Ashland Dry Goods Co. v. Wages

Decision Date11 June 1946
Citation195 S.W.2d 312,302 Ky. 577
PartiesASHLAND DRY GOODS CO. et al. v. WAGES.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Boyd County; Watt M. Prichard, Judge.

Action by Nettie Wages against Ashland Dry Goods Company and others to recover damages for false arrest. From the judgment defendants appeal and plaintiff cross-appeals.

Cross-appeal dismissed and judgment affirmed in part and reversed in part.

Caldwell & Gray, of Ashland, for appellants.

P. H Vincent, of Ashland, for appellee.

DAWSON Justice.

This is an action for false arrest. On the afternoon of April 8 1944, the appellee. Mrs. Nettie Wages, accompanied by her daughter and two small grandchildren, entered the department store belonging to the appellant, Ashland Dry Goods Company for the purpose of buying a cap for one of the grandchildren. Mrs. Kemper, a clerk in the store who was known to Mrs. Wages, waited on them and sold Mrs.

Wages a cap which, according to Mrs. Wages' testimony, was placed on the baby's head in the presence of Mrs. Kemper. Mrs. Wages removed the cap the child had been wearing and placed it in her purse. She handed a ten dollar bill to Mrs. Kemper who went to another part of the store for change. In the meantime, her daughter had taken the other grandchild to the rest room, leaving Mrs. Wages and the baby alone near the counter at which she had made the purchase.

After she received her change Mrs. Wages went to another part of the store and presumably waited there for her daughter to return. While she was standing there the appellant, Mrs. Mittenthal, manager of the department from which the cap had been purchased, approached Mrs. Wages, and, according to appellee's testimony said: "Lady, give me whatever you put in your purse. Give me your purse so that I can take it out.' I said I didn't take anything and she said: 'Oh, yes, you did, I know better.' I said: 'I did not; I bought a cap and put it on the baby's head and put the old one in my purse.' She said: 'I want your purse so that I can take out whatever you put in it.' By that time my heart was beating so that I couldn't argue with her. Question: What did she do? Answer: She argued with me and said: 'You cannot leave the store, that is orders.' And I started walking off and she followed me and I said I didn't take anything and she reached over and jerked my purse and took it over to the end of the counter and this girl that reported me was standing there and she unzipped the purse and she took the cap out and laid it down. She didn't give it to anybody. She went on through my purse and I had the little girl sitting there on the counter. I was ready to go down but I knew if I did she would pur something in there and say I took it.' Mrs. Mittenthal took the old cap from the purse and placed it in a bag and returned it to the appellee.

It appears from the evidence that one of the clerks in the store (not Mrs. Kemper) saw Mrs. Wages place the old cap in her purse and informed still another clerk of what she had seen and asked her advice as to what to do. She was advised to report the incident to Mrs. Mittenthal, which she did, and this resulted in the investigation and the incident which is the basis for this action.

It was a rule of the department store that all merchandise must be wrapped before the purchaser left the store with it, and it is contended for the appellants that Mrs. Mittenthal was only performing her duties in making the investigation which resulted in the actions complained of.

According to Mrs. Wages' testimony the incident caused her to become ill and nervous, to such an extent that she was forced to sit down and rest. That same afternoon she consulted a physician with whom she apparently had a previous appointment. It appears that for some years prior to the time the alleged false arrest occurred, Mrs. Wages had been going through a protracted menopause and had been treated for this condition, and for nervousness, by physicians prior to the 8th of April, 1944. According to her testimony the incident at the department store caused her nervous condition to become worse and resulted in additional treatment for that condition.

The case was first tried on November 16, 1944. At that trial the court instructed the jury as follows: 'If you find for the plaintiff you may find for her as against the defendant, Helen Mittenthol, and the defendant, Ashland Dry Goods Company, jointly in a single sum, or against them separately in separate sums of different amounts. If you find for the plaintiff and award her both compensatory and punitive damages, you should separate the two, stating what part, if any, is compensatory and what part, if any, is punitive.'

The jury returned a verdict for the appellee in the sum of $1500, making no separation as to compensatory or punitive damages. The appellants' motion for a new trial was sustained and the verdict and judgment of the jury were set aside.

A second trial was had on February 19, 1945, when the jury returned a verdict in favor of the appellee against both appellants for the sum of $100 for compensatory damages and the sum of $700 for punitive damages. The following day the appellants filed their motion and grounds for a new trial and at the same time filed a motion asking the court to set aside so much of the verdict as awarded punitive damages.

On March 8, 1945, the appellee filed a motion asking the court to set aside the verdict and judgment of the jury on the second trial and to substitute in lieu thereof the verdict and judgment of the jury rendered on the first trial. This motion was sustained by the court and the first judgment was substituted for the second one. Thereafter, on motion of the appellants, the court set aside its previous order of substitution and reinstated the verdict and judgment rendered on the second trial. In the same order the court overruled appellants' motion and grounds for a new trial and this appeal followed.

As heretofore stated, the lower court first substituted the judgment at the first trial for the judgment at the second trial, but later rescinded this order and allowed the second judgment to stand. The appellee excepted to the latter order and has filed a cross-appeal. We shall first consider the cross-appeal.

When the lower court sustained appellants' motion for a new trial following the first judgment, the appellee objected and excepted to the ruling of the court but took no further steps until the motion to reinstate the first judgment was made. She did not pray an appeal and she did not prepare and tender a bill of...

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29 cases
  • Williams v. Wilson
    • United States
    • United States State Supreme Court — District of Kentucky
    • 16 Abril 1998
    ...but to punish and deter wrongdoing. Hensley v. Paul Miller Ford, Inc., Ky., 508 S.W.2d 759, 762-63 (1974); Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312, 315 (1946). In reporting what became Section 54 to the 1890 convention, delegate Ignatius A. Spalding of Union County, chai......
  • Osborne v. Keeney
    • United States
    • United States State Supreme Court — District of Kentucky
    • 20 Junio 2013
    ...v. Paul Miller Ford, Inc., 508 S.W.2d 759, 762–63 (Ky.1974); Bisset v. Goss, 481 S.W.2d 71 (Ky.1972); Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312, 315 (1946); Louisville & N.R. Co. v. Jones' Adm'r, 297 Ky. 528, 180 S.W.2d 555 (1944); Louisville & N.R. Co. v. Roth, 130 Ky. 75......
  • Horton v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • 9 Febrero 1993
    ...as a punishment of the defendant and to discourage the defendant and others from similar conduct in the future. Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312. Restatement of the Law of Torts, Section 908, Subsection (b). [Emphasis added.]Similarly, in Federal Kemper Insurance ......
  • Osborne v. Keeney, 2010-SC-000397-DG
    • United States
    • United States State Supreme Court — District of Kentucky
    • 20 Diciembre 2012
    ...v. Paul Miller Ford, Inc., 508 S.W.2d 759, 762-63 (Ky. 1974); Bisset v. Goss, 481 S.W.2d 71 (Ky. 1972); Ashland Dry Goods Co. v. Wages, 195 S.W.2d 312, 315 (Ky. 1946); Louisville & N.R. Co. v. Jones' Adm'r., 180 S.W.2d 555 (Ky. 1944); Louisville & N.R. Co. v. Roth, 114 S.W. 264 (Ky. 1908). ......
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