Presley v. Central Terminal Co.

• Decision Date: 02 July 1940
• Docket Number: No. 25039.,25039.
• Citation: Presley v. Central Terminal Co., 142 S.W.2d 799 (Mo. App. 1940)
• Parties: PRESLEY v. CENTRAL TERMINAL CO. et al.
• Court: Missouri Court of Appeals

142 S.W.2d 799

PRESLEY v.CENTRAL TERMINAL CO. et al.

No. 25039.

St. Louis Court of Appeals. Missouri.

July 2, 1940.

Rehearing Denied September 13, 1940.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Suit by Frank Presley against the Central Terminal Company and others, wherein suit was dismissed against three defendants, and verdict and judgment were rendered in favor of individual defendant, but against the named defendant, and defendant appeals.Transferred from the Supreme Court.

Reversed.

A. A. Alexander and T. J. Crowder, both of St. Louis, for appellant.

Dubinsky & Duggan, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was originally instituted by respondent, who will be referred to as plaintiff, against four corporate defendants and one individual defendant.Plaintiff prayed damages for personal injuries growing out of an alleged assault and battery.Prior to the trial, plaintiff dismissed his action against all the defendants except appellantThe Central Terminal Company, hereinafter called Terminal Company, and Oscar Puckett, the individual defendant.The cause was tried before the court and a jury, resulting in a verdict and judgment in favor of the individual defendantOscar Puckett and in favor of plaintiff and against the defendantTerminal Company for $2,500 actual and $2,500 punitive damages.

Plaintiff's motion for a new trial as to defendantOscar Puckett was overruled, and he duly appealed to the Supreme Court.The defendantTerminal Company filed a motion in arrest of judgment, which was overruled by the trial court, and that defendant duly appealed to this court.Thereafter, on motion of the Terminal Company, this court transferred that defendant's appeal to the Supreme Court, where plaintiff's appeal against defendantOscar Puckett was pending.In the Supreme Court, upon motion of the defendantTerminal Company, the two appeals were consolidated.Plaintiff thereafter dismissed his appeal as to defendant Puckett in the Supreme Court and later filed a motion to transfer the defendantTerminal Company's appeal back to this court, which motion the Supreme Court sustained, so that the cause is now before this court solely on the appeal by the defendantTerminal Company from the judgment against it in favor of plaintiff.

Plaintiff's amended petition, upon which the cause went to trial, alleged that defendantOscar Puckett, on October 31, 1933, committed an assault and battery upon the person of plaintiff whereby plaintiff sustained serious injuries to his person; that, at the time of said assault and battery, defendantOscar Puckett was then and there the agent and employee of the defendantTerminal Company; that said assault and battery occurred on the premises of the Star Chronicle Publishing Company at 12th and Delmar Avenues in St. Louis, Missouri, where a building was being constructed; that said Oscar Puckett, while in the scope of his employment and the course of his duties as agent and employee of the defendantTerminal Company, committed said assault and battery by striking plaintiff, with a two-by-four piece of lumber, on the side of plaintiff's head and face.The amended petition also alleged that plaintiff was kicked on the right ankle and was knocked to the ground by said Puckett, whereby plaintiff sustained severe and permanent injuries.

Each of the two defendants mentioned filed a separate answer to plaintiff's amended petition containing general denials coupled with specific denials of the averments of plaintiff's petition, as well as allegations that whatever injuries, if any, were sustained by plaintiff on the occasion and by virtue of the matters and things set forth in plaintiff's amended petition, occurred while plaintiff was a trespasser upon the premises mentioned in plaintiff's amended petition.The answers denied that the alleged assault and battery upon plaintiff by defendantOscar Puckett was without just cause or provocation, and averred that, while said Oscar Puckett was on said premises, plaintiff, with force, intimidation and violence accompanied by threats, did unlawfully, feloniously and maliciously seize the person of said Oscar Puckett and did assault, strike and beat the person of said Oscar Puckett without any cause or provocation; and that the said Oscar Puckett, being then and there in fear for the safety of his life and person and having reasonable cause to believe he was in imminent danger of great bodily harm and of death, did, in the necessary defense of his life and his person, strike the plaintiff; and that any injuries resulting to plaintiff were caused by plaintiff's assault and battery upon the person of said Oscar Puckett.

In addition to the foregoing matters, which were contained in the answers of both defendants, the defendantTerminal Company specifically alleged that, while defendantOscar Puckett was upon private property surrounded by a fence, within an area where a building was being constructed, and when said Oscar Puckett was in the act of leaving said private property upon his way to midday lunch, having theretofore left his employment and while on a mission of his own personal business and was not about any business or mission of defendantTerminal Company, plaintiff approached said Oscar Puckett in a belligerent and quarrelsome manner and made an assault upon said Puckett and thereby caused and brought on the matters and things in the manner and under the circumstances alleged in the answers of both defendants as heretofore set forth.

DefendantTerminal Company contends that the court erred in overruling its motion in arrest of judgment and in rendering the judgment against it on the verdict of the jury, for the reason that the jury found a verdict in favor of defendantOscar Puckett and thereby absolved the defendantTerminal Company from liability.

Plaintiff, answering the contention of the defendantTerminal Company, asserts that the question raised by said defendant is not before this court because defendant failed to file a bill of exceptions.Plaintiff argues that the action of the court on the motion in arrest of judgment cannot be reviewed by this court absent a bill of exceptions.

It has been held by our Supreme Court in banc that the statute, Section 1061, R.S.Mo.1929, Mo.St.Ann. § 1061, p. 1346, which precludes the taking of exceptions to proceedings unless they have been expressly decided by the lower court, does not apply to errors which appear upon the face of the record; and that all errors appearing on the face of the record proper must be considered by the court on appeal even though no motion in arrest of judgment was filed.City of St. Louis v. Senter Commission Co., 340 Mo. 633, 102 S.W.2d 103.While it is true defendantTerminal Company in the case at bar did not file any motion for a new trial and did not file any bill of exceptions, it is not precluded from having the error complained of considered by this court for the reason that said alleged error appears on the face of the record proper.City of St. Louis v. Senter Comm. Co., supra.Defendant's motion in arrest of judgment did call the attention of the trial court to its error in entering judgment against defendant upon what we must hold was an erroneous verdict rendered by the jury.However, such motion in arrest of judgment was not a necessary prerequisite to an appeal because it is provided by statute, Section 1018, R.S.Mo. 1929, Mo.St.Ann. § 1018, p....