Simmons v. Kroger Grocery & Baking Co.

• Decision Date: 21 April 1937
• Docket Number: 34309
• Parties: Leaburn Simmons, an Infant, by John Simmons, His Next Friend, v. Kroger Grocery & Baking Company, a Corporation, and George Blodgett, by Louis P. Wagner, Jr., His Guardian Ad Litem, Appellants
• Court: Missouri Supreme Court

104 S.W.2d 357

340 Mo. 1118

Leaburn Simmons, an Infant, by John Simmons, His Next Friend, v. Kroger Grocery & Baking Company, a Corporation, and George Blodgett, by Louis P. Wagner, Jr., His Guardian Ad Litem, Appellants

No. 34309

Supreme Court of Missouri

April 21, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Affirmed.

Jones Hocker, Gladney & Jones, Web A. Welker and Vincent L. Boisaubin for Kroger Grocery & Baking Company Leahy, Walther, Hecker & Ely of counsel.

(1) A clerk in a grocery store in taking after and chasing a boy standing on the sidewalk looking through the window of the store, he erroneously believing the boy to be smearing soap on the window of the store, and in overtaking the boy over a block away from the store and violently assaulting him, saying to him, "'I'll teach you to rub soap on the window," and the clerk having no authority, by virtue of his employment, to use any force to protect the property of his employer, is acting without the scope of his duties and the master is not liable for the assault under the doctrine of respondeat superior. Haehl v. Ry. Co., 119 Mo. 325; Maniaci v. Interurban Express Co., 266 Mo. 633; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Smothers v. Welch & Co. H. F. Co., 310 Mo. 144; Rohrmoser v. Household Fin. Corp., 86 S.W.2d 103; Priest v. Woolworth Co., 62 S.W.2d 926; Meredith v. Fehr, 90 S.W.2d 1021, 262 Ky. 648; John v. Lococo, 76 S.W.2d 897, 256 Ky. 607; Brown v. Railroad Co., 207 P. 196; Muller v. Hillenbrand, 125 N.E. 808, 227 N.Y. 448; Guille v. Campbell, 49 A. 938, 200 Pa. St. 119; Daniel v. Excelsior Auto Co., 121 S.E. 692; Kinnomen v. Ry. Co., 158 N.W. 1058; Zaitz v. Drake-Williams Mount Co., 185 N.W. 424; 39 C. J., p. 1306, sec. 1506. (2) Declarations of an agent made after the event and forming no part of the res gestae are inadmissible to bind the principal and an oral instruction to the jury, at the close of plaintiff's case, to disregard highly prejudicial testimony of this sort previously erroneously admitted, does not cure the error or remove the poisonous effect of the testimony. Redmon v. Met. St. Ry. Co., 185 Mo. 1; Williams v. Gideon-Anderson Lbr. Co., 224 S.W. 52; Parr v. Ill. Life Ins. Co., 165 S.W. 1152; State v. Matsinger, 180 S.W. 856. (3) Punitive damages against a corporate master liable for actual damages for an assault by its servant, under the doctrine of respondeat superior, should not be allowed in the absence of a showing that the master was a common carrier, or public service corporation owing a special duty to the public, or in the absence of a showing that the master concurred in the assault or actually participated therein, or was negligent in employing a servant of known vicious and ill-tempered propensities. There should be a basis in fact for the imposition of penalties and punishments. Maliciousness may not be inferred from mere negligence. Evans v. Railroad Co., 233 S.W. 397; Reel v. Consolidated Inv. Co., 236 S.W. 43.

Eagleton, Waechter, Yost, Elam & Clark and Berryman Henwood for respondent.

(1) The positive evidence that defendant Blodgett assaulted plaintiff while acting within the scope of his duties and under the direction of the manager of the store made a clear case for the jury on the issue of defendant Kroger Company's liability, and the demurrer to the evidence was, therefore, properly overruled. 2 C. J. 854; Garretzen v. Duenckel, 50 Mo. 107; Snyder v. Railroad Co., 60 Mo. 410; Haehl v. Ry. Co., 119 Mo. 339; Farber v. Ry. Co., 139 Mo. 272; Maniaci v. Express Co., 266 Mo. 650; Canfield v. Railroad Co., 59 Mo.App. 354; Langer v. Ry. Co., 85 Mo.App. 28; Curtis v. Ry. Co., 99 Mo.App. 502; Compler v. Tel. Co., 127 Mo.App. 553; Doyle v. Clearing Co., 31 S.W.2d 245. (2) The error in admitting the testimony of plaintiff's witness Mrs. Rosabelle Goforth was cured by the subsequent withdrawal of that testimony and the instruction to the jury to disregard the same. Harrison v. Electric Light Co., 93 S.W. 951; Stauffer v. Ry. Co., 147 S.W. 1032; Salmons v. Ry. Co., 197 S.W. 35; Gray v. Shelton, 282 S.W. 53; State v. Parsons, 2 S.W.2d 785; School District v. Power Co., 46 S.W.2d 174; Stith v. Newberry Co., 79 S.W.2d 447; Newman v. Marceline, 6 S.W.2d 659; McCarter v. Barger, 6 S.W.2d 979; Karst v. Fraternal Life Assn., 40 S.W.2d 732; Robinson v. McVey, 44 S.W.2d 179; Eth v. Kansas City, 63 S.W.2d 203; Mayton v. Cummins, 260 F. 74. (3) The positive evidence that plaintiff was willfully, wantonly and maliciously assaulted by Blodgett while acting within the scope of his duties as the servant of defendant Kroger Company clearly entitles plaintiff to an award of substantial punitive damages against defendant Kroger Company. 17 C. J., pp. 968, 976, 985, 995-996; Haehl v. Ry. Co., 119 Mo. 342; Carp v. Ins. Co., 203 Mo. 325; Irons v. Express Co., 300 S.W. 283; Daniel v. Petroleum Co., 73 S.W.2d 355; Priest v. Ry. Co., 77 S.W.2d 120; Canfield v. Ry. Co., 59 Mo.App. 354.

