Bernheimer Bros. v. Becker
| Citation | 62 A. 526,102 Md. 250 |
| Parties | BERNHEIMER BROS. v. BECKER. |
| Decision Date | 23 November 1905 |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas; George M. Sharp, Judge.
Action by Lena Becker against Bernheimer Bros. Judgment for plaintiff, and defendants appeal. Reversed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, JONES, and BURKE, JJ.
Randolph Barton, Jr., for appellants.
Richard A. Miller, Jr., and John C. Kumpf, for appellee.
The appellee, Lena Becker, sued the appellants, individually and as copartners, in the court of common pleas of Baltimore City for damages for an assault and battery and a false arrest and imprisonment. The two causes of action were alleged in separate counts in the narr. The appellants, as defendants below, pleaded non cul. The trial of the case resulted in a judgment for the plaintiff, from which they appealed.
Two exceptions appear in the record. The first was taken to the court's refusal to withdraw the case from the jury at the close of the plaintiff's testimony, but the defendants lost the benefit of that exception by going on with their case and failing to again raise the question by asking for the same instruction at the close of the whole testimony. Barabasz v. Kabat, 91 Md. 53, 46 A. 337; B. & O.R.R. v. State, Use of Logsdon, 101 Md. 359 61 A. 189. The second exception brings up for review the rulings of the lower court on the prayers offered at the close of the case, and the special exceptions taken to some of them.
In order to properly pass upon the questions presented by this exception, it will be necessary to advert to the more important facts appearing in the evidence. It appears from the records that the appellants, Ferdinand and Herman Bernheimer, as copartners, conduct a department store in Baltimore City, and Leo Seligman is the manager of their shoe department. There is also evidence in the record tending to prove the following facts: On March 14, 1904, the appellee having gone to the Bernheimer store to purchase shoes for her infant child, selected a pair from a lot of shoes exposed for sale upon a counter, and then started, with the pair she had selected in her hand, to go to a near-by counter to select another pair from the shoes thereon exposed for sale. As she was leaving the first counter, Seligman walked up, caught her by the arm, and compelled her, against her protest and attempted resistance, to go with him to the elevator and upstairs, and into a room into which Herman Bernheimer, one of the defendants, entered at the same time. Seligman said something, which the plaintiff did not hear, to Bernheimer, who replied to him: "You search her." Seligman thereupon, without her permission or assistance, took off her gossamer, opened her coat and took it off, and opened her skirt. Nothing having been found on her, Bernheimer said: She put on her clothing and went home and told her husband of the occurrences, and showed him bruises on her arm, which she said were made by Seligman's rough handling of her. Her husband went to Bernheimer Bros.' store, where he saw Mr. Ferdinand Bernheimer, and complained of what had happened to his wife. Mr. Bernheimer went upstairs and found out what he wanted, and came down again and ordered the husband off the premises, and gave him no satisfaction. There was, on the contrary, evidence directly contradicting the plaintiff's account of the treatment she received at the store, and tending to prove that she had taken the pair of shoes from the counter, put them under her cape, and started to walk away, not toward the other shoe counter, but toward the elevator. Seligman's attention having been called to her actions by an employé of the store, who had seen them, he followed her, and, when she got near the door, she turned and dropped the shoes. Seligman picked them up, whereupon she said to him: "I never did anything like that before, I hope my husband won't find it out"--and voluntarily went with him to the office on the second floor, where she paid for the shoes and he wrapped them up for her, and she carried them away. Seligman and Herman Bernheimer both positively testified that neither they nor any one else had searched or even taken hold of her at any time at the store. At the close of the case the plaintiff offered eight prayers, of which the court granted Nos. 1, 2, and 3a, and refused the others. The defendants offered nine prayers, of which the court granted the fifth and refused the others. The plaintiff specifically excepted to two of the defendants' rejected prayers, and the defendants specially excepted to four of the plaintiff's rejected prayers, and also to her prayers 2 and 3a, which were granted, and their exceptions were overruled.
It is unnecessary for us to notice the special exceptions of the respective parties to prayers which were subsequently overruled. There was no error in granting the plaintiff's first prayer, which merely declared that any deprivation of the liberty of another without his consent, whether by violence, threats, or otherwise, constitutes an imprisonment, within the meaning of the law.
The plaintiff's second prayer, which was also granted, does not correctly state the law of the case in that it directs the jury that, if they find the facts therein stated, the plaintiff is entitled to recover generally, without limiting her right to a recovery against Herman Bernheimer. The facts which the prayer requires the jury to find are her arrest by Seligman, and her detention and search by him in the presence and by the direction of Herman Bernheimer, and, also, that Seligman, in the transactions...
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