instruction in the nature of a demurrer." At the close of all the evidence the defendant requested an instruction embodying this idea and the question is squarely put for our consideration.

The statement of the facts in this case, as contained in appellant's brief, is as follows:

"The plaintiff in this case is a young woman, living with her parents in the city of St. James, Missouri, where she was employed as a night operator in the St. James telephone exchange and had been for something like a year previous to her alleged difficulty with the defendant.

"The defendant is a business man residing also in St. James, where he has lived for many years, and is engaged in the lumber business there, operating a lumberyard also at Salem, Missouri.

"The evidence showed that it had been his custom to make frequent calls at the central telephone office, where plaintiff worked, for the purpose of talking over the telephone to out-of-town parties, and particularly to parties in charge of his lumberyard.

"On July 23, 1912, the date of the alleged difficulty, defendant went to the central telephone office, by appointment, between 7:00 and 7:30 o'clock, to talk over the long distance, as was his custom. After answering his call, plaintiff and defendant became engaged in conversation of an affectionate character. The plaintiff did not know just how it started, 'but anyway she said something about the boys, and he asked her if she didn't have a smile for him,' to which she replied that she had not. And he told her then that he was coming back later that night. About 9:00 that night defendant did go back to the office, and what happened on his arrival is best told by the plaintiff, as follows: 'Q. Now state to the jury just what he did, will you? A. Well, he come in--. Q. Tell them in your own way. A. It was about 9:00 o'clock, and after time to lock the door, and he turned out the lights, and by that time I was up from the chair, and he grabbed me and held me so tight that I could not breathe, and he tried to throw me on the couch and pull up my clothes, and I got loose from him and opened the door and told him to go, and he said he didn't intend to get me in any bad shape, because I knew he was married and I was single, and I told him to go, and he went.'

"Before going, however, defendant gave plaintiff one dollar which she accepted and retained, so she told her mother, and the plaintiff herself admitted that she got the dollar and spent it, but said defendant left it on the floor.

"Plaintiff testified that the defendant did not tear her clothing in any way or even disorder it, but said, 'He just wrinkled my dress, it was white.'

"The telephone office is situated in a building on a corner with a street on two sides, and in the heart of the city. The building itself is occupied on the first floor by the Bank of St. James and Mr. Laun's store, which is always open long after the hour of this alleged assault, and a barber shop. The telephone office is situated on the second floor, where Mr. Laun had his dwelling rooms, and which were occupied at this time by Mr. Laun's family, consisting of his wife, a grown daughter and two grown sons, and one room which has a door opening into the telephone office was at the time occupied by two young men who were visiting Mr. Laun. The evidence tended to show that these people were in their rooms at the time. Any ordinary conversation in the telephone office could be heard in the living rooms of Mr. Laun, and any noise louder than ordinary could be heard in his store downstairs.

"Plaintiff gave no alarm whatever, and made no outcry. She went on with her duties until next morning, went home, and her mother said she could see no change in her whatever. She continued to be friendly with the defendant and always spoke to him friendly when she met him on the streets and 'talked to him just like she did to any other man' and went to his office on one occasion with another operator.

"The alleged difficulty occurred on July 23d, but she told her father and mother nothing of it until December 20th, approximately five months, giving as her excuse for not telling them that she was ashamed to do so.

"After the difficulty, and long before she told her father and mother, she told Richard Kalb, Harry Greble and Willie James, three young men with whom she kept company, all about her difficulty with the defendant."

This is a well-prepared statement of the case from appellant's viewpoint. The facts and circumstances are presented to us as they were to the jury, in a way calculated to discredit the plaintiff's story. This statement is an accusation--either that plaintiff's testimony that defendant assaulted her is wholly untrue, or that she sold her virtue for the dollar which she received and kept--and is...