OPINION

Collet, J.

Action to recover damages for personal injuries. There was a verdict and judgment for $ 9,333 actual and $ 9,888 punitive damages against the Kroger Grocery & Baking Company and George Blodgett. This appeal is from that judgment.

Appellants summarize the facts supporting the verdict as follows:

"So considered (in the light most favorable to plaintiff) it appears that the plaintiff and his cousin Senneth were, on the evening of October 31, 1931, Hallowe'en evening, although only about nine years old, taking part in the spirit of the occasion when ghosts and goblins are supposed to walk and boyish pranks run riot, and were roaming the streets in the neighborhood of their homes and of the Kroger store at Thirteenth and Hickory streets. At about five or ten minutes after nine o'clock of that evening, they were peeking into the store window to see the time by the store clock. To effect their vision they had rubbed off a bit of soap that had been smeared by others on the window. The manager, inside of the store, pointed to the window, and apparently, from the motion of his lips, said something to George Blodgett, the clerk, who was sweeping out the store. What, if anything, was said, does not appear. George Blodgett, the clerk, then came out of the store and told the lads to 'Get away from here and cut that out.' At that the boys looked around and he said, 'I mean it.' Thereupon the boys ran and George after them. The boys ran east on the south side of Hickory Street to a point about midway to the next block at Frey Avenue, crossed the street where the alley from the north comes into Hickory Street and continued on down the north side of Hickory Street, Senneth Mobley in the lead and Leaburn Simmons, the plaintiff, behind him, followed by Blodgett. When the boys reached the corner of the next street at Frey Avenue, Blodgett overtook Leaburn, Senneth being ahead and having slipped into a doorway on the west side of Frey Avenue about five or six steps north of Hickory Street. Blodgett caught Leaburn right about at the northwest corner, or intersection, of Hickory and Frey. Blodgett grabbed Leaburn by the collar and tripped him, throwing him to the pavement, saying: 'I will teach you to rub soap on the windows.' According to the plaintiff, Leaburn, that is all that was done in the way of an assault. According to the lad Senneth, Blodgett also stamped on Leaburn's arm three or four times while he was down. Neither boy saw where Blodgett went after the assault."

Respondent not only accepts that statement of the facts as substantially correct but also agrees with appellants that the rule announced in Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. 737, controls the question of the defendant Kroger Company's liability. The parties differ, however, in the proper application of the rule there announced to the facts in the present case.

The rule announced in Haehl v. Wabash is stated as follows:

"The principle of respondeat superior applies only when what is complained of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is then responsible, because the thing complained of, although done through the agency of another, was done by himself; and it matters not in such cases whether the injury with which it is sought to charge him is the result of negligence, unskillful or of wrongful conduct, for he must choose fit agents for the transaction of his business. But if his business is done, or is taking care of itself, and his servant not being engaged in it, not concerned about it, but impelled by motives that are wholly personal to himself, and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has, and can have, no tendency to promote any purpose in which the principal is interested, and to promote which the servant was employed then the wrong is the purely personal wrong of the servant for which he, and he alone, is responsible."

In State ex rel. Gosselin v. Trimble, 328 Mo. 760, 418 S.W.2d 801, on certiorari to the Kansas City Court of Appeals we approved the following statement of that court:

"If there is any evidence which would justify a jury in finding that the assault made on the plaintiff was incident to an attempt upon the part of defendant's driver to do his master's business, then we must hold that the case was for the jury."

In Smothers v. Furnishing Co., 310 Mo. 144, 274 S.W. 678 we reiterated the following expression of this court made in Whiteaker v. Chicago, etc., Railroad Co., 252 Mo. l. c. 458, 160 S.W....