Thompson v. Portland Hotel Co.
| Decision Date | 04 April 1922 |
| Citation | 239 S.W. 1090,209 Mo.App. 476 |
| Parties | GEORGIA THOMPSON, Respondent, v. PORTLAND HOTEL COMPANY and THEODORE TOURSE, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St.Louis.--Hon. J. Hugo Grimm, Judge.
AFFIRMED.
Judgment affirmed.
Geo. W Lubke and Geo. W. Lubke, Jr., for appellant Portland Hotel Company.
(1) The trial court should have directed a verdict for this defendant. The evidence showed conclusively that the acts of the defendant Tourse complained of were not within the scope of his employment by this defendant as a matter of law. Collette v. Rebori, 107 Mo.App. 711; Grattan v Suedmeyer, 144 Mo.App. 719; Milton v. Railway Co., 193 Mo. 46; Excelsior Products Co. v Railroad, 263 Mo. 142; Railway Co. v. Kelly, 177 F. 1189; Madsuda v. Hammond, 77 Wash. 120; McDermot v. Brewing Co., 105 La. 124; Steinman v. Laundry Co., 109 Md. 62; Central Railway Co. v. Brewer, 78 Md. 394; Russell v. Insurance Co., 63 So. 644; Moore v. Cohen, 128 N.C. 345; West v. Grocer Co., 138 N.C. 166; Powell v. Fiber Co., 150 N.C. 12; Callahan v. Hyland, 59 Ill.App. 347 (2) The instructions given for the plaintiff numbered 1 & 2 are erroneous, because not predicated on and being broader than the evidence. Stid v. Railroad, 236 Mo. 382; Gunn v. Lumber Co., 218 S.W. 852; Stumpf v. United Ry's Co., 227 S.W. 852; Ostopshook v. Cohen-Schwartz Co., 227 S.W. 642; Lord v. Delano, 188 S.W. 93; Burns v. Polar Wave I. & F. Co., 187 S.W. 145; Cases cited under Point 1. The testimony of the defendant Tourse sought to be elicited by this defendant was material. As the witness was being cross-examined leading questions were permissable. No conclusion of law is called for by the questions asked by the witness, but only a statement of fact. 40 Cyc, p. 2517, i. (4) The verdict is excessive and the result of passion and prejudice on the part of the jury against this defendant, and should be set aside. Dix v. Martin, 171 Mo.App. 266; Goetz v. Ambs, 22 Mo. 170.
Anderson Gilbert & Wolfort for appellant Tourse.
The court erred in refusing to give defendant's refused instruction B. If any witness swears falsely to any material point in a case the jury should be instructed that they may disregard such witness' testimony. Meyers v. City of Independance, 189 S.W. 816, 822; Hall v. Coal & Coke Company, 260 Mo. 351; Cohen v. Terminal Railway Company, 193 Mo.App. 69, 76, 77. The court erred in refusing to grant a new trial on the ground that the verdict was excessive Dix v. Martin, 171 Mo.App. 266; Mitchell v. United Rys. Co., 126 Mo.App. 1; Whitlock v. Northern Railroad Co., 59 Wash. 15; Nagle v. Cohen, 67 A. 419; Matson v. Matson, 105 Me. 152; Kehl v. Burgener, 157 Ill.App. 468; Rees v. Rasmussen, 5 Neb. 367; Macintosh v. Bartlett, 67 Me. 130; Zimmerman v. Northern P., 157 Wis. 514; Hennies v. Vogel, 87 Ill. 242.
Holland R. Polak and Safford & Marsalek for respondent.
