Priest v. F. W. Woolworth Five & Ten Cent Store

• Decision Date: 16 June 1937
• Docket Number: No. 5758.,5758.
• Citation: 106 S.W.2d 936
• Court: Missouri Court of Appeals
• Parties: PRIEST v. F. W. WOOLWORTH FIVE & TEN CENT STORE et al.

106 S.W.2d 936

PRIEST v. F. W. WOOLWORTH FIVE & TEN CENT STORE et al.

No. 5758.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Rehearing Denied July 8, 1937.

Appeal from Circuit Court, Stoddard County; J. V. Billings, Judge.

Action by Nona Priest against F. W. Woolworth Five & Ten Cent Store, a corporation, and another. From an adverse judgment, defendants appeal.

Reversed.

Henson & Woody, of Poplar Bluff, for appellants.

L. E. Tedrick and Phillips & Phillips, all of Poplar Bluff, for respondent.

SMITH, Judge.

This is a suit for alleged personal injuries. The petition, caption and signature omitted, is as follows:

"Plaintiff states that the defendant, F. W. Woolworth Five and Ten Cent Store (hereinafter referred to as `Defendant Corporation') is and was at all the times herein mentioned a Corporation duly organized and existing and as such conducting a Five and Ten Cent Store in Poplar Bluff, Missouri, and that the defendant Boy Weiner was at all such times General Manager of said store and in charge of the same and its employees, and that at said time one Hollis George was an employee of said defendants and under the management and supervision of defendant Boy Weiner, General Manager of defendant Corporation's store, as aforesaid.

"Plaintiff states that on and prior to the 11th day of June, 1932, the defendants Boy Weiner and the Defendant Corporation negligently employed, kept and maintained in their employ and permitted and allowed to be and remain in said store as an employee at the time aforesaid, and for sometime prior thereto, a dangerous and improper person to-wit, one Hollis George, who was accustomed to attack, assault, fondle and attempt to pet female customers who would come to trade at defendant corporation's store, all of which facts were well known to the defendants and each of them or had existed for such a length of time prior to said date that they could have been known to them by ordinary care in time to have prevented plaintiff's injuries as hereinafter set out.

"Plaintiff further states that on said 11th day of June, 1932 she was a customer in said store and that thereupon said Hollis George, who with the knowledge, consent and approval of defendants was then and there in defendant Corporation's store and acting as one of its employees, through the negligence of said Boy Weiner and the defendant Corporation aforesaid, did then and there wrongfully, unlawfully, wilfully, licentiously and maliciously assault plaintiff by catching hold of her person and bending her back over one of the tables or counters in said store and over an upright glass guard thereon in a rude, violent overbearing and lustful manner and that as a result thereof plaintiff's back, lower spine and hips were sprained, strained and permanently injured and weakened; plaintiff's spine and the vertebrae thereof were rotated, subluxated and permanently injured and the nerves leading therefrom to plaintiff's vital internal organs were impinged and said nerves and said organs as a result thereof were and are permanently crippled, injured and diseased and their functions and usefulness permanently impaired; that plaintiff's womb was and is permanently forced from its proper place and position and was permanently injured, weakened crippled and diseased and its functions and usefulness permanently impaired; that plaintiff's monthly periods were permanently caused to be irregular and exceedingly painful and as a result of said injuries plaintiff's fallopian tubes became injured and diseased to such an extent that it will be necessary to remove the same by a major surgical operation. Plaintiff further states that as a result of said injuries she will be unable to conceive or give birth to a child.

"Plaintiff further states that by reason of the premises she has and in the future will continue permanently to suffer great physical pain, humiliation, disgrace and mental anguish, to her actual damages in the sum of Two Thousand Five Hundred Dollars ($2,500.00), and punitive damages in the sum of Five Hundred Dollars ($500.00).

"Wherefore, the premises considered, plaintiff prays judgment against the defendants for the sum of Two Thousand Five Hundred Dollars ($2,500.00) actual damages, and for the sum of Five Hundred Dollars ($500.00) punitive damages, and for costs."

The answer is as follows:

"Now comes defendant, F. W. Woolworth Five and Ten Cent Store, a corporation, and for its separate answer to the petition of plaintiff filed herein, and admits that it is a corporation.

"Further answering, defendant denies each and every other allegation, matter and thing in said petition set out and pleaded, and prays judgment.

"For another and further answer and defense, defendant states that whatever cause of action, if any, plaintiff ever had against it by reason and on account of the matters and things, and the acts and conduct set out and pleaded in her petition herein, was fully and finally adjudicated against her by the decision, ruling and judgment of the Springfield Court of Appeals in the case of Nona G. Priest v. F. W. Woolworth Five & Ten Cent Store, a corporation, rendered and handed down on August 19, 1933, and reported in 228 Mo.App. 23, 62 S.W.(2d) at page 926, which decision, ruling and judgment, together with the mandate of said court issued pursuant thereto, is as follows:"

The answer then sets out in full the opinion of this court found in 228 Mo.App. 23, 62 S.W.(2d) 926, with the mandate of this court as certified by the clerk of this court. The answer then continues, as follows:

"and defendant here and now pleads said decision, ruling, judgment and mandate in bar of this action.

"Further answering, defendant states that plaintiff seeks in this action to recover for the same alleged injury which he sought to recover for in the suit above set out, and that the same measure of damages applies; that all of the matters and things set out and pleaded in her petition herein existing were known to plaintiff and her counsel, or by the exercise of ordinary care and diligence on their part could have been known to them when plaintiff filed the original suit, and at the time said...