Bly v. Skaggs Drug Centers, Inc.

• Decision Date: 30 January 1978
• Docket Number: No. KCD,KCD
• Citation: 562 S.W.2d 723
• Parties: Delores BLY and Roland Bly, Appellants, v. SKAGGS DRUG CENTERS, INC., Respondent. 28802.
• Court: Missouri Court of Appeals

Page 723

562 S.W.2d 723

Delores BLY and Roland Bly, Appellants, v. SKAGGS DRUG CENTERS, INC., Respondent.

No. KCD 28802.

Missouri Court of Appeals, Kansas City District.

Jan. 30, 1978.

Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.

Elwyn L. Cady, Jr., Independence, for appellants.

Danny L. Curtis, Niewald, Risjord & Waldeck, Kansas City, for respondent.

Before TURNAGE, P. J., and WASSERSTROM and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Plaintiffs Delores Bly and Roland Bly, husband and wife, brought an action for damages in two counts against Skaggs Drug Centers, Inc. Count one was a claim by Delores Bly for damages for her alleged false imprisonment by Skaggs. Count two was a claim by Roland Bly for damages for loss of consortium as a result of the alleged false imprisonment of his wife. The case was tried to a jury. At the close of plaintiffs' evidence the trial court sustained Skaggs' motion for a directed verdict as to count two of plaintiffs' petition. Count one of plaintiffs' petition, however, was submitted to the jury and resulted in a verdict in favor of Skaggs and against Delores Bly. Following an unsuccessful joint motion for a new trial, both plaintiffs appealed.

The incidents giving rise to this action occurred on July 1, 1972. The jury could have reasonably found that around noon on that day Delores Bly (then Delores Stephenson her marriage to Roland Bly did not occur until the evening of July 1, 1972) went to the Skaggs Drug Store in Raytown, Missouri, to get a prescription for "diet pills" filled. After the prescription was filled, she walked away from the pharmaceutical counter and furtively glanced around the store as she placed the "diet pills" in her purse. She then bypassed the cash register in the checkout area of the store and started to exit the building when she was restrained by David Rogers, assistant manager of the store, for failing to pay for the "diet pills". David Rogers had Delores Bly under surveillance from the time she left the pharmaceutical counter up until the time she was restrained. He did so because the pharmacist who waited on Delores Bly told him over the store's intercom system that the records ¹ of the pharmaceutical department indicated that two or three previous prescriptions filled for Delores Bly were never paid for.

On appeal Delores Bly contends the trial court erred (1) in taking judicial notice of Section 537.125, RSMo 1969, ² and, after doing so, in reading a portion of subsection 3 thereof to the jury, (2) in refusing Instruction No. 2-A (plaintiff's verdict director) which Delores Bly prepared and requested, and in giving Instruction No. 2 (prepared by the trial court) in lieu thereof, and (3) in giving Instruction No. 3 (Skaggs' verdict director). Roland Bly contends the trial court erred in directing a verdict in favor of Skaggs and against him concerning his claim for damages for loss of consortium.

In a very real sense, Delores Bly was responsible for the error she now associates with Section 537.125, supra. During the course of her direct examination, she was permitted to testify (over defendant's hearsay objection) that a police officer who arrived at the store shortly after she was restrained stated that a person had to physically leave the premises of a merchant before they could be apprehended for "shoplifting". Counsel for plaintiff responded to defendant's objection by arguing that the police officer's statement was admissible under the res gestae doctrine (?), and the trial court apparently admitted it on that theