Sisler v. Mistrot

• Decision Date: 25 January 1917
• Docket Number: (No. 7304.)
• Citation: 192 S.W. 565
• Parties: SISLER et al. v. MISTROT et al.
• Court: Texas Court of Appeals

192 S.W. 565

SISLER et al. v. MISTROT et al.

(No. 7304.)

Court of Civil Appeals of Texas. Galveston.

January 25, 1917.

Rehearing Denied February 15, 1917.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by Eula B. Sisler and another against G. A. Mistrot and another. From a judgment dismissing the suit, plaintiffs appeal. Judgment affirmed.

A. T. Carleton, W. F. Tarver, and L. M. Ballowe, all of Houston, for appellants. S. H. Philbin, Walter H. Walne, and Baker, Botts, Parker & Garwood, all of Houston, for appellees.

GRAVES, J.

This was a suit by Eula B. Sisler, joined by her husband, J. B. Sisler, against G. A. Mistrot individually, and Mistrot-Curtis Company, a corporation, for damages in the sum of $2,500 for mental pain and anguish alleged to have been suffered by said Eula B. Sisler upon allegations hereinafter fully set out. The defendants filed a general demurrer to the amended petition upon which the cause was heard, which demurrer, upon a hearing, the trial court sustained, and upon plaintiffs refusing to amend, the suit was dismissed. From this judgment of dismissal the plaintiff, upon proper procedure, appeals to this court. Therefore the only question for this court to determine is one of law as to whether or not the trial court erred in sustaining the general demurrer to plaintiffs' petition, and in holding that the same did not state a cause of action. For the purpose of determining this question we here recite fully the material allegations of the petition:

After the usual formal averments, it was alleged that the Mistrot-Curtis Company is a corporation conducting a store for the sale of ladies' wearing apparel in the city of Houston; that G. A. Mistrot was its manager and president, and that the plaintiff Eula B. Sisler, after having purchased a certain ladies' suit from the defendant store, and after having become dissatisfied with the suit, and after having so notified said company, was requested by one of its employés to bring the suit to the store, being informed by him that the company would arrange the matter satisfactorily. From appellants' brief filed in this court, pages 4 to 7, inclusive, we copy the remaining allegations of the petition, as follows:

"We here insert verbatim those paragraphs of the petition that allege the wrongful thing said and done by the defendant Mistrot, upon which the plaintiffs base their cause of action:

"VIII. That when plaintiff Eula B. Sisler and her friend arrived at defendants' store, they were conducted by one of the defendants' employés to the defendant G. A. Mistrot. That upon this plaintiff advising said G. A. Mistrot, president and general manager of the Mistrot-Curtis Company, of the object of their visit to the store, the said Mistrot became very angry and he did commence to use towards this plaintiff, violent, harsh, insulting and abusive language, and the manner and mood in which this defendant talked was very threatening and insulting and rude, in that he gesticulated wildly and beat his fist upon the counter. That he talked in a loud, rough and angry tone of voice to said plaintiff, using towards her insulting, sneering and rude remarks. That such loud, angry and sneering talk and conversation used by the defendant Mistrot towards this plaintiff was heard, and was intended by the defendant Mistrot to be heard, by the many customers then in the store, doing their Christmas shopping, as well as the numerous salesladies and other employés of the defendant company then in the store. That the plaintiff becoming very much embarrassed by reason of such conversation on the part of the defendant Mistrot, and not caring to prolong the conversation and to have the said defendant to address towards her the insulting remarks in the presence of the said customers and salesladies and other employés, did thereupon leave the said Mistrot, and with her said friend did walk towards the elevator in the store for the purpose of departing from the premises. That thereupon the said Mistrot did instruct one of his assistants in the department to deliver the package containing said suit to the plaintiff, and that said assistant, acting under the instructions from the said Mistrot, did endeavor to force this plaintiff to accept the package, and just as she and her friend did step into the elevator preparing to leave the premises, that said assistant did then and there throw said package at this plaintiff and her friend in the presence and in the sight of said crowd of Christmas shoppers in said store at the time and in the sight and in the presence of the numerous salesladies and other employés then and there in the store. That as said assistant threw the package at this plaintiff and her friend while they were in said elevator, the said assistant did instruct the negro man in charge of the elevator to deliver said package and to see that the women took it.

