Whitted v. Southwestern Tel. & Tel. Co.

• Decision Date: 09 March 1916
• Docket Number: 4504.
• Citation: 231 F. 926
• Parties: WHITTED v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 926

WHITTED v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

No. 4504.

United States Court of Appeals, Eighth Circuit.

March 9, 1916

R. E Wiley, of Little Rock, Ark., and Joe Hardage and T. N Wilson, both of Arkadelphia, Ark., for plaintiff in error.

A. P Wozencraft, of Dallas, Tex., and Walter J. Terry and Edward B. Downie, both of Little Rock, Ark., for defendant in error.

Before ADAMS and CARLAND, Circuit Judges.

ADAMS Circuit Judge.

Whitted the plaintiff below, brought this suit against the telephone company to recover damages sustained by him by reason of an assault and battery committed by one John Grogan, alleged to have then been acting as agent of the company and within the scope of his employment. At the close of all the evidence the court instructed the jury to find a verdict for the defendant. This was done, and judgment was rendered for the defendant. Plaintiff prosecutes error.

The evidence tended to show that the defendant telephone company maintains a public office in the depot of the St. Louis, Iron Mountain & Southern Railway Company, at Arkadelphia, Ark., for sending and receiving telephonic messages, the use of which was offered to the public for a consideration to be paid therefor; that the plaintiff, Whitted, having occasion to converse with a patron, entered one of the booths provided for that purpose, and called the operator at central station to secure the necessary connection. Some delay ensued, and plaintiff being then intoxicated, began abusing and cursing the operator, kicking the sides of the booth, beating the receiver against the telephone box, and otherwise creating disturbance. At this juncture John Grogan, the general manager of the defendant company, appeared upon the scene and ordered the plaintiff to cease his disturbance and to behave properly if he desired to use the booth. This not having the desired effect, but promoting more profanity and disturbance, Grogan forcibly ejected plaintiff from the booth, telling him he wanted no trouble with him; that all he wanted was that he should behave himself properly when transacting business there. He told plaintiff, if he would go away awhile and come back again, he would probably be able to get his party. This conversation occupied but little time, one witness putting it at 20 or 30 seconds. Hot words passed, and threatening attitude was taken by Whitted, and Grogan fearing for his personal safety, drew back and hit plaintiff a hard blow in the face with his fist.

It is not contended that Grogan used more force in ejecting plaintiff from the booth than was reasonably necessary to get rid...