Billingsley v. Kline Cloak Company
| Decision Date | 11 June 1917 |
| Citation | 196 S.W. 415,196 Mo.App. 534 |
| Parties | GERTRUDE BILLINGSLEY, Respondent, v. KLINE CLOAK COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
REVERSED.
Judgment reversed.
Russell Field, R. E. Kalbert and J. C. Rosenberger for appellant.
T. A Milton, J. K. Cubbison and W. G. Holt for respondent.
Defendants are merchants in Kansas City dealing extensively in women's clothing, including hats and shoes, as well as articles of female adornment usually kept in large retail establishments. Plaintiff and her newly married husband, one "Doctor" Ekstrom, went into the store on the 23rd of December, 1914, when she purchased goods for herself amounting to the sum of $ 178, which she put on in one of defendant's dressing rooms. Her husband paid for these in checks which were ascertained to be fraudulent and "bogus" before they left the building and they were both arrested, taken to the police station and there lodged for the night and a part of the next day. She thereafter brought the present action for false arrest and imprisonment and obtained judgment for $ 2500. She alleged in her petition and tried her case on the theory that defendant had no probable cause. She so submitted it by instructions given in her behalf and insists here that she has successfully assumed that burden; and we will consider the case from that standpoint.
Ekstrom was a vagabond whom plaintiff says represented himself to be a wealthy dentist from Omaha. Plaintiff was thirty-four years old. She had been a clerk in a department store and later a professional nurse, at which business she was engaged when the present trouble had its inception. The record of her testimony shows that she is a woman of abundant mental capacity, though her many indiscreet actions show her to lack that reserve becoming to a woman of proper moral sensibility. Her examination, both by deposition and in court, shows that she knew the ways of the world and that she was well able to take care of herself up to the standard by which she chose to be measured. She had been married only once prior to meeting with Ekstrom though, for some reason, she told her first husband that he was her second. They were divorced. During the time she had been living in Kansas city, she visited grill rooms ad cabarets where she frequently drank liquor. She stated that she never drank alone, but frequently did with a companion for sociability.
She first met Ekstrom on a street corner in Kansas City, after night, in the forepart of December, 1914. He approached her with his card, said he was a physician and that he saw by her dress that she was a nurse. They boarded a street car and in twenty minutes he had made love to her. However she gave him her card and they separated by his leaving the car and she proceeded on to where she was engaged in service. During a period of perhaps two weeks, he called her on the phone and finally, at his request, she met him at eight o'clock at night at the Union Station in Kansas City and they drove in company with a friend of hers, to a hotel where the friend was left and they went to the grill room. On the way to the hotel he had flourished a bottle of whiskey but did not drink. At the grill room he drank, but plaintiff could not remember whether she did or not. On this occasion he proposed marriage. She said that it was a business proposition and not supposed to be a love match. The next day, the 19th of December they became engaged and the second day thereafter were married; and he gave a bogus check of $ 25 to the preacher for his fee, the latter paid $ 2.75 protest charges. He told her he was a dentist with a large practice and resided in Omaha. During this short acquaintance and courtship she made no inquiry about him. She did not even inquire where he was staying in Kansas City, saying that it was nothing to her; and after they were married she didn't ask and said she didn't care where he stayed.
Two strange men dined with them at a hotel the night of the marriage and immediately after, he went out with them for a carouse, leaving her behind. He came back in the night "real drunk." She said she did not chide him; that she was not annoyed and when asked if it "bothered her any," answered. "Why no." He had no baggage and just before he retired some of the hotel people came to the door and demanded pay for the room. He went out and had the gentleman called to vouch for him whose wife plaintiff was waiting on. It seems that on next day plaintiff went out to see this lady and that Ekstrom called for her in a cab, but had no money to pay the driver and got it from plaintiff. They drove away and Ekstrom asked her to cash a ten dollar check for him. She agreed to do it but told him that was the last, that she was "tired of it." It was bogus but with the money they went to a Cafe for supper, where they had a drink or, as she called it, "an appetizer." Then (the second night of the marriage) he again went out and when he returned she was asleep and did not know whether he was drunk or not.
The next day was the day of shopping at defendant's store and the arrest. He had nothing with which to pay for their breakfast and she, notwithstanding her vow the day before that she would not, was forced to finance him again. Before going to the store they stopped at a "beauty parlor" where plaintiff had her hair dressed etc., the bill being $ 8.50 was paid for by Ekstrom by a bogus check for $ 10 accepted because of the plaintiff's introduction. This was after Ekstrom had told her that he had been to the bank and arranged for money.
They then went to defendant's store and she testified that all of this time she had seen that he had no money except what she gave him. She introduced him and when asked if she did not represent to defendant that he was wealthy and his checks alright said she did not remember, but she would not deny that she did. She bought a hat for $ 23, a fur coat for $ 125, and a muff for $ 25, a pair of shoes for $ 7 and a pair of gloves for $ 2. She put these articles on in the store; and in addition bought a dress, underwear, etc. She knew Ekstrom was paying for these goods with checks and she said to him: In payment for the hat, coat and muff, he gave his check on the Kansas City bank for $ 173, but defendants soon found that he had no funds there. As plaintiff continued her purchases and while having the dress fitted he remonstrated, but she told him she would do as she pleased and suggested to him that he get another check cashed so that he would have some ready money. He gave his check for the dress and another check for fifty dollars for the shoes, receiving back from defendants $ 43 in change.
When defendants saw that every thing was being paid for by check inquiry was made of the Kansas City bank and word received that he had no funds. When confronted with this he said he forgot to say that his money was in the Omaha banks and that he intended the checks to be drawn on a bank in that city. Inquiry there by telephone resulted in the same answer of no funds. When report was made to defendants that...
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