Bingham v. Lipman, Wolfe & Co.

• Decision Date: 30 December 1901
• Citation: 40 Or. 363,67 P. 98
• Parties: BINGHAM v. LIPMAN, WOLFE & CO. et al.
• Court: Oregon Supreme Court

67 P. 98

40 Or. 363

BINGHAM v. LIPMAN, WOLFE & CO. et al.

Supreme Court of Oregon

December 30, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.

Action by Ada Bingham against Lipman, Wolfe & Co., Isaac N. Lipman and Adolph Wolfe. From a judgment against Lipman, Wolfe & Co. only, it appeals. Affirmed.

The defendant Lipman, Wolfe & Co. is a corporation engaged in conducting a department store in the city of Portland. The defendants Adolph Wolfe and Isaac N. Lipman are respectively, its vice president and secretary. They are also its managing agents, and, together with Solomon Lipman and Will Lipman, own all the stock of the corporation. For some time prior to March 30, 1899, the plaintiff was employed by the firm as a clerk in one of its departments. About 5 o'clock in the afternoon of the day named, defendant Lipman called her into the office and accused her of having embezzled and appropriated to her own use a portion of the money received by her on the sale of some articles belonging to the firm,--especially a corset sold the day before. According to her testimony, she was compelled to remain in the store without food or drink, or an opportunity of seeing or consulting her friends, until 25 minutes after 11 o'clock at night, when, in order to obtain her liberty she was compelled by threats and intimidation to promise to pay to the firm $92.50,--the estimated value of the goods alleged to have been stolen by her. On the next day she called at the store and paid $30 of her own money and $5 which belonged to the firm, but thereafter refused to make any further payment, and a few days later brought this action against the corporation and Lipman and Wolfe individually. The complaint, after setting out the corporate capacity of the defendant Lipman, Wolfe & Co., the official relations of the other defendants thereto, and the employment of the plaintiff, avers, in substance, that the three defendants unlawfully and maliciously conspired together for the purpose of extorting money from the plaintiff, and, to that end unlawfully to charge her with the crime of larceny in the storehouse of the defendant corporation; that, in pursuance of such conspiracy, she was induced to go to their private office, under the pretext that the managers desired to see and speak to her on business; that they then and there charged her with having committed larceny in the store, and threatened that she would be arrested and publicly charged with the crime, and thereby disgraced and held up to the contempt of the community, unless she admitted her guilt and made restitution for the property alleged to have been stolen; that notwithstanding such threats she protested her innocence, and refused to admit that she was guilty of any offense or to turn over any property whatever, whereupon the defendants caused her to be locked up in the store, and to be kept therein from 6 until 11 o'clock, without food or drink, during which time she was not permitted to see any of her friends; that she remained in the store so unlawfully imprisoned during all the time mentioned, and, in order to purchase her freedom, was compelled by the defendants to release her claim to $9 due her for wages, and to promise to pay an additional sum of $92; that the plaintiff was thus maliciously and wantonly deprived of her liberty for about the space of five hours, was accused by the defendants of having committed the crime of larceny, and threatened with the disgrace of arrest, and was thereby compelled, in order to be released from her imprisonment, to pay them the money referred to; that the defendants, one and all, knew that plaintiff had committed no crime whatever, and that the conspiracy and all of the acts done thereunder by the defendants were with the sole intent on their part of extorting money from her; that, by reason of the acts and conduct of the defendants, she has been and is damaged in the sum of $10,000. A motion to strike out the complaint, and also portions thereof, upon the ground that two causes of action, viz. for false imprisonment and extortion, were improperly united, was overruled. A demurrer thereto upon the same ground being also overruled, defendants answered jointly, denying the material allegations of the complaint, and, for an affirmative defense, alleging that, while the plaintiff was employed by the defendant Lipman, Wolfe & Co., she embezzled and fraudulently converted to her own use money and property belonging to the firm in the aggregate amounting to $92.75, which she voluntarily and without solicitation on the part of the defendants, or any or either of them, offered to repay, and did, on the 31st of March, after the matters set forth in the complaint had occurred, voluntarily and without solicitation on the part of the defendants, pay to the firm the sum of $30. A reply was filed, putting in issue the new matter alleged in the answer, and a trial resulted in the following verdict: "Ada Bingham v. Lipman, Wolfe & Co. We, the jury impaneled to try the above-entitled cause, find for the plaintiff, and assess her damages at $2,000." Judgment was thereafter rendered upon this verdict in favor of the plaintiff and against the defendant corporation only, from which it appeals.

