Nees v. Julian Goldman Stores

Decision Date09 September 1930
Docket Number(No. 6793)
Citation109 W.Va. 329
CourtWest Virginia Supreme Court
PartiesErma Nees v. Julian Goldman Stores, Inc.

1. The test of liability of the principal for the tortious act of his agent is whether the agent at the time of the commission of the act was acting within the scope of his authority in the employment of the principal, and not whether the act was in accordance with his instructions. If such act be done within the scope of authority, and in furtherance of the principal's business, the latter is responsible. (Gregory's Adm. v. Railroad, 37 W. Va. 606). And where the evidence and circumstances are in sharp conflict respecting the scope of the authority of the agent, a jury question arises which should be submitted with proper instructions.

2. An instruction, given in a personal injury case for damages for physical pain, mental anguish and impairment of capacity to enjoy life resulting from an assault on the plaintiff, which submits to the jury plaintiff's right of recovery, and in the event of recovery, directs them to assess as damages such as they may believe plaintiff entitled to under all the evidence in the case, not exceeding the amount sued for, naming it, does not constitute reversible error for failure to define a measure for, or the elements of, damages; especially in the absence of a request from the opposing party for a fuller instruction respecting the elements of, or measure for, damages. (Taylor v. Lumber Co., 90 "W. Va. 530.)

3. Instructions embodying a principle of law applicable to the case already given in another instruction, should not be given though couched in different language, and it is not error to refuse them.

4. The extent of cross-examination is largely in the discretion of the trial court, and the court's action sustaining an objection to the form of a question propounded on cross-examination will not be reversed except where abuse or injustice is manifest.

Error to Circuit Court, Wood County.

Suit by Erma Nees against Julian Goldman Stores, Incorporated. Judgment for plaintiff, defendant brings error.

Affirmed.

Wm. Bruce Hoff and Thayer Mclntire, for defendant in error.

Russell, Hiteshew & Adams, for plaintiff in error.

Lively, President:

Mrs. Erma Nees, plaintiff below, was awarded a judgment on a verdict of $7,500.00 by a jury for an assault and injuries resulting therefrom committed by Harry Millman, manager of the Julian Goldman Stores, Inc., defendant below, which prosecutes this writ of error, charging (1) that the verdict is contrary to the law and the evidence; (2) that the court erred in allowing certain evidence offered on behalf of defendant.

The gravamen of the complaint is fully set out in a prior decision. Nees v. Julian Goldman Stores, Inc., 106 W. Va. 502. The testimony of Mrs. Nees, corroborated by her sister-in-law, Mrs. Flowers, an eye witness, substantially supports the allegations.

Evelyn Anderson, a domestic servant in the home of the plaintiff, had purchased a hat and a coat from the defendant and had executed a conditional sales contract therefor, which provided that in the event of failure of payment for the merchandise, defendant had the right to re-take possession of the articles purchased, either with or without process of law wherever the merchandise might he. According to Mrs. Nees, on the morning of April 13, 1927, at which time she had been pregnant for a period of four and one-half months, Evelyn Anderson entered her room in the second story of the house and took from the clothes cupboard the coat which she had purchased from defendant. Plaintiff's attention was then attracted by loud talking in the downstairs portion of her house. Investigating, she found Millman, whom she recognized as the person who had, on the previous day, called to collect from Evelyn Anderson on her account due defendant, standing in the doorway between the living room and the hall. Plaintiff advised Millman of her physical condition, then apparent, told him that she wished no disturbances in her house because of her condition, and requested him to leave. About twenty minutes later, when plaintiff came downstairs, she found Millman still in the living room and again ordered him to leave. Millman demanded the money owed him by Evelyn Anderson, used abusive language, shook his fist at plaintiff, and accused her of upholding her domestic servant. When ordered a third time to leave, Millman started toward the door; but having reached the kitchen door, which had been partially closed by plaintiff who had followed Millman thereto, he suddenly turned, forced the door open, thus pushing the door knob violently into plaintiff's side, struck the body of plaintiff with his fist or arm, causing her to fall over a small chair and then to the floor, announced, in opprobious terms, that he would have his money or his merchandise, and started after Evelyn Anderson who had been standing in the room with the coat on her arm. Failing to catch the domestic servant, he returned to the kitchen and left the house. Plaintiff then threw the coat, which had been thrown to her, out of the house. Thereafter, plaintiff suffered pains in her abdomen, and on May 14, 1927, experienced a miscarriage. Doctor S. M. Prunty, who had been attending Mrs. Nees during the pregnancy period, testified that plaintiff's physical condition, when he first called on her, was good, except for the usual pregnancy ailments, and in response to a hypothetical question, based on plaintiff's testimony, replied that he attributed the miscarriage to the shock and injury sustained by plaintiff on April 13, 1927. In 1929, Mrs. Nees again experienced a miscarriage, which, together with injured genital organs, poor health and weakened physical condition, she attributes to the injury. There is, however, a difference of medical opinion as to whether one miscarriage predisposes future miscarriages.

