Seago v. Paul Jones Realty Co.

• Decision Date: 03 November 1914
• Docket Number: No. 13773.,13773.
• Citation: 170 S.W. 372
• Parties: SEAGO v. PAUL JONES REALTY CO.
• Court: Missouri Court of Appeals

170 S.W. 372

SEAGO v. PAUL JONES REALTY CO.

No. 13773.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

Rehearing Denied November 17, 1914.

1. TRIAL (§ 248) — INSTRUCTIONS — PROPOSITIONS OF LAW.

In trespass, where defendant procured plaintiff's ejection by a constable from a building of which she was in rightful possession, the striking from an instruction informing the jury that, unless the constable acted as the agent of defendant, it was not liable, the further statement that a constable does not, by performing statutory duties, become the agent of an individual was not error, as the last statement was a mere abstract proposition, not applied concretely to the case.

2. TRIAL (§ 232) — INSTRUCTIONS — PUNITIVE DAMAGES — "WANTONLY" — "CARELESSLY."

In trespass, where punitive damages were claimed because the trespass was wanton, an instruction defining the term "wantonly" as recklessly and carelessly, without regard to the legal rights of another, is not erroneous in the use of the word "carelessly," for wantonly implies disregard of the rights of others, as where a thing is recklessly done, and carelessly, which means without care, did not improperly qualify the term.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Gertrude Seago against the Paul Jones Realty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wilkins Jones and Blodgett & Rector, all of St. Louis, for appellant. Claud D. Hall, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of a trespass on the part of defendant. Plaintiff recovered both actual and punitive damages, and defendant prosecutes the appeal.

Defendant, an incorporated company, is engaged in the real estate business in St. Louis, and plaintiff, desiring to rent the residence numbered 3032 Locust street, communicated the fact to defendant on March 21, 1912. One Gough was then a tenant in the property, but had defaulted in the payment of rent, and defendant had brought suit against him for possession of the premises and recovered a judgment therefor in a court of a justice of the peace. It seems that execution had been issued on the judgment against Gough, and defendant expected to obtain possession of the premises through the ouster of Gough on Saturday, March 23d. These facts were discussed, it is said, between plaintiff and the president of defendant real estate company, whereupon an agreement was reached through which plaintiff rented the property at the stipulated price of $45 per month, plaintiff's term to commence as soon as possession could be had, but she paid $20 on the rental at that time and took a receipt therefor.

The evidence for plaintiff tends to prove that she had purchased the household goods of Gough, the then tenant in the residence, and intended to maintain and conduct a rooming house there. It was agreed that, as soon as Gough be dispossessed, plaintiff should immediately take possession. Plaintiff says she communicated a second time with the president of defendant company on March 22d, and urged that possession be given as soon as possible. On the occasion of this conversation, she stated a second time that she had purchased the furniture in the residence and requested that it be not disturbed. Plaintiff says she saw the president of defendant company in its office on Saturday morning, March 23d, and inquired when Gough would be out of the premises, and that defendant's president said to her he thought he could get him out by 10 o'clock that morning, and that plaintiff could take possession immediately thereafter. Plaintiff says she then told defendant's president again that she had purchased the furniture in the premises and did not want it moved out; that, in response to this, defendant's president said:

"All right, I will see about that. I have a man out now seeing about that, and you either call back here or ring me up about 10 o'clock, and I will let you know, and you can get the keys and take possession."

About 10 o'clock on the same day, Saturday, March 23d, according to the evidence of plaintiff, she telephoned to the president of defendant company that Gough, the former tenant, was out of the premises, and that all of his property that remained therein was a trunk, and requested that defendant send some one out to collect the balance of the rent, so she could take immediate possession. In this conversation it is said the president of defendant company stated that he could not send any one out at that time, but that it would be satisfactory for plaintiff to get the keys from Essick, take possession at that time, and call at defendant's office and pay the balance of the rent the following Monday. Plaintiff says she then procured the keys from Essick and took possession, as instructed by defendant. About the same time in the morning, McConnell, a deputy constable, came with a writ for the purpose of ejecting Gough, the former tenant, and he was informed that Gough had quit possession and sold the furniture to plaintiff. Plaintiff informed the deputy constable that she had purchased the household goods and rented the premises, and exhibited her receipt for a payment on the rent to him. Thereupon the deputy constable returned to his office and informed his superior officer of the situation. Between 1 and 2 o'clock in the afternoon of the same day, McConnell, the deputy constable, received the following written instruction from defendant, which, it appears, was left at the constable's office by Mr. Topping, having charge of the rental department for defendant:

"Execute the within writ; we want possession of the property, 3032 Locust street, in accordance with judgment. Paul Jones Realty Co., per H. V. Topping. St. Louis, Mo., March 23, 1912."

McConnell, the deputy constable, says he returned to the premises and commenced removing the furniture under these instructions. It...