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

• Decision Date: 19 August 1933
• Citation: 62 S.W.2d 926,228 Mo.App. 23
• Parties: NONA G. PRIEST, RESPONDENT, v. F. W. WOOLWORTH FIVE AND TEN CENT STORE, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

62 S.W.2d 926

228 Mo.App. 23

NONA G. PRIEST, RESPONDENT, v. F. W. WOOLWORTH FIVE AND TEN CENT STORE, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

August 19, 1933

Appeal from the Circuit Court of Butler County.--Hon. Robert I Cope, Judge.

Reversed and remanded.

Henson & Woody for appellant.

Phillips & Phillips and L. R. Tedrick for respondent.

BAILEY J. Allen, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is an action to recover damages for alleged injuries charged to have been the result of an assault upon plaintiff by the assistant manager of defendant in its store located in Poplar Bluff, Missouri. On trial to a jury plaintiff recovered a judgment in the sum of $ 3000 actual damages and defendant has appealed.

One of the errors assigned is that the trial court refused an instruction in the nature of a demurrer to the evidence offered at the close of the whole case. Looking to the evidence we find the facts most favorable to plaintiff to be substantially as follows: At the time of the accident which occurred on the 11th day of June, 1932, plaintiff was about twenty-three years of age and unmarried. Defendant corporation conducted a five and ten cent store in Poplar Bluff and had in its employ at the time as assistant manager of the store a young man named Hollis George, about nineteen years of age. Plaintiff entered the store of defendant in the evening of the day of the accident for the avowed purpose of making a purchase. Plaintiff testified that she was standing at a counter trying on some hats; that, "Mr. George came up, took me by the shoulders and bent me back over the counter. He bent me back until my feet was clear off the floor and the back of my head was on top of the counter. When I started to raise up, I said, 'Oh, let me up, you are hurting me,' and he bent me back again. When he finally let me up I told him my back felt like it was broke, and I said, 'I was going to spend twenty cents, but I am not going to spend anything now,' and I went out. I went in to buy something. This was about 7:30 on Saturday night. They close Saturday nights about 10 o'clock. I don't know how high the counter is, it hit me about the waist line, that is, the piece of glass sticking up on the edge of the counter. This glass is used to separate the merchandise and keep it from falling off. He bent me back twice. Had no conversation with him before that time, did not know he was there, did not see him until he had bent me back on the counter. I had never been out with him or had any dates. Was a good friend to the bookkeeper, and saw him in the store. One time before that he grabbed me by the arm when I was talking to the bookkeeper and another time as I was going out of the store. All without my consent. This glass stuck up about four inches above the counter."

On cross-examination she testified as follows:

"Defendant's store is about a block from the place where I worked at the time. I had a habit of going to defendant's store and the bookkeeper, Mrs. Stewart, and I would go home together living in the same part of town. It was not my habit all the time to go into the store as a customer. Sometimes when I was in there I would see Mr. George, and sometimes not. We were not well acquainted. He was of a smart nature. After he had grabbed me by the arm and twisted it, I would not speak to him when I saw him. I do not think he was mad at me; I think he was just smart. I do not know that he wanted to injure me. I have seen him cutting up with girls in the store."

Mary Priest, a sister-in-law of plaintiff, testified that she saw the accident; that Mr. George took hold of plaintiff's shoulders and bent her back over the counter until her head touched and that she told him to let her up that he was hurting her; that he let her up and walked away; that he was supervisor over the salesmen and would act as salesman himself at times; that Mr. George was rather a jolly sort and that there was nothing to indicate he was "mad" at the time but the act was done in a kind of "playfulness."

Hollis George, a witness for defendant, testified on cross-examination as follows:

"I was assistant manager at the time. I do not know why I was back at the counter where plaintiff was on that occasion; just happened to come up. I did not know that she was going to make a purchase; did not see anything in her hands. I do not know whether she had on a hat or not at the time. I had gotten acquainted with her about four months before that time. I never went out with her. When I took hold of her she had her back to the counter. The counter is about 26 inches from the floor and the glass stuck up about 2 1/2 inches. I just pushed her back, bent her back over the counter. I do not believe her head touched the counter; I would not say that it did not. I know her feet did not come up off the floor, for I was standing right in front of her and would have felt them if they had. She did not say that I was hurting her. I know some one was there when I walked up, but I do not know who it was. They were laughing and talking. Do not remember anything she said at the time. There was no purpose in taking hold of her hands and pushing her back; did it in a kidding and joking manner. I am not in a habit of doing what I did then. I weigh about 180, and about six feet tall. The counter is 36, instead of 26 inches. That is the actual measurement."

The foregoing is substantially all the evidence in the case as to the circumstances under which the accident occurred. Defendant urges that the act of George Hollis complained of was without the scope of his employment, had no connection with the business of his principal and that...