Mehlstaub v. Michael
Citation | 287 S.W. 1079,221 Mo.App. 807 |
Parties | JOSEPH MEHLSTAUB, RESPONDENT, v. ORRY E. MICHAEL ET AL., APPELLANTS. [*] |
Decision Date | 06 July 1926 |
Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.
AFFIRMED.
Judgment affirmed.
Edward E. Hoops for respondent.
George E. Booth, Wm. T. Jamison and Howard L. Jamison for appellant.
Trimble, P. J., absent.
This is an action for damages alleged to have been sustained by plaintiff by reason of an assault and battery having been committed upon him by defendant L. E. Michael. There was a verdict and judgment in favor of plaintiff in the sum of $ 500 compensatory damages, and defendants have appealed.
The facts show that for some time prior to May 22, 1924, plaintiff was employed as a baker's salesman by the Campbell Baking Company in Kansas City, Missouri, and that his duties took him to the grocery store owned and operated by defendants. Until about two weeks prior to said date, defendants had been plaintiff's customers. Plaintiff testified that on the morning of said day,
Other testimony on the part of plaintiff tended to show that he was down upon the street in front of defendants' store and that L. E. Michael kicked him and hit him, "kind of raised him up and struck him." As a result of being struck, plaintiff was rendered unconscious, some of his teeth were knocked out, he was in the hospital for twenty-four hours, and lost two weeks from his work.
Defendant L. E. Michael testified that about a week before the day in controversy, plaintiff came into the store and said, "I don't see why these sons-of-bitches can't sell my bread; they sell other bread." The witness replied that he permitted his customers to select the kind of bread they desired and that if they did not get plaintiff's it was not the witness's fault. "And if you feel that way about it, you get your bread out and stay out." That plaintiff returned on the day in question and stated to the witness,
The witness further testified that he was not a member of the grocery firm of O. E. Michael and Son, but was merely working there; that he had authority to tell plaintiff whether or not he wanted plaintiff's bread; that he could not tell what plaintiff had in his hand when he pulled it out of his pocket; that "he (the witness) didn't take no chances;" that he did not hit plaintiff as the latter went out the door and not until plaintiff turned around and hit him.
The testimony of L. E. Michael was corroborated by other witnesses of defendants.
In rebuttal, plaintiff testified that he never called defendant L. E. Michael any names; that he was not drunk on the morning in question nor did he have any "dope;" that he did not stay in the store ten minutes.
Defendant O. E. Michael, although in the store, did not testify.
The petition is headed:
."
And in the body thereof it is alleged "that the defendants herein own and operate a grocery store in said territory under the firm name and style of O. E. Michael & Son, Grocery;" that upon entering the store plaintiff was addressed by the defendants in a vulgar, vile and repulsive manner; that in response to his inquiry as to whether defendants were in need of any of his goods he was informed by defendants that they did not desire to purchase any of his goods and requested plaintiff to stay out of the store; that immediately thereafter defendant L. E. Michael assaulted the plaintiff, striking him. The petition prayed judgment in the sum of $ 3000 actual and $ 3000 punitive damages. The answer consisted merely of an unverified general denial.
It is insisted that the petition fails to state a cause of action against the defendant O. E. Michael; that it does not state that L. E. Michael was an employee of his father, O. E. Michael, or that the former acted within the scope of his authority in ejecting the plaintiff from the store; that it does not charge that O. E. Michael was present, aiding and abetting his son or that the two acted in concert in assaulting the plaintiff; that the petition does not allege that "Orry E. Michael and L. E. Michael were copartners, doing business under the firm name and style of O. E. Michael & Son, but only that they were doing business under the firm name and style of O. E. Michael & Son, Grocers."
The petition was not attacked in any manner at the trial, no point was raised in reference to it until the filing of the motion in arrest of judgment. Under these circumstances, if the petition states no cause of action whatever it may be attacked even at this late day. However, it is entitled to a liberal construction and if it states any cause of action whatever, even if only by intendment, it must be held good, however defective it otherwise may be. [Exchange National Bank of Tulsa v. Daley, 237 S.W. 846; O'Connell v. Kansas City, 231 S.W. 1040.]
We think that there is no question but that the petition must be construed as alleging that defendants were partners operating the grocery store in the name of O. E. Michael & Son Grocers. While the petition does not in terms allege that defendants were partners, it does allege to the effect that they were operating the business as a firm composed of defendants. [McCosker & Malloy v. Banks et al., 84 Md. 292, 294, 295, 35 A. 935.] "'Firm' is defined by Webster as the name, title or style under which a company transacts business; a partnership of two or more persons; a commercial house; and the same author defines partnership as an alliance or association of persons for the prosecution of an undertaking or a business on a joint account; a company; a firm; a house." We think that it must necessarily be implied from the allegations of the petition that defendants were doing business as a partnership. Under these circumstances, the petition would have been good even upon a demurrer to it. [...
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... ... Caswell v. Maplewood Garage (N. H.), 73 A. L. R ... 433; Adair v. Kansas City Term. Railroad Co., 282 ... Mo. 133, 220 S.W. 920; Mehlstaub v. Michael, 221 ... Mo.App. 807, 287 S.W. 1079.] ... We also ... hold that plaintiff's testimony as to the declarations of ... ...
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... ... In other words, they were sued as partners ... (citing Mehlstaub v. Michael, 221 Mo.App. 807, 287 S.W. 1079 in which) ... it was held that a petition which stated that the defendants therein operated the business ... ...