Strauss v. Hotel Continental Co., Inc., WD

• Citation: 610 S.W.2d 109
• Decision Date: 02 December 1980
• Docket Number: No. WD,WD
• Parties: Jane STRAUSS, Plaintiff-Appellant, v. HOTEL CONTINENTAL COMPANY, INC., Kansas City Athletic Club, and Missouri Institute of Technology, Inc., Defendants-Respondents. 31093.
• Court: Court of Appeal of Missouri (US)

Page 109

610 S.W.2d 109

Jane STRAUSS, Plaintiff-Appellant, v. HOTEL CONTINENTAL COMPANY, INC., Kansas City Athletic Club and Missouri Institute of Technology, Inc. Defendants-Respondents.

No. WD 31093.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 30, 1980.

Application to Transfer Denied Feb. 9, 1981.

Robert J. Graeff, James T. Cook, Michael W. Manners, Independence, for plaintiff-appellant.

Wiley W. Morrison, Stanley W. Baker, Raytown, for defendant-respondent Missouri Institute of Technology, Inc.

Walter R. Simpson, Kansas City, for defendants-respondents Hotel Continental Co., Inc., and Kansas City Athletic Club.

Before WASSERSTROM, C. J., Presiding, and DIXON and SOMERVILLE, JJ.

WASSERSTROM, Chief Judge.

Plaintiff sues for an assault allegedly committed by a student of defendant Missouri Institute of Technology, Inc., ("MIT"), who was employed by defendant Kansas City Athletic Club ("KCAC"), on premises which are located in the building of defendant Hotel Continental Company, Inc. ("Continental"). The jury verdict was in favor of all defendants, from which plaintiff appeals. We affirm.

KCAC is a private club which leases space and operates athletic facilities in the Continental building. It regularly required locker room attendants, and from time to time it notified MIT of its need to hire a new attendant. The student body at MIT is made up of students who need part time work, and MIT as a regular part of its procedure undertakes to help its students in that regard. When a prospective employer sends in notice of an opening, the school prepares a card with the pertinent information which is posted for consultation by students needing work.

In early April 1976, Dwight Couch, an MIT student, applied for work at KCAC. He was interviewed and hired by Wayne Berry, Manager of KCAC, who died prior to trial. Couch testified that during his interview by Berry, Berry inquired about his past history and Couch informed Berry where he had gone to high school, about his service in the Marine Corps and his honorable discharge therefrom, and about the jobs at which he had "been working ever since I got out of the service" up to the time he enrolled at MIT. Couch made no disclosure about his criminal conviction for assault with intent to rape with malice aforethought or of the time spent by him in the penitentiary pursuant to that conviction.

On April 3, 1976, Couch reported for work at KCAC. At that time he was given $5.90 and told he would have to go to the City Hall to obtain a liquor permit which he would have to have in order to serve beer to members using the locker room.

Couch testified that he did go to the City Hall to make application for a liquor permit, but that was denied when he showed on his application that he had been previously convicted of a felony. Couch returned to work at KCAC without telling anyone there about the denial of his application for a permit or the reason for the denial. He kept the $5.90.

On April 17, 1976, plaintiff came to Kansas City as one of the actresses in the traveling production of Godspell. She registered as a guest at Continental and learned that as a guest she was entitled to use the KCAC facilities. That afternoon she went to the KCAC facilities about 5:30 p. m. She met Couch at that time, who told her the Club was about to close but that she could go swimming. She did swim, after which she had some conversation with Couch who showed her through the facilities and permitted her to use the jogging track. Couch then suggested that he would be at the Club studying later during the evening and that if plaintiff and her friends wanted to swim after the performance of Godspell, he would permit them to do so and that they then could go out to one of the City's places of entertainment. Plaintiff stated that she would let Couch know.

Later that night after the theatrical performance, plaintiff went back to the KCAC premises and told Couch that she had a headache and did not desire to swim. Couch offered her a soft drink, which plaintiff accepted. However, plaintiff complained that the place in which they found themselves was drafty and Couch suggested that they go to a card room further back in the premises. Plaintiff agreed to do so. While they were in the card room, Couch approached closer in a manner which aroused apprehension on plaintiff's part. She excused herself and turned to leave. As she was passing through the locker room, she was struck on the head from behind. In the grapplings that followed, she was able to see her assailant whom she identified as Couch. She was able to break away and got downstairs to the first floor by elevator. Couch was arrested and charged with assault. He stated at the time of his arrest and has consistently contended since that it was not he who made the assault but some other unidentified "dude" who came out from between the lockers.

