Bergel v. Kassebaum, 39527

• Decision Date: 19 December 1978
• Docket Number: No. 39527,39527
• Citation: 577 S.W.2d 863
• Parties: Robert W. BERGEL, Plaintiff-Appellant, v. David E. KASSEBAUM, Ronald Conway, and Gale Traiteur, Defendants-Respondents. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 863

577 S.W.2d 863

Robert W. BERGEL, Plaintiff-Appellant, v. David E. KASSEBAUM, Ronald Conway, and Gale Traiteur,

Defendants-Respondents.

No. 39527.

Missouri Court of Appeals, St. Louis District, Division Four.

Dec. 19, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 16, 1979.

Application to Transfer Denied April 10, 1979.

Edward J. Delworth, St. Louis, for plaintiff-appellant.

John C. Livingston, Whalen, O'Connor, Danis & Tobben, St. Louis, for David E. Kassebaum and Gale Traiteur.

W. Munro Roberts, Jr., Roberts, Heneghan & Coffelt, Inc., St. Louis, for Ronald Conway.

SNYDER, Judge.

Suit for damages for false imprisonment against David Kassebaum, an off-duty City of St. Louis police officer, Ronald Conway, a Crestwood police officer and Gale Traiteur, a private citizen, stemming from plaintiff-appellant's arrest on October 5, 1973 at the Crestwood Plaza Shopping Center. The case was tried to a jury. A directed verdict was granted for Traiteur at the close of plaintiff-appellant's evidence. The jury returned a verdict for defendants-respondents Kassebaum and Conway and plaintiff-appellant appeals. Affirmed in part; reversed in part; remanded for a new trial.

Appellant alleges the trial court erred in: (1) denying his motion to direct respondent Conway to make more definite and certain his answer to appellant's first amended petition; (2) granting respondent Traiteur's motion for a directed verdict at the close of appellant's evidence; (3) giving Instruction No. 6 to the jury, respondent Conway's verdict director; (4) allowing respondent Conway to interrogate witnesses about incidents involving advances toward female employees at Crestwood Plaza; (5) refusing to allow appellant to question respondent Conway about his written police report on appellant's arrest; and (6) sustaining respondents' objections to portions of appellant's closing argument.

As a backdrop, it should be noted that there was some apprehension in the community at the time of this incident about the "South County Rapist." A composite sketch of the suspected assailant had been broadcast on television in the St. Louis area. Appellant happened to bear some resemblance to this composite sketch. He also drove a car that matched the general description of the car believed to be driven by the "South County Rapist."

After work on the afternoon of Friday, October 5, 1973, appellant went to Crestwood Plaza to do some shopping and banking. While walking through the shopping mall, he noticed a woman, Susan Kassebaum, seated and holding a baby. Appellant went up to Mrs. Kassebaum and attempted to make conversation with her about the baby. According to him, she appeared unfriendly and he left.

At trial, there were various descriptions of Mrs. Kassebaum's emotional state during and after this incident. Appellant testified she was unfriendly but not upset. Mrs. Kassebaum stated she was frightened, scared and terrified for herself and her child because of appellant's appearance (long hair, sideburns, blue jeans and work shirt). Mr. Traiteur testified she was scared and frightened to the point of being near hysterics and that she attempted to move away and pull back from the appellant while he was talking to her. Mr. Kassebaum testified his wife was extremely upset after the incident, mumbling, crying and clutching the baby.

After appellant left, Mrs. Kassebaum was immediately approached by a bystander, Mr. Traiteur, who asked if she needed help. She told him to find her husband and bring him back, which Traiteur did. Mrs. Kassebaum told her husband that a man who resembled the composite sketch of the "South County Rapist" had touched the baby and "bothered" her. Traiteur and Kassebaum then went to look for appellant and found him at the B. Dalton Bookseller bookstore. Kassebaum identified himself as a police officer, asked appellant some questions and then instructed appellant to come along with him to a phone, where he called the Crestwood Police. When Officer Conway of the Crestwood Police arrived, he had a discussion with Kassebaum in which Kassebaum related the incident between appellant and Mrs. Kassebaum and told Conway that his wife believed appellant resembled the sketch of the "South County Rapist." Kassebaum also told Conway that he (Kassebaum) did not wish to prosecute. After some further questioning, Conway arrested appellant. Kassebaum assisted in handcuffing appellant when appellant made what Conway perceived as a threatening move. Once appellant was placed in the squad car, Conway informed him he was "under arrest for investigation suspect rape and resisting arrest."