The defense of the Julian Goldman Stores, Inc., is that Millman who had been employed as manager of its Parkersburg store, was acting outside the scope of his employment and authority, since it was the general policy of defendant that managers could not collect for or repossess any merchandise, and that Millman had been so instructed. Harry S. Teahn, road manager for defendant, whose duty it was to install managers and who had installed Millman, testified that he had instructed Millman of these restrictions, although he admitted that Millman had control of all collections. It was further shown that "most of the managers have a contract" and that these contracts contain all the instructions the managers receive, but Stupel, secretary to Julian Goldman, did not know whether or not Millman had executed one of these contracts. Millman, however, had, during his management, instituted a number of suits for the collection of accounts due defendant, and after obtaining the coat when the assault was made, had, later, a writ in detinue issued to recover and did recover from Evelyn Anderson the hat which she had purchased from defendant.

To militate against the evidence adduced by plaintiff, Howes, salesman-collector for defendant, told a contradictory story. He had called at the Nees home to collect from the vendee and was requested to return about three o'clock on that day. He did so, but it was Evelyn Anderson's afternoon off from work. This he reported to the manager, who, being disappointed, decided to call on the vendee with the collector. Again Evelyn Anderson was not at home, and they left to return the next morning. A child answered the door and told them that the vendee was not there, but Howes saw her through a crevice in the door, whereupon Millman demanded the money or the coat. Howes heard "the lady running upstairs and crying very loudly", and, according to Howes, it was plaintiff, not Millman, who used the abusive and indecent language and who threw the coat in question out of the house and into the rain. Howes further testified that Millman did not go into the house or strike or push Mrs. Nees.

Evelyn Anderson was not a witness, not having been located, but counsel for plaintiff appear to have been diligent in their search for her. Millman, who had been discharged by defendant, early in 1928. did not testify, and there is no evidential data which indicates any effort on defendant's behalf to have him summoned as a witness.

For convenience, the parties will be designated as plaintiff and defendant as they were in the court below.

The first point of error is that the verdict was contrary to the law and the evidence, and hence the refusal of the court to direct a verdict for defendant was error.

The basis of this point is that Millman, the general manager, who committed the assault resulting in damages to plaintiff, was acting without the scope of his authority, either actual or apparent, in the commission of the assault, and therefore his principal (defendant) was not liable. This point of error involves the instructions given and refused, which relate to the liability of defendant for the acts of Millman, and which instructions will be considered under this point of error so far as they relate to defendant's liability under the law and evidence.

It is contended by defendant Stores Inc., that Millman was not acting within the scope of his authority or duties when he committed the assault. It is pointed out that he had no power or authority, and it was no part of his duties to make collections for merchandise sold, or to repossess the merchandise. On the other hand, it was shown that he had general charge of the Parkersburg store with power to employ and discharge the employees including the collectors. He was responsible to his employer for the management of the branch store. He occupied the position of a vice-principal in the control of the employees under his general charge. He had general charge of the collections, and had instituted suits for the purpose of making...

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