Smith v. S.H. Kress & Co.

• Decision Date: 18 October 1923
• Docket Number: 6 Div. 793.
• Citation: 98 So. 378,210 Ala. 436
• Court: Alabama Supreme Court
• Parties: SMITH v. S. H. KRESS & CO.

98 So. 378

210 Ala. 436

SMITH v. S. H. KRESS & CO.

6 Div. 793.

Supreme Court of Alabama

October 18, 1923

Rehearing Granted Dec. 13, 1923.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by Iris Smith against S. H. Kress & Co., for damages for false imprisonment. From a judgment for defendant, plaintiff appeals. Affirmed on rehearing.

Smith &amp Morrow and Erle Pettus, all of Birmingham, for appellant.

Miller & Graham, of Birmingham, for appellee.

BOULDIN J.

This is an action to recover damages for false imprisonment, and for assault and battery. Many questions raised on this appeal relate to rulings of the trial court upon evidence. A review of these rulings makes proper a brief statement of the tendencies of the evidence.

The evidence for plaintiff tended to show that while at her work as an employee of defendant two agents of Bodeker Detective Agency appeared and directed her to go with them to the offices of the detective agency; that she was locked up in these offices, confronted with a charge of having taken the money of her employer, and restitution demanded; that her person was searched; that she was detained several hours while denied outside communication; that finally she was allowed to communicate with her mother, and on her advice paid a portion of the sum demanded, and was released. Plaintiff's evidence tended to show that the manager of defendant's store was present a portion of the time, had knowledge of her detention and search, and joined in the effort to obtain the money claimed to have been embezzled.

The defendant's evidence tended to show that plaintiff had been discovered making sales of candy, ringing up on the cash register a portion of the amounts received, and concealing a portion about her clothing; that she went voluntarily to the office of the agency, was never arrested nor detained; that her person was never searched nor assaulted; that when advised of the charge plaintiff admitted her default, and signed a written statement in the presence of witnesses to that effect. Defendant's evidence further tended to show that plaintiff pleaded the needs of her small child, and that her husband was in jail in Mississippi, in palliation, an besought the manager of defendant not to prosecute her; that she was at all times treated with kindness and sympathy.

The evidence made a case for the jury both on the count for false imprisonment and the count for assault and battery.

During the direct examination of plaintiff, she was asked "Now, what did they ask you to say?" The ruling of the trial court in sustaining defendant's objection to this question is presented for review.

In Blunt v. Strong, 60 Ala. 572, this court laid down as clearly as may be the guiding rules to determine when a question is leading, and, if leading, when it should and should not be allowed.

A leading question to a party in the cause, with the natural bias growing out of interest, should be avoided. Any question so framed as to expressly or impliedly assume the existence of a material fact not theretofore testified to, so that the answer may affirm the fact so suggested, is leading.

In the case at bar the witness had just detailed matters which, if true, tended to show she was at the time in duress of body and mind. The question assumes that in this position she was asked to talk, and calls for what she was asked to say. The question was leading, and correctly refused. Leading questions touching the res gestæ are equally as objectionable as others.

There was no error in allowing defendant to ask plaintiff on cross-examination whether her husband was in jail, and whether she had carried money to him. Plaintiff's evidence tended to show that the money carried to the husband was prior to her employment by defendant, and derived from another source. But defendant's evidence of her statements at the detectives' office was sufficient to warrant this evidence as tending to show a motive to supply the husband's further needs. The court below carefully limited the testimony by proper instructions to the jury.

The question of defendant's liability for the alleged acts of the detective agency was one of the issues submitted to the jury. Whether the acts complained of were in the line and scope of the agency's employment was a controverted question. The contract of employment rested in parol. It appeared a contractual relation had continued for several years.

Geo. H. McClerry, manager of the Birmingham store of defendant, testified:

"I made the agreement with the Bodeker Detective Agency myself. We hired them for investigating purposes, collecting bad checks, and things of that kind, just a matter of investigation wholly to watch our interests, inside and out." "There was nothing whatever stated, either verbally or written regarding arrests, but they were instructed not to make arrests."

There was other testimony that instructions were given not to make arrests, and that there were no instructions about arrests. All this testimony about instructions was admitted over the objections of the plaintiff.

Secret instructions to an agent cannot protect the principal from the agent's torts done in the course of the principal's business. Instructions again may be a part of the contractual relation between the principal and agent in fixing the line and scope of his employment. Much depends on the character of the agency. Does the employment of a detective agency carry such apparent authority to make arrests as to be within the scope of the employment, or the course of business?

"A detective is one whose business it is to detect criminals or discover matters of secret and pernicious import, for the protection of the public." "A private detective is one engaged by individuals for private protection." 18 C.J. p. 979. A private detective has again been defined to be "a person unofficially engaged in obtaining secret information for the use and benefit of these who choose to employ him and to pay his compensation." Frost v. American Surety Co., 217 Mass. 294, 104 N.E. 750, Ann. Cas. 1917A, 583.

We think the mere employment of a detective does not within itself carry any authority to make arrests as agent of the employer.

A detective may become a public officer by appointment from lawful authority. In such event he is answerable for abuse of power as other officers.

We conclude that it was proper in the case at bar to admit evidence that no authority was conferred to make arrests, and that such power was expressly withheld by instructions to the detective. It should be added that all questions or prior employment, and instructions given, would be immaterial if the jury should find from the evidence that in the particular case the detectives did arrest, detain, and search the person of the plaintiff with the knowledge and consent of the employer. In such case any indignity or rude treatement to plaintiff while detained would be within the course of employment.

There was no error in allowing the question to witness Emerson as to whether any "threats" were made at the time plaintiff is alleged to have signed the paper offered in evidence. The question was in the usual form used in laying a predicate for the admission of confessions. Crain v. State, 166 Ala. 1, 52 So. 31. The rule would be different in offering evidence of specific threats as criminating evidence.

On the cross-examination of defendant's witness Van Arsdale he was asked a series of questions to this effect:

"Were you paid a salary, or so much a day while on duty? Did you get $8 a day and your expenses, or some fixed amount a day and your expenses, when you were on duty, or were you on salary?" "I will ask you if

...