At the Crestwood police station, appellant was "booked," questioned and viewed by an employee of a Crestwood Plaza department store who had been harassed at that store by a man who also resembled the "South County Rapist." She could not identify appellant. Appellant was finally charged with resisting arrest and disturbing the peace. He was later found not guilty of those charges in Crestwood Municipal Court.

Appellant's first point is that the trial court erred in overruling his motion to require respondent Conway to make a more definite statement of his affirmative defense. In his answer to appellant's first amended petition Conway stated, by way of affirmative defense, that he "had reasonable grounds or probable cause to believe that plaintiff had committed a wrongful act and to place plaintiff under arrest therefor." Nowhere in Conway's answer is the nature of this "wrongful act" specified.

Accepting appellant's argument that this answer did not raise the affirmative defense of probable cause because of its failure to plead the facts establishing probable cause, appellant tried the issue by implied consent when he failed to object to the introduction of evidence on the defense. Rule 55.33(b); Harris v. Goggins, 374 S.W.2d 6 (Mo. banc 1963). Although the Harris case involved a defendant's motion to dismiss plaintiff's petition for failure to state a claim, the same logic applies here. To preserve the issue for appellate review, appellant must make the motion, object at trial to admission of evidence on the issue (on the ground that it is beyond the scope of the pleadings) and include the issue in his motion for new trial. Appellant failed to object and the issue is not preserved.

However, because the case is to be remanded for a new trial as to respondent Conway, the trial court is instructed to require him to make a more definite statement of his defense. The object of pleading is to form specific and definite issues of fact. Zancker v. Northern Ins. Co. of New York, 238 Mo.App. 110, 176 S.W.2d 523 (Mo.App.1944). Pleadings are not to serve as ambushes. Cook v. Bolin, 296 S.W.2d 181 (Mo.App.1956). Pleadings must state facts, not conclusions. Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353 (Mo.1941). The averment of a legal conclusion is not a statement of fact, and the phrase "wrongful act" is simply a legal conclusion on respondent's part, unsupported by pleaded facts. It is evident from the transcript that the trying of this case would have been aided by a clear statement of the "wrongful act" relied on as the basis of respondent's probable cause defense. A fair reading of Rules 55.04, 55.07, 55.08 and 55.27(d) requires that statement.

Did the trial court err in granting a directed verdict for defendant Traiteur at the close of appellant's evidence?

(1-4) The granting of a directed verdict at the close of the plaintiffs' evidence is a drastic action which should be taken only when all the evidence and reasonable inferences therefrom are so strongly against the plaintiff that reasonable men could not differ. When the party having the burden of proof has adduced substantive evidence on a pleaded issue, that issue should be submitted to the jury and it is reversible error to direct a verdict against that party. In deciding whether the plaintiffs in this case adduced substantial evidence which would require that their theory of (defendant's) negligence be submitted to the jury, it is our duty to view the evidence before the trial judge who directed the verdict against the plaintiffs in a light most favorable to the plaintiffs and indulge in all reasonable inferences from the evidence in their favor. Except when unreasonable or opposed to physical laws, plaintiffs' evidence must be taken as true. However, we must find substantial evidence supporting plaintiffs' claim; a mere scintilla of evidence is not sufficient. Eyler v. Allison, 500 S.W.2d 49, 50(1-6) (Mo.App.1973). (Kaelin v. Nuelle, 537 S.W.2d 226, 229-230 (Mo.App.1976)).

What was the evidence regarding Mr. Traiteur's involvement in appellant's arrest? Appellant testified that while he was being questioned by Kassebaum, at or just outside the B. Dalton Bookseller bookstore, he noticed another person in the background (Traiteur). When appellant and Kassebaum left B. Dalton, Traiteur followed approximately five feet behind them. Traiteur apparently left the scene while Kassebaum was phoning the Crestwood police because appellant did not see Traiteur again until appellant and Kassebaum were seated outside the mall awaiting the arrival of the Crestwood police. He then noticed Traiteur "was behind us and maybe off to my left sometimes." Appellant never heard Traiteur speak to Kassebaum, nor did Traiteur speak to appellant. Appellant admitted on cross-examination that he was not "even sure whether or not Mr. Traiteur knew Mr. Kassebaum."

Appellant completed his case by reading from Mr. Traiteur's deposition. Traiteur stated he was asked by Kassebaum whether he would identify the fellow who had bothered Mrs. Kassebaum. After Traiteur agreed to do that, he and Kassebaum went looking for the man and found him the B. Dalton Bookseller bookstore. He accompanied Kassebaum into the bookstore and observed Kassebaum's conversation with appellant. Kassebaum, having...