Nelson v. R. H. Macy & Co.

• Decision Date: 07 October 1968
• Docket Number: No. 24857,24857
• Citation: 434 S.W.2d 767
• Parties: Lester Guy NELSON, Respondent, v. R. H. MACY & CO., Inc., Appellant.
• Court: Missouri Court of Appeals

Page 767

434 S.W.2d 767

Lester Guy NELSON, Respondent, v. R. H. MACY & CO., Inc., Appellant.

No. 24857.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1968.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 2, 1968.

Application to Transfer Denied Jan. 13, 1969.

Don B. Roberson, Kansas City, for appellant; Shughart, Thomson & Kilroy, Kansas City, of counsel.

Lillie Knight and W. Raymond Hedrick, Kansas City, for respondent.

HOWARD, Presiding Judge.

This is a suit for false arrest wherein a jury trial resulted in a judgment for respondent for $2,500.00 actual damages and $2,500.00 punitive damages. Appellant has duly appealed to this court. We shall refer to the parties as they appeared below.

Plaintiff, Lester Guy Nelson, was thirty-two years old and employed by Mutual Educators, Inc., selling encyclopedias and other educational aids door to door. On Friday, July 15, 1966, shortly before 5:00 p.m. and just prior to meeting the group of salesmen whom he supervised, plaintiff entered the defendant's (Macy's) department store located in the Antioch Shopping Center in Kansas City, Clay County, Missouri, for the purpose of buying swim trunks and camera film. No clerk offered to wait on him in the men's department and plaintiff selected a pair of swim trunks from a rack and took them off the hanger. He did not see any clerk in the men's department but there was one at the camera counter. Plaintiff walked toward the camera counter with the swimming trunks hanging over his left arm and took a shopping list from his pocket to see what number camera film he was supposed to buy. While plaintiff was looking at the camera film he was approached by George Henthorn, an officer of the Kansas City, Missouri police department, who was also employed by defendant during his off-duty hours.

Plaintiff testified that the bathing suit was on top of his clothing and in plain view at all times. He specifically denied that he put it under his arm or under his clothing. He was wearing a suit coat and a light-weight raincoat or all-weather coat and a felt hat. There had been light rain off and on that day. Plaintiff testified that Henthorn told plaintiff to give him the bathing asked 'Do you plan to pay for this suit?' asked 'Do you plan to pay for this suit?' and plaintiff answered that he did. Henthorn repeated the question as to payment two or three times. Plaintiff told Henthorn 'Certainly, I want to pay for this swimsuit, and I want to buy this film.' Plaintiff told Henthorn that he was in a hurry, had to meet his men and had other things to do besides talking to him. Henthorn then identified himself as a police officer for Macy's and told plaintiff that if he was going to be a wise guy he could come down and see the manager. Henthorn walked behind plaintiff and directed him to walk down to the floor below and into the manager's office.

Henthorn told the store manager, Mr. Blake, that he had caught a shoplifter. Blake and Henthorn then questioned plaintiff as to his name, address, employment, etc. Plaintiff had theretofore lost his personal papers and had no identification on his person at the time. He told Blake and Henthorn that he had lost his identification but had a temporary driver's license clipped to the sunshade of his car; that he lived in Rich Hill, Missouri, but stayed at a hotel in Kansas City during the week because of the nature of his work. He had the hotel key with him. Plaintiff asked Blake and Henthorn to get the temporary driver's license from the car and to call various people at his hotel and his place of employment who could identify him; also his brother and a friend, both of whom lived near the shopping center in Clay County. They refused to do so but wrote up a report on a form prescribed by Macy's which report recited the information given by plaintiff and contained a confession that he had stolen the swimsuit. Blake asked plaintiff to sign this and he refused. It was read into the record as follows: 'I hereby certify and confess that I, Lester Nelson, the undersigned, am 32, residing at Rich Hill, Missouri, 702 South Fifth Street, have been guilty of theft from Macy's, Kansas City, Missouri, having taken and concealed the following goods: One Jenson blue swim suit, size 36. I further state that this confession is made of my own free will and accord without threat or without promises of leniency, and I hereby promise to refrain from coming into Macy's in the future with the intent to obtain and keep--with the intent to keep the same without paying therefor * * *'

Plaintiff testified that Blake told him that this document was not a confession but was only a customary form used by Macy's and that if he would sign it the matter would be closed and he could go. Plaintiff refused to sign, maintaining that he had not stolen anything and all he wanted to do was buy the swimsuit and film and leave. Blake told him: 'If you don't sign it, you are going to go to jail.', and Henthorn told him he had better sign it. When he continued to refuse to sign, Blake told Henthorn 'Call the police. Put him in jail.' Henthorn did so and a uniformed officer arrived in about five minutes. This officer did not question plaintiff but he and Henthorn took him out of the store and placed him in a police car. He had been in the manager's office 'The best part of an hour.'