For her points on appeal, plaintiff complains: (1) that the trial court improperly excluded for purposes of impeachment evidence that Couch had been convicted of assaulting plaintiff; (2) that the trial court improperly excluded the testimony of witness Lovan who would have testified that Berry talked to one of the officials at MIT about the necessity of the locker room employee having a "clean record" so that he could obtain a liquor permit; and (3) that the trial court erred in submitting a jury instruction permitting a finding that plaintiff was contributorily negligent. All defendants argue that these alleged trial errors are immaterial for the reason that the evidence made no submissible case against any of the defendants. In that connection, MIT and Continental point out that the trial court, with respect to their motions for directed verdicts stated, "I have no reason to believe that a submissible case has been made against either of those defendants. * * * I'm going to deny each of the motions with the understanding that if a verdict is secured against you, that I will sustain them subsequent to a motion for judgment notwithstanding that verdict."

Not only was the trial court correct in the foregoing observation, but additionally it must be concluded that no submissible case was made against defendant KCAC. Under those circumstances, any trial error is immaterial and need not be considered. Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240 (1955); R. H. Macy & Co. v. Bell, 531 S.W.2d 58 (Mo.App.1975).

I.

As to Continental, plaintiff pleaded causes of action for assault, ¹ for negligence in hiring Couch, for negligence in providing safe premises, and for negligence in failing to comply with state and city liquor regulations. However, the only instruction submitted against Continental was on the theory that Continental "did not provide and maintain a safe premises for Plaintiff to use." That submission was based upon and further defined by the allegation in Count Three of plaintiff's petition in which she alleged that defendants Continental and KCAC "negligently and carelessly failed to keep all doors and methods of entry locked to avoid and prevent access and entrance by uninvited trespassers" and that by reason thereof plaintiff was assaulted "by an unknown and uninvited trespasser who gained entry and access to said premises through said unlocked door."

By electing to go to the jury against Continental on that sole theory, plaintiff abandoned all of her other pleaded theories as to Continental, and those theories not submitted are not before this court for consideration. Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938 (1919); Weathers v. Falstaff Brewing Corporation, 403 S.W.2d 663 (Mo.App.1966); Johnson v. Thompson, 236 S.W.2d 1 (Mo.App.1950); Whited v. Guarantee Trust Life Ins. Co., 237 S.W.2d 915 (Mo.App.1951).

Plaintiff faces an insurmountable obstacle with respect to her submitted theory in that she herself testified that Couch, not some unknown trespasser, committed the assault. With exceptions not here applicable, a party is bound by his own testimony. Burks v. Leap, 413 S.W.2d 258 (Mo.1967); Peoples Finance Corporation v. Buckner, 344 Mo. 347, 126 S.W.2d 301 (1939); Euler v. Schulthes, 522 S.W.2d 155 (Mo.App.1975); Thaller v. Skinner and Kennedy Company, 307 S.W.2d 734 (Mo.App.1958). Inasmuch as plaintiff's own testimony contradicts the theory upon which she submitted her case against Continental, that submission was unsupported and should not have been tendered.

II.

Although plaintiff pleaded that KCAC was responsible for the acts of its employee Couch under the doctrine of respondeat superior, she submitted no instruction to the jury on that theory. There was good reason for not doing so, because the doctrine of respondeat superior clearly does not apply under the facts of this case in that Couch was not acting within the scope of his employment, but rather was pursuing his own ends for his own purposes at the time of the assault upon plaintiff. Smothers v. Welch & Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678 (1925).

Plaintiff did, however, submit against KCAC on an alternative theory that KCAC had been negligent in the manner in which it selected and hired Couch. This was the only theory of liability against KCAC submitted by plaintiff to the jury.

KCAC challenges whether Missouri recognizes a cause of action premised upon such allegations of negligent hiring. There is, in fact, a conflict of authorities throughout the country as to whether an employer can be liable to a third party under such theory. 53 Am.Jur.2d Master and Servant Sec. 422, p. 435 (1970). KCAC seeks to align Missouri with those decisions which decline to recognize this concept, and in support it cites Priest v. F. W. Woolworth Five & Ten Cent Store, 106 S.W.2d 936 (Mo.App.1937). That opinion would seem to deny plaintiff any right of recovery here.

Notwithstanding the opinion just cited, the Missouri...