Rohrmoser v. Household Finance Corp.

• Citation: 86 S.W.2d 103
• Decision Date: 20 September 1935
• Docket Number: No. 23632.,23632.
• Parties: MARJORIE B. ROHRMOSER, APPELLANT, v. HOUSEHOLD FINANCE CORPORATION (A CORPORATION), RESPONDENT.
• Court: Court of Appeal of Missouri (US)

86 S.W.2d 103

MARJORIE B. ROHRMOSER, APPELLANT, v. HOUSEHOLD FINANCE CORPORATION (A CORPORATION), RESPONDENT.

No. 23632.

St. Louis Court of Appeals. Missouri.

Opinion filed September 20, 1935.

Appellant's Motion for Rehearing Denied October 16, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

AFFIRMED.

Mason & Flynn for appellant.

(1) It is conceded that Lowry was the defendant's agent for the purpose of making collections on loans. The evidence shows that he visited the plaintiff's apartment for that purpose. In the insulting language that he used to the plaintiff and in the assault which grew out of and accompanied the use of that language there is nothing in the evidence to indicate that the defendant's agent had any other purpose than that of collecting the money which the plaintiff and her husband owed. Whether he acted wisely or unwisely, the defendant's business was being transacted in what was being done at the time of the assault, and the defendant is, therefore, liable. Chisholm v. Berg's Market, Inc., No. 22,995, decided by St. Louis Court of Appeals on Feb. 6, 1935, not yet reported; Haehl v. Wabash Ry. Co., 119 Mo. 325; Maniaci v. Express Co., 266 Mo. 633, 182 S.W. 981; Whiteaker v. Chicago, Rock Island etc. Ry., 253 Mo. 438, l.c. 457; Blumenfeld v. Meyer-Schmid Grocery Co., 206 Mo. App., l.c. 526, 230 S.W. 132; Upthegrove v. Walker, 7 S.W. (2d) 734; Gray v. Phillips Bldg. Co., 51 S.W. (2d) 181; Scott v. St. Louis-San Francisco Ry. Co., 52 S.W. (2d) 459. (2) In passing on the question as to whether or not a demurrer to plaintiff's evidence should have been sustained, this court should give the plaintiff the benefit of every favorable inference which can be drawn from plaintiff's testimony and indulge in no inference favorable to the defendant. Hall v. Manufacturer's Coal & Coke Co. (Mo. Sup.), 168 S.W. 927; Randol v. Kline's, Inc., 18 S.W. (2d) 500; Scanlon v. Kansas City, 28 S.W. (2d) 84.

Jones, Hocker, Gladney & Jones for respondent.

(1) Defendant's collection agent, Lowry, when assaulting the plaintiff, had stepped aside from his master's business and was not doing an act connected with the business, so that the defendant is not liable for such act, as the relation of master and servant did not exist as to the wrongful act. 18 Ruling Case Law 795, Sec. 254; Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. (2d) 739; State ex rel. Gosselin v. Trimble et al. (Mo.), 41 S.W. (2d) 801; Phillips v. Western Union Tel. Co., 270 Mo. 676 (Mo. en banc); Ritchey v. Western Union Tel. Co., 41 S.W. (2d) 628 (K.C. Ct. App.); Collette v. Rebori, 107 Mo. App. 711 (St. L. Ct. App.); Shelby v. Metropolitan Street Railway Co., 141 Mo. App. 514 (K.C. Ct. App.); Smothers v. Welch & Co. House Furnishing Co., 274 S.W. 678 (Mo.); Priest v. F.W. Woolworth, 62 S.W. 926 (Springfield Ct. App.). (2) The court did not err in withdrawing the case from the jury, as the evidence was free from conflict and admits of but one conclusion. Wendorff etc. v. Mo. State Life Ins. Co., 318 Mo. 363; State ex rel. Gosselin v. Trimble et al., 41 S.W. (2d) 801 (Mo.).

HOSTETTER, P.J.

This suit was begun by plaintiff in the Circuit Court of the City of St. Louis, Missouri, on November 27, 1932, by the filing of her petition, naming the Household Finance Corporation and Earl Lowry as defendants. Later, the petition was amended by dismissing as to Lowry and reducing her prayer for damages to $1000 actual and $2000 punitive damages.