Plaintiff pointed out his car on the parking lot and the officers searched it, going through the trunk, the glove compartment, a briefcase and sales literature. Plaintiff's driver's license was found clipped to the sunvisor. After the search plaintiff was taken to the police station. Henthorn followed in his own car. At the police station plaintiff was booked on a charge of petty larceny in violation of a city ordinance. Plaintiff arrived at the police station a little after 6:00 p.m. and left shortly before 9:00 p.m. when his brother came and made bond for him. He sat in a small room for about an hour of this time and was locked up with other prisoners the rest of the time. Plaintiff stayed with his brother that night and drove to his home in Rich Hill the next day, Saturday.

George Henthorn was a detective on the Kansas City, Missouri, police department, and was employed by Macy's in store protection. He was hired to protect the store against shoplifters. His duties included patrolling the store watching for any unusual person or circumstances. He was to bring anyone he caught shoplifting to the proper Macy's authority. On this date he was scheduled to work for Macy's from 4:30 or 5:00 p.m. to closing time. He testified that about 5:00 p.m., he was on the second floor of Macy's when he saw plaintiff come down the aisle and enter the men's department. His attention was attracted to plaintiff because he was wearing a light-weight all-weather coat when the weather did not call for such a garment. Henthorn watched plaintiff look around the area, take a hanger with a swimsuit on it from the rack, examine the swimsuit, look around again, remove the swimsuit from the hanger and replace the hanger on the rack, look around again and then 'slipped the swimming suit up under his coat under his left arm.' Plaintiff then went to the camera department and stopped, facing back toward the men's department. The swimming suit remained under plaintiff's clothes and was not visible. Henthorn went up to plaintiff and asked if he was going to pay for the swimming suit. Plaintiff said 'What swimming suit?' Henthorn replied 'The swimming suit you have underneath your coat.' Plaintiff repeated 'What swimming suit?' and Henthorn again said 'The one that you have underneath your coat and beneath your arm.' Plaintiff then took the swimming suit out from under his clothes and gave it to Henthorn. Henthorn testified specifically that plaintiff did not have the swimming suit over his arm. Henthorn then identified himself as a police officer and asked plaintiff to go with him to the manager's office, which he did.

It was brought out that when Henthorn testified in police court he did not mention plaintiff's question 'What swimming suit?' but when asked 'Did he make any statement to you?' he answered 'No; he said he intended to pay for it, was the only statement he made to me.'

Plaintiff was questioned by Blake and Henthorn. They testified that plaintiff told them that he was unemployed and lived in Rich Hill; that he was just passing through and showed them his hotel key; at first he said a friend had dropped him at the shopping center but later said he had driven his own car. When asked 'why he did it' he said he really didn't know; he was confused and had been having a lot of problems lately, had lost his job and was having marital difficulties. (Plaintiff specifically denied making these statements.) Plaintiff had no identification but stated that he had a passport in his car. During this questioning, Henthorn filled in the information for the confession on a form supplied by Blake. He did not remember hearing Blake tell plaintiff that if he would sign the confession he could go. Blake denied making such statement. When asked the purpose of having plaintiff sign the confession, Henthorn testified 'I don't know. This is not my form or anything. I don't know what the purpose of the store is.' When plaintiff refused to sign the confesssion Blake told Henthorn to call the police and he did so. Blake said to Henthorn 'You might as well take him in because we don't know who he is and he better be checked out.' Henthorn followed the police car and plaintiff to the police station where he told the officer what charges to book plaintiff on, and then he left.

We are met first with a motion to dismiss this appeal because defendant's brief does not contain 'a fair and concise statement of the facts without argument' as required by Civil Rule 83.05(a) V.A.M.R. The brief is deficient in this respect but we do not believe such defect is so serious as to require...