Mason v. Down Town Garage Co.
| Decision Date | 05 July 1932 |
| Docket Number | No. 17563.,17563. |
| Citation | 53 S.W.2d 409 |
| Parties | BERT S. MASON, RESPONDENT, v. DOWN TOWN GARAGE COMPANY ET AL., APPELLANTS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.
AFFIRMED AS TO FIRST COUNT AND REVERSED AS TO SECOND COUNT.
Woodruff & Gard for respondent.
W.R. Moore and Clyde Taylor for appellants.
By a petition framed in two counts plaintiff sought actual and punitive damages for an assault and for false arrest and imprisonment. Plaintiff had a verdict and judgment against both defendants on the assault charge for actual damages in the sum of $4000, and judgment against both defendants on the second count for actual damages in the sum of $1000. Punitive damages were not allowed on either count. After the usual steps by motions for new trial and in arrest both defendants duly appealed. The questions raised include the ruling of the court upon demurrers to the evidence and call for a search of the whole record for the facts. The abstract discloses the following:
On the 26th day of October, 1929, plaintiff was conducting a garage located at 814 East Eleventh Street in Kansas City, Missouri. The Down Town Garage Company, a corporation, was engaged in a similar business at another location in the same city. Defendant Smith was its employee and was engaged in night work and operated a tow car for defendant company. The Police Department of Kansas City had an understanding with the defendant company, the nature of which may be stated in the words of defendants' counsel: "It was part of the arrangement that had been made by the Police Department and the Down Town Garage Company that whenever a wrecked car needed towing, under such circumstances, that the police for any reason were interested in having it towed, such as a wrecked car, an abandoned car, or a car engaged in violation of the law, something of that sort, that the Police Department would call the Down Town Garage and have them tow the car, go there and get it, the Police Department not having tow cars of its own."
On the date named and at about the hour of eleven o'clock, P.M., there was a collision between a Buick car and a Dodge car in front of, or very near, the Mason garage, at which time the Buick car lost the rim and casing from one of its wheels which fell and remained for a time in the middle of the street. The operator of the Buick car drove past the scene of the wreck about the distance of one-third of a block where he abandoned the Buick car in the yard of a filling station and disappeared. The Dodge car belonged to a customer of Mr. Mason. The owner of it was there, and Mason, with two of his employees named Johnson and Posey, moved the car from the street into the Mason garage, and Mr. Mason picked up the tire of the Buick car and carried it inside the entrance of his garage and placed it against an automobile standing near the door.
Two police officers of Kansas City, named Hink and McDonough were attached to the automobile theft bureau of the Police Department, and at the time in question were driving around in an automobile in the neighborhood of the collision. They were not in uniform and were designated as detectives. Their attention was called to the abandoned Buick car, and in about twenty minutes after the collision officer Hink went to the Mason garage in order to use the telephone. Mason and his two employees named were present. According to plaintiff's evidence officer Hink did not tell any of the men, nor did they know, that he was an officer, or the purpose of his business, and the officer stated that he was not sure that Mr. Mason was in the office at the time he telephoned. Officer Hink called Police Headquarters and asked to be connected with the Down Town Garage. The connection was made and he left an order or a request for the company to send its tow car to the location of the Buick automobile.
Plaintiff's employee, Johnson, testified that he heard a part of the conversation of the officer in reference to a garage or tow car. Very shortly thereafter defendant Smith appeared with a tow truck at the place where he had been directed to go and there met the two officers at the location of the Buick car. At the time officer Hink was in the Mason garage office to telephone he testified that he informed Johnson "when the Down Town Garage, when the truck comes after the Buick, I will send him down here after this tire." The absence of the tire from the Buick and the presence of it in the Mason garage was known to the officers. When Smith arrived the officers directed him to go to the Mason garage and get the tire. He was informed the garage man would let him have it. Smith then drove the tow car a short distance to the Mason garage, walked in the east entrance, met Johnson and asked for the tire. Johnson pointed it out and told him, "there it was." Smith picked up the tire, carried it out and placed it on the truck. At that time Mason was in the office and from his evidence did not know what had happened between Smith and Johnson and he followed Smith out of the garage. In describing what then occurred, Mr. Mason testified:
"I noticed some one come and pick up the tire and I went out and it had been thrown in this car and I put my hand on the tire and asked if he had authority to take the tire, and I was struck a blow, and the next thing I knew I heard a man, I later learned to be Elgin Smith, telling an officer we were trying to steal the tire, and the officer took hold of me and ordered me in the police car... ." On cross-examination he testified that all he said to Smith was: "Who are you?" That Smith turned and struck him without saying a word, and the next thing he knew the officers were putting him in the car.
As to what occurred at the time of the assault, Johnson testified: "Mr. Mason came out of the office and I went out behind him and started up to where the Buick was and I got fifteen or twenty feet and heard a blow and turned around and saw Mr. Mason falling." He said the man with the truck had struck Mason and later struck him two or three times while he was endeavoring to rise.
Smith testified that when he went after the tire he saw Mason and Johnson and "I told them I was from the Police Department and that the two officers had sent me down there after the tire and asked them if there was a tire there belonging to that Buick." They said: "Yes, sir." Johnson said: "There it is." Smith said that he was informed he could have the tire, and further: He then testified that Mr. Mason came out and said: "Who does that Buick belong to." Smith informed him that he did not know. He testified that Mason then said: "`Well, by God, I will take that tire then,' and he reached up and pulled the tire off the truck, and I kicked the motor off and got out and I said, `Mister, you can't take that tire, the police officers sent me down after that, I will be held responsible.'" He further testified that the tire was then on the sidewalk; that he reached down to get the tire and that Mason struck at him; that he then struck Mason; that Mason was striking at him all of the time. Smith was asked why he hit Mason and said: Smith further said that three or four men came out of the garage and it looked like they had axles or something. "I didn't expect to let them beat me up with them irons and I went out to the middle of the street and hollered for these officers."
While these things were taking place, officers Hink and McDonough were driving around looking for the man, or the parties, who had been in the Buick, and they appeared at the scene of the commotion about the time Smith called for them. In the meantime two motorcycle officers were going by and stopped to inquire the trouble, but they departed when they ascertained that the other officers were on the case. When the officers arrived, officer Hink testified that Smith said: "The garage man won't let me have the tire." He further testified that he engaged in conversation with Mason about the tire which was then on the curbing by the side of the truck. Officer McDonough testified that the tire was on the truck. There was some communication between Hink and Mason designated as an "argument" and while this was going on or before that time, Mason's employee Posey had been informed that Mason was in a fight. He picked up a piece of an automobile spring and went out of the office to the scene of the trouble. Officer McDonough testified that Posey was approaching officer Hink from the rear and was making an attempt to strike him with the piece of iron. McDonough grabbed Posey, informed him that he was under arrest, and attempted to put him in the police car. Mason made some interference and he was also placed under arrest. Both men were taken to the police station and after preliminaries were placed in confinement for a period of about two hours when they were released. The officers made their report to headquarters that the men were arrested on view for interfering with an officer; that they had been drinking, and that Posey had attempted to assault officer Hink. A report of the casualty to Mason was also made by one of the officers in which it was stated that Mason was drunk and would not give Smith the tire; that Smith reported that Mason was drunk and cursed him and that Smith struck Mason. There was no formal charge filed against the men and they were dismissed without prosecution.
The evidence that might indicate any request by Smith for the...
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