Parsons v. Missouri Sav, Bank & Trust Co.
| Decision Date | 06 December 1937 |
| Docket Number | No. 18975.,18975. |
| Court | Missouri Court of Appeals |
| Parties | PARSONS v. MISSOURI SAV. BANK & TRUST CO. |
Appeal from Circuit Court, Bates County; Charles A. Calvird, Judge.
"Not to be published in State Reports."
Action by Walter Parsons against the Missouri Savings Bank & Trust Company to recover for alleged wrongful and malicious injury to furniture. Verdict and judgment for plaintiff for actual and punitive damages, and defendant appeals.
Affirmed.
J. A. Silvers, of Butler, and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, for appellant.
James A. DeArmond, of Butler, and Franklin W. Long, of Rich Hill, for respondent.
CAMPBELL, Commissioner.
This is an action to recover damage for the alleged wrongful and malicious injury to household and kitchen furniture. The trial was with a jury. The verdict awarded plaintiff $100 actual and $500 punitive damages. From the judgment rendered on the verdict, the defendant has appealed.
The facts are: T. J. Smith, for some years prior to March 12, 1931, owned a farm in Vernon county, Mo., upon which there was a barn and dwelling house. The farm was subject to a mortgage held by the defendant. Plaintiff, prior to February 25, the exact time is not disclosed, went to see Smith for the purpose of renting the farm. Smith at that time told plaintiff to see Mr. Randolph and that he, Smith, "was going to turn it (farm) over" to the mortgage holder. Plaintiff had two or three conversations with Randolph. The first was in December, 1930. In that conversation Randolph told plaintiff that "they" wanted to sell the place, and that if the farm was not sold by March 15 "they would have to rent it." In the last conversation, which was on January 31, 1931, plaintiff and Randolph agreed on the term of rental, $100 cash for the pasture, two-thirds of the corn, and one-third of the small grain and one-half of the hay. Plaintiff on February 24 hauled hay into the barn, Smith helping. Plaintiff began moving his household and kitchen furniture into the dwelling on February 25 and completed the work on March 1. On March 3 or 4, about 5 o'clock p. m., plaintiff went to the premises in his automobile, discovered that all of the goods which he had placed in the dwelling house were in the driveway leading to the house. Rain was falling and the goods were not covered. He placed a feather bed, mattress, sheets, pillows, and quilts in his automobile and took them with him. Snow fell that night and blocked the roads and plaintiff could not go into the driveway with his automobile. Two or three days later plaintiff went to the premises, found his goods on an open porch of the dwelling, a stove was broken, and some of the goods had disappeared.
Randolph, on March 3, employed Robert Harper to go to the Smith farm and take and hold possession of it. Harper, on the same day, went with Randolph to the farm. When they arrived, Mr. Henshaw, defendant's "field man," was on the premises. On the next day Randolph, Henshaw, and Harper moved all of plaintiff's property from the dwelling and placed it in the yard near the driveway. Harper remained in possession for several days thereafter and until the defendant, by letter, notified him that the farm had been sold, and that he need not "stay there any longer." Smith and wife by deed dated March 2, 1931, acknowledged March 12, and filed for record March 27, conveyed the land to another. There was evidence showing that Randolph was defendant's agent and, as such, listed for sale land, among which was the Smith farm, with a real estate agent; that one of the tracts was sold by the latter agent and the commission therefor paid to him by or through Randolph.
The facts above stated are found in the evidence introduced on behalf of the plaintiff. The defendant did not offer any testimony.
The defendant contends the court erred in refusing its requested instruction in the nature of a demurrer to the evidence for the following reasons:
1. (a) That there was no evidence showing that defendant or any agent for it acting within the scope of his employment moved or caused plaintiff's furniture to be moved from the house; (b) that under the allegations of the petition plaintiff could not recover unless his property was injured in moving and that there was no evidence that any of said property was damaged in moving; (c) that plaintiff was a trespasser, had no right to place his furniture in the building, and defendant owed him no duty except not to willfully injure his property, and that there was no evidence that plaintiff's property was willfully injured by the defendant or the persons who removed it; and (d) plaintiff could have prevented "any loss by taking his property, by the exercise of reasonable care and at reasonable expense."
2. (a) That plaintiff's instruction 1 was erroneous in that it allowed a verdict for actual damages to plaintiff's property by the removal, and there was no evidence that plaintiff's property was damaged by the removal; (b) that the instruction purported to cover the whole case and did not require the jury to find that Smith was the owner or in possession of the farm or that he had the right to the possession thereof; and (c) there was no evidence that defendant or any authorized agent for it had rented the farm to plaintiff or given him permission to move into the house, and the instruction did not conform to the petition.
3. That the court erred in refusing defendant's requested instruction D-3 withdrawing the question of punitive damages, and erred in giving plaintiff's instruction 2 authorizing a verdict for punitive damages because there was no evidence warranting a recovery of punitive damages, and the verdict awarding punitive damages was excessive.
4. That the court erred in overruling defendant's motion for new trial because the verdict for punitive damages was excessive.
Randolph rented the farm to plaintiff upon the terms hereinbefore stated. Plaintiff, acting upon the agreement, put several tons of hay into the barn, brought his farm machinery to the farm, placed his household furniture in the dwelling house. Randolph evidently knew of the actions of plaintiff because he employed Harper to go to the farm, take and hold possession of it, and he and his coworkers moved plaintiff's goods from the dwelling and placed them in the yard. Thus Randolph was guilty of forcible entry and unlawful detainer. Section 2446, R.S.1929, Mo.St.Ann. § 2446, p. 2501. Did the...
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