(1) The court properly refused the instruction in the nature of a demurrer to the evidence offered by defendant Portland Hotel Company. (a) Theodore Tourse was manager of defendant's restaurant. He had authority to employ and discharge the restaurant employees and supervised the payment of their wages. In the course of an attempt to collect from plaintiff, a waitress in the restaurant, the sum of two dollars which he had authorized her to draw in excess of the amount due her, he committed the assault upon which the suit was based. His act was incident to and connected with the performance of his duties as manager of the restaurant, and was done in futherance of the master's business, and, therefore, rendered the master liable. Maniaci v. Express Co., 266 Mo. 623; Whiteaker v. Railroad, 252 Mo. 458; Garretzen v. Duenckel, 50 Mo. 104; Haehl v. Wabash R. Co. 119 Mo. 325; Blumenfeld v. Grocer Co., 206 Mo.App. 509; Hellriegel v. Dunham, 192 Mo.App. 43; Meade v. Railroad, 68 Mo. App, 97-9; Bouillon v. Gas Co., 148 Mo.App. 473; Houck v. Railroad, 116 Mo.App. 570-1; Barnes v. Railroad, 192 S.W. 1040; Avondale Mills v. Bryant, 10 Ala.App. 507; Regg v. Buckley, etc., Co., 130 N.Y.S. 172; Bergman v. Mendrickson, 106 Wis. 434; O'Connell v. Samuel, 81 Hun. 357; Levi v. Brooks, 121 Mass. 501; Bayliss v. Schwalbach Cycle Co., 38 N.Y.S. R. 492; Warren v. Dennett, 39 N.Y.S. 830. (b) In the course of the assault, Tourse said, referring to the two dollars he was trying to collect: "If I don't get it I have to make it good myself." "I came to get it back for the company." "I have come to get the company's money; if I don't get it I will have to take it out of my own pocket." These statements were part of the res gestate. They were evidence characterizing his act, and could properly be considered by the jury as showing for whom Tourse was trying to collect the money. Gieske v. Redemeyer, 224 S.W. 92; Kelly v. Railroad, 225 S.W. 133; Anderson v. Lusk, 202 S.W. 304; Strothers v. McFarland, 194 S.W. 882; Kame v. Railroad, 259 Mo. 104. (2) Defendant Portland Hotel Company asked and the court gave instruction 8, submitting to the jury the question whether or not, at the time of the occurence mentioned in the evidence, Tourse was acting for defendant Portland Hotel Company and was authorized by said defendant to act for it, and while so acting was within the scope and terms of his employment with said company. Said defendant, having asked the judgment of the jury on said issue as a matter of fact, is now estopped from claiming that the court erred in submitting said issue to the jury. Whiteaker v. Railroad, 254 Mo. 459; Berkson v. Railway Co., 144 Mo. 211; Gayle v. Fdy. Co., 177; Mo. 427; Ellis v. Harrison, 104 Mo. 270; Jennings v. Railroad, 99 Mo. 394; Hopkins v. Modern Woodman, 94 Mo.App. 409; Deitering v. Transit Co., 109 Mo.App. 555. (3) The court properly sustained the objection by plaintiff to the question propounded to Mr. Tourse, "Whose two dollars was it that you were trying to get from Mrs. Thompson on this occasion?" (a) The question called upon the witness for a conclusion, and invaded the province of the jury. The Kendall Co. v. Bain, 46 Mo.App. 581; Muff v. Railroad, 22 Mo.App. 584; 22 C. J., p. 502. sec. 597. (b) Appellant failed to make an offer of what he expected to prove by the witness in answer to the question objected to. The matter, therefore, cannot be reviewed on appeal. Bank of Slater v. Union Station Bank, 283 Mo. 308. (4) The court instructed the jury that they were the sole judges of the credibility of the witnesses, and of the weight to be given their testimony, and that the jury could consider, in determining the credibility and weight of their testimony, the witness' character, manner on the stand, interest in the result of the trial, relation to or feeling toward the parties, the probability or improbability of his or her testimony, and all other facts and circumstances in evidence. The court did not commit error in refusing a similar instruction, asked by defendant Tourse, which stated, in addition, that they "had the right to reject or disregard" the testimony of any witness whom they believed had willfully sworn falsely to any material fact in issue. (a) It was within the court's discretion to give or refuse said instruction. Milton v. Holtzman (App.), 216 S.W. 828, and cases cited; State v. Barnes, 274 Mo. 625. Even though the court could have given the instruction, its refusal would not constitute reversible error. Sec. 15313, R. S. 1919. (5) The verdict was not excessive. Morriss v. Railroad, 184 Mo.App. 65; Flynn v. Railroad (App), 190 S.W. 371; Wingate v. Bunton, 193 Mo.App. 470; Redd v. Railroad, 161 Mo.App. 522.
--The petition herein was originally in two counts. The first count set up a cause of action for damages for assault and battery alleged by plaintiff to have been committed upon her by the defendants on August 4, 1918, at the Raymond Hotel in the city of St. Louis, and for which she prayed judgment for $ 5000 actual damages and $ 5000 punitive damages. The second count alleged a cause of action for damages for slander, but was abandoned below and need not be here further noticed.
The answer of the defendant Tourse is a general denial, as is likewise that of the defendant Portland Hotel Company, except that the latter admits its corporate existence.
The trial below before the court and a jury, resulted in a verdict for plaintiff against both defendants for $ 500 actual damages and $ 700 punitive damages. From a judgment entered upon this verdict both defendants have appealed.
On and prior to August 2, 1918, plaintiff, a married woman, was employed as a waitress by the defendant Portland Hotel Company which operated a hotel at 18th and Market streets in the city of St. Louis; at which work plaintiff earned $ 6.60 per week. The defendant Tourse was the manager of the restaurant conducted by the defendant hotel company in connection with its hotel, and in which plaintiff worked. Plaintiff resided at the Raymond Hotel, being No. 3744 Olive street in said city.
It appears that on Friday, August 2, 1918, plaintiff left the employ of the defendant hotel company, at which time defendant Tourse, as manager of said restaurant, gave plaintiff a slip showing that $ 6.05 was due her; and plaintiff thereupon presented this slip to one Hendley, an employee in the office of the defendant hotel company, who paid her said sum. It is said that plaintiff had been allowed to draw two dollars from the "till" during the week, and that but $ 4.05 was due her when she quit her employment. However, in this connection plaintiff testified ...
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