Smothers v. Welch & Co. House Furnishing Co.

Decision Date30 July 1925
Docket NumberNo. 25032.,25032.
Citation274 S.W. 678
PartiesSMOTHERS v. WELCH & CO. HOUSE FURNISHING CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Lula Smothers against the Welch & Co. House Furnishing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Vaughn & Garner, of St. Louis, for appellant.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

RAGLAND, P. J.

As appellant has made no effort to comply with our rule 15, which requires that she make "a fair and concise statement of the facts of the case without reiteration, statements of law, or argument," we adopt the statement made by respondent. It follows:

"This is a suit for damages instituted by the plaintiff, a married colored woman, against the defendant in the circuit court of the city of St. Louis, Mo. The plaintiff's petition alleges that on the 29th day of November, 1921, she was at a furniture store conducted by the defendant at 1109 Olive street, in the city of St. Louis, for the purpose of buying some furniture; that the defendant detailed one Lou Kamine, one of its agents and servants, to wait upon her in the purchase of a davenette; that, when plaintiff and Kamine reached one of the upper floors of the store building where the davenettes were kept, Kamine invited her to sit down upon a davenette, which she did; that Kamine, then and there acting within the scope of his authority as an agent and servant of the defendant, assaulted her by throwing his arms around her and attempting forcibly to have sexual intercourse with her, over her protest and against her will and consent. The petition further alleges that as a result of the struggle which ensued the plaintiff's back was wrenched, sprained, and bruised; she was insulted and humiliated; she was unable to perform her household duties for several days; that the assault was rude and insolent, unlawful and without provocation; and that plaintiff asks judgment against the defendant for $5,000 actual and $5,000 punitive damages. The answer is a general denial.

"The plaintiff was the only witness to the main facts at issue. She testified that she had been married for 4½ years, and lived at 2104½ Biddle street, in St. Louis. On the 29th day of November, 1921, she went to the defendant's furniture store and told the man who met her at the door that she wanted to look at some davenette sets. Re called one of the salesmen, a Mr. Kamine, and told him to take plaintiff to the third floor. Kamine escorted her up the elevator to the third floor and showed her some davenettes, on the east side of the floor, but none of them pleased her. He then invited her to look at a set in another part of the floor, where, in addition to a davenette, there was a rug, some chairs, and a lamp. He asked her to sit down on the davenette to see how she liked it. She did as requested, and he thereupon grabbed her and attempted to have sexual intercourse with her. She resisted his efforts and in the melee that followed they turned over the floor lamp, a screen, he bent her back across a chair and injured her back, and inflicted other indignities and injuries upon her. After 5 or 6 minutes she managed to get away from him and started to run down a back stairway. He called her back and then he disappeared. She then sat down on another davenette for a few minutes and another salesman came up to her. She said nothing whatsoever to him about the occurrence with Mr. Kamine, but went down the elevator with him and walked out the front door without any further conversation with any one. She did not look for a police officer, nor did she mention the matter to her husband for about 3 weeks. After mentioning the affair to her husband, she consulted an attorney, and then, in company with her attorney, called at defendant's store again. Mr. Kamine was at the store then and they had some conversation with him, but nothing important transpired.

"At the conclusion of the plaintiff's evidence, the court indicated that he would give a peremptory instruction to the jury, in the nature of a demurrer to the evidence, to return a verdict for the defendant. Plaintiff thereupon took an involuntary nonsuit, with leave to move to set the same aside. Being unsuccessful in this motion, she has brought the case here by appeal; the sole allegation of error being the action of the court in giving...

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