"IX. That all of the aforesaid loud and angry talking and acts on the part of the defendant Mistrot, and the aforesaid acts of his assistant under his direction in trying to force the plaintiff to accept said package, and in throwing said package at said plaintiff Eula B. Sisler and her friend, which all took place at a time of the day when the store was crowded with Christmas shoppers and the numerous salesladies and other employés of the defendant company. That such loud and angry talking and the acts accompanying such talking on the part of the defendant Mistrot could be heard and seen, and he intended such to be heard and seen, and such were in fact heard and seen by said Christmas shoppers, as well as by said salesladies and other employés of defendant company. That the said act of defendant company's agent and employé, under the direction of said G. A. Mistrot, president of said company, in trying to force plaintiff to accept said package, and in then throwing said package at this plaintiff and her friend, could be seen and was intended on the part of the defendant G. A. Mistrot and said employé to be seen, and was in fact seen by said Christmas shoppers who were then in the store in great numbers, as well as by the numerous sales-ladies and other employés of the defendant company. And that all of said loud talking and words and acts as aforesaid caused this plaintiff Eula B. Sisler great humiliation, shame and vexation, and that she suffered mental pain, anguish and mortification as the result thereof. That at no time during the above occurrence and conversation was this said plaintiff guilty of any misconduct whatsoever; but on the contrary, these plaintiffs would show unto the court that said plaintiff was at said store at said time to amicably and peaceably transact a business matter at the special invitation and request of defendant company's agent. Plaintiffs would further show by reason of the unjust, unwarranted, insulting and unexpected treatment accorded to plaintiff Eula B. Sisler as aforesaid, and by reason of the injury and shame, abuse and humiliation heaped upon her by defendant company's agent and employé, G. A. Mistrot, in abusing and insulting and acting as he did towards her before the crowd of Christmas shoppers, as well as before the numerous salesladies and other employés of the defendant company, and by reason of the act by defendant company's agent as aforesaid in trying to force plaintiff to accept said package, and the package being thrown at her in the presence of said crowd of Christmas shoppers, as well as the numerous salesladies and other employés of the defendant company, when it was said defendant company's agent's duty to plaintiff Eula B. Sisler to see that she was treated courteously and attentively while in said defendant company's store on a business mission — all of which said acts on the part of the defendant company's agent and employé, and on the part of the said G. A. Mistrot, were in utter disregard of plaintiff's rights and in total violence of defendant company's duty to said plaintiff as its customer, and that as a result of all of the aforesaid acts and deeds and words the feelings of said Eula B. Sisler were greatly hurt, she was humiliated, vexed, harassed, mortified and embarrassed, and suffered great mental pain and anguish, and was put in bad repute before the other customers who were then in the store, as well as before the numerous salesladies and other employés of the defendant company.

"X. And these plaintiffs further show unto the court that the unjust, unwarranted and uncalled for and unexpected abusive and insulting treatment heaped upon this plaintiff Eula B. Sisler by defendant company's agent, G. A. Mistrot, in talking in the loud, angry and insulting way that he did, and in the acts when so talking in refusing to make the satisfactory adjustment of the controversy about the suit of clothes, and in having said package tendered to her as it was, and in having said package thrown at her when she refused to take it — all of which acts and words were done and said in the presence of and in the hearing of many customers then in the store, and numerous salesladies and other employés of the defendant company, which all of said acts and words were not only done and spoken in total disregard to plaintiff's Eula B. Sisler's rights and privileges as a customer of defendant company's store, and in utter violation of defendant company's duty to said plaintiff Eula B. Sisler, as such customer, but all of which said abusive acts and things done in the premises aforesaid were done and caused to be done by G. A. Mistrot, president and general manager of the Mistrot-Curtis Company, willfully, maliciously and with the intent to vex, harass, embarrass and insult plaintiff Eula B. Sisler, in a manner calculated to humiliate and mortify her, and to bring her into bad repute before other customers then in said store, as well as before the numerous salesladies and other employés of the company. That such abusive acts and things done...