Raybourn v. Gicinto

• Decision Date: 07 October 1957
• Docket Number: No. 22628,22628
• Citation: 307 S.W.2d 29
• Parties: Maynard RAYBOURN, Respondent, v. Joseph GICINTO, Jr., d/b/a Paramount Tavern, Appellant.
• Court: Missouri Court of Appeals

Page 29

307 S.W.2d 29

Maynard RAYBOURN, Respondent, v. Joseph GICINTO, Jr., d/b/a Paramount Tavern, Appellant.

No. 22628.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1957.

George V. Aylward, Kansas City, William B. Teasdale, Kansas City, of counsel, for appellant.

Williams & Norton, North Kansas City, for respondent.

SPERRY, Commissioner.

This is a suit for personal injuries growing out of alleged assault and battery. Plaintiff had a verdict and judgment in the amount of $1,500. Defendant appeals.

Plaintiff testified to the effect that, at the time of the trial, September, 1956, he was 30 years of age, married and lived in Kansas City, Missouri; that he was, and had been since April, 1952, a switchman for the Southern Railroad; that, on October 18, 1954, he left his home and proceeded by bus to 12th and Walnut, in Kansas City, intending to buy a railroad jacket, and then to attend a union meeting near there; that he walked eastward, looking for the only store that stocked the jacket he intended to buy; that, when he reached the corner of 12th and Holmes he realized that the store was not farther east, and that, in any event, it was closed; that it was then about 6:30 to 7:00 p. m.; that he entered defendant's tavern, located at the southeast corner of that intersection; that the entrance is not on either side of the building, but is at the northwest corner, the doorway facing northwest, with a post running from the floor to the roof, at the corner; that the long part of the bar is along the east side; that he walked to the south, around to the south end of the bar, ordered, paid for, and was served a beer; that defendant was behind the bar and served him; that the men's room is in the southeast corner of the bar room; that the telephone booth is to the right of the door; that two men came from the men's room and, as he partially turned, one of them looked at him and recognized plaintiff as the man who had caused his arrest, about a week before that, for having stolen his billfold a year and a half before; that he only knew the man as 'Don,' having seen him but twice prior to this; that 'Don' (who was later identified as Don Chaney) immediately started an argument and struck plaintiff; that his companion assisted Chaney and a scuffle ensued; that defendant came from behind the bar and 'threw them out' at the front door, telling them that if they didn't quit coming in and causing trouble he would bar them completely.

After Chaney's ejection plaintiff started walking toward the front door. He said that he saw the men immediately outside of the door, looking in and waiting for plaintiff; that he met defendant 'coming back' and asked defendant to call the police, offering a dime for the telephone; that defendant refused to do so; that plaintiff threw the dime on the bar and asked another man back of the bar to call the police; that defendant said that he didn't want the police, whereupon plaintiff took the dime and started toward the telephone to make the call; that defendant seized him by the arms and 'threw me out of the tavern into their arms'; that 'I was hit as I was shoved out'; that these two men continued striking and beating him for several minutes.

It was shown by plaintiff's testimony, and by the medical evidence, that plaintiff received a broken rib, causing partial collapse of one lung; that he was hospitalized for three weeks and lost six weeks pay, valued at $600; that he was treated at a doctor's office for several months; that as a result, he will always be susceptible to pleurisy. However, no point is made as to the amount of damages awarded.

Defendant testified to the effect that he was not at the tavern when the occurrence took place; that an employee, since deceased, was in sole charge of the tavern on that date, at that time; and that the first he heard about the matter was when he was served with process herein.

He offered the testimony of Capo, who stated that he was defendant's part time employee and was in the tavern on this occasion; that defendant was not present; that one Montilone was behind the bar, alone; that he saw plaintiff and Chaney scuffling; that he and another man 'broke up' the scuffle and put Chaney out; that he did...