Wirt Minor, for appellant.

Henry E. McGinn, for respondent.

BEAN C.J. (after stating the facts).

It is contended that two causes of action are improperly united in the complaint,--one, for false imprisonment; the other, for conspiracy to extort money. But in an action for trespass the plaintiff may charge and prove all the circumstances accompanying the act, and which were a part of the res gestae, in order to show the temper and purpose with which the trespass was committed, and the extent of the injury, under the rule that a series of unlawful acts, all aimed at a single result, and contributing to the injury complained of, may be averred in the complaint without violating the rule against duplicity. Oliver v. Perkins, 92 Mich. 304, 52 N.W. 609; Rice v. Coolidge, 121 Mass. 393, 23 Am.Rep. 279. To constitute duplicity in a pleading, it is not enough that it appears therefrom that the plaintiff has more than one cause of action, but it must appear that he relies on more than one as a ground of recovery. "In order to constitute duplicity," says the supreme court of Connecticut, "it is not sufficient that a count in a declaration shows merely that the plaintiff has various causes of action against the defendant, although the contrary might be inferred from the general and loose definitions of duplicity in some of the elementary treatises on Pleadings. It is necessary, further, that those various causes of action, or more than one of them, should be claimed and relied on as distinct grounds of recovery. *** For if it appears that the plaintiff seeks to recover upon only one of them, and makes no claim on any of the others, as a distinct, additional, or independent ground of recovery, the mere circumstance that he has other valid claims against the defendant, which he might, but does not, seek to enforce in the suit, ought not to deprive him of a recovery on the cause of action on which alone he seeks to recover. And in such a case there must be no multiplicity of issues, to avoid which duplicity is discountenanced." Raymond v. Sturges, 23 Conn. 133, 145. In Brewer v. Temple, 15 How.Prac. 286, the complaint alleged that the defendant made an assault upon the plaintiff, and then and there published and declared in the presence and hearing of other persons certain slanderous words of him, whereby he was greatly injured in his person, character, feelings, and circumstances. Upon demurrer to the complaint on the ground that two causes of action--one for assault and battery, and the other for slander--were improperly united, the court held the objection not well taken, and that the complaint contained but a single cause of action, because all the allegations related to a single transaction, and were a part of the res gestae. The same rule is announced by Mr. Bliss in his work on Code Pleadings (2d Ed., § 292), and by the following authorities: Hildebrand v. McCrum, 101 Ind. 61; Conaughty v. Nichols, 42 N.Y. 83; Miller v. Bayer, 94 Wis. 123, 68 N.W. 869.

On the trial a Mrs. Jester, who had been charged by the managing officers of the corporation with having embezzled and appropriated to her own use certain property belonging to the firm, was called as a witness. It appears from the bill of exceptions that the plaintiff offered to show by her that on the 31st day of March, 1899, the defendant Wolfe told her they had made an agreement with the plaintiff to pay $92.50 and if she (Mrs. Jester) would pay $100 her offense would be kept from the public, but, if not, they would send her "over the road to the fullest extent of the law," and at the same time said to her: "You have got a husband to support you, and you have some property. Out there in the outer office there is a woman [referring to the plaintiff]; she has no money; she has nothing at all; and still we made her pay us $30, and she is going to pay us what little she is able to earn from now on." Objection to the admission of such testimony on the ground that it was immaterial, irrelevant, and incompetent was overruled, and such ruling is...