Her amended petition in substance averred the following:

That the defendant is a Missouri corporation engaged in the loan business in St. Louis city and elsewhere; that on March 16, 1932, she and her husband were indebted to defendant in the sum of $210, being a balance due on a $300 loan theretofore made to them, the payment of which was secured by a chattel mortgage on their household furniture, and on and prior to said date, one Earl Lowry, being in the employ of defendant corporation as its collector, repeatedly and at intervals while representing defendant, called at plaintiff's home in the daytime and in the absence of her husband for the alleged purpose of collecting the balance due on said loan; that on said date Lowry, in his capacity as collector, called at the apartment occupied by plaintiff and her husband at 5611 Enright Avenue in St. Louis City and knocked at her door; that plaintiff at that time was ill in bed; that she had a chain protector on the door and in response to Lowry's knock she arose and partially opened the door; that Lowry requested admittance stating that he had come to see plaintiff about said indebtedness; that she excused herself, closed the door, dressed, put the room in order and admitted Lowry; that he then asked her when she was going to pay the loan and she replied that she didn't know just when it could be paid, that she and her husband were not able to pay it at that time; that thereupon Lowry said to plaintiff, in substance, "Who is paying your bills for you; I know plenty of men who would be glad to pay your bills for you;" that thereupon she arose to her feet and demanded what Lowry meant and that, thereupon, he seized her by the hand with one of his hands and with the other caught the collar of her dress and tore it entirely down the front and inflicted bruises upon her right hand and upon her chest; that said assault was made by him in the course of his employment as collector for defendant corporation and that as a result of same she suffered great pain, humiliation and derangement of her nervous system, etc., for more than a month following.

The answer was a general denial.

The facts as developed by testimony adduced by plaintiff and on her behalf, were as follows:

The loan in controversy was originally for $300 and was contracted in April, 1931, the note being signed by both husband and wife and a chattel mortgage on their furniture to secure the payment of same was given and the loan was to be paid off in monthly installments. The mortgaged furniture was in storage. They had been making payments each month, but tardily, until the indebtedness was reduced to $210; that Lowry had been coming to make the monthly collections since January, 1932; that when Lowry made his first call she advised him that her husband had been in the hospital under an operation and they couldn't pay the loan and to go ahead and sell the furniture and if it didn't bring enough they would pay the balance and that Lowry replied that the company didn't want the furniture, that it wanted the money; that he used to come once or twice a week; that on March 16, 1932, he called between 12:30 and 12:45; that she had a chain on the door to the room and when Lowry knocked she peeped out and saw who it was and said "Pardon me for just a moment" and Lowry said, "All right," then she shut the door and straightened up her bed, put the chair in place and opening the door said: "Mr. Lowry, I am awful sorry to keep you waiting in the hall; I am sick today and don't feel like talking business, and I had to fix my bed up before I could talk to you," and he said: "That wasn't necessary to make your bed; you could lie right there in bed while I am here;" and looked at her with a silly grin on his face and it rather made her mad.

On interrogation on cross-examination about what her inference was when Lowry made this remark she admitted that she understood that he was making some sort of a covert advance towards her and was thinking of himself in relation to her and that she didn't think that was right for her to remain in bed while he was there. She further said that she had a headache and was billious and that he sat there and said: "I want to ask you a few personal questions," and that she said: "All right, what are they?" and that he said: "Well, who is paying your rent here?" and that she said: "We are in arrears we are not paying rent," and he said: "Who is feeding you?" and that she said: "Well, the money we are getting is a few dollars off the paper (her husband was running a small independent labor paper) and I am working extra at Grand Leader and that sets our table;" that he said "Who is buying your clothes?" and she said: "I haven't any new clothes, I am wearing clothes to work in that I am ashamed of;" that he looked at her and said: "Well, Mrs. Rohrmoser, I have a personal question. I know of a lot of men here in St. Louis that would pay to be with you," and she said: "What did you say?;" that he was then sitting on the north side of her and she was sitting on a chair right by a bay window on the southwest corner and that he made that remark twice; that she got it at first, but that it made her so mad she wanted him to repeat it to make sure; that by that time he got up and came to her and grabbed her dress, tore it clear down and grabbed her little finger and his finger nail went in there and made quite a deep gash and that by him getting her dress he bruised her on the chest and that she said: "You get up and get right out and don't ever come back here again" and that he said: "Oh yeah!" and at that time the door bell rang; that the person was Bernard Egan who lived in another part of the same apartment house and that she said "Oh, Bernard, I am so glad you are here;" that by that time she was crying and hysterical to think that a man would come into her home and assault her; that after Mr. Egan came in he said to Mr. Lowry: "Why, don't you know Mrs. Rohrmoser is sick today?" and Lowry said: "I am with the Household Finance Corporation and these people owe us money, I am here to collect it;" that Egan said: "The best thing you can do is to get your hat and get out. You can see she is sick, the condition she is in;" and that then Mr. Lowry left.

On cross-examination when asked to give her understanding of his queries about who was paying her bills and buying her clothes and food, etc., as to whether he was speaking for himself, she replied that sh...