McDonnell v. G. B. Peck Dry Goods Co.

• Citation: 228 S.W. 759
• Decision Date: 07 March 1921
• Docket Number: No. 21773.,21773.
• Parties: McDONNELL v. G. B. PECK DRY GOODS CO. et al.
• Court: United States State Supreme Court of Missouri

228 S.W. 759

McDONNELL v. G. B. PECK DRY GOODS CO. et al.

No. 21773.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Mary McDonnell against the Geo. B. Peck Dry Goods Company and another. A nonsuit was entered, and, her motion to set the same aside having been denied, plaintiff appeals. Appeal dismissed.

Plaintiff commenced this action in two counts, at the September term, 1918, of the circuit court of Jackson county, Mo., against the above-named defendants. The first count alleges that the defendant Geo. B. Peck Dry Goods Company is a corporation, organized under the laws of Missouri; that defendant George A. Leiter is an officer of said corporation and that he was plaintiff's superior officer in their line of business; that on June 15, 1918, said Leiter, without reason or excuse therefor, called on plaintiff at her private office and, in a most violent and threatening manner, abused plaintiff, waving his hands and threatening her with his hands and fists, thereby assaulting plaintiff and putting her in great fear of bodily harm; that plaintiff suffered a great shock from said conduct of said defendant, and that said defendant was acting for both defendants in his actions as herein detailed; that as a result of the great fright caused by the manner and conduct of said defendant, plaintiff suffered a great nervous shock; that she is suffering, and will in the future continue to suffer therefrom, and that by reason of said injuries so sustained she has been damaged in the sum of $5,000. She also asks for punitive damages in the sum of $10,000, making the aggregate amount sued for in this count $15,000. The second count alleges that, in addition to the matters heretofore stated, said George A. Leiter, while acting for defendant company, did say and state, in the presence of numerous persons, "You are disloyal to the George B. Peck Dry Goods Company," and, at the same time, while acting for said company, discharged plaintiff. She charges that the statement of said defendant was false, and known by him to b.?, false when made; that by reason of said charge against her honesty and integrity as an employee aforesaid, she had been damaged in the sum of $25,000. She also asked for $25,000 as exemplary damages, making the total amount sued for in said count $50,000.

Plaintiff offered testimony in support of the allegations in her petition and, at the conclusion of her evidence, on March 20, 1919, the record of the circuit court aforesaid reads as follows:

"Now again come the same parties and also comes the jury herein; defendants now offer an oral demurrer to the evidence, which demurrer the court indicated would be sustained, and now the plaintiff deeming the law as declared by the court precludes him from a recovery in this cause, thereupon takes and suffers an involuntary nonsuit with leave to move to set the same aside."

Plaintiff's transcript, filed in this court on July 21, 1919, contains the above record entry, and also recites the following:

"It is therefore ordered and adjudged by the court that the plaintiff take nothing by this suit and `that defendants go hence discharged hereof without day and have and recover of plaintiff the costs in this cause incurred and expended and have therefor execution."

On March 22, 1919, plaintiff filed a motion to set aside said nonsuit, which was overruled and the cause duly appealed by her to this court.

C. C. Crow, of Kansas City, for appellant.

Grant I. Rosenzweig, of Kansas City, for respondents.

RAILEY, C. (after stating the facts as above).

1. Appellant, on December 8 1920, filed in this court, and in this cause, an alleged abstract of the record. On December 23, 1920, respondents filed herein "an additional and corrected abstract of the record," setting out the names of the respective parties to this suit, and giving the correct number of same as 21773. The contents of respondents' abstract purports to have been taken "from bill of exceptions." We find, upon comparison of the two abstracts of record, that they contain the testimony of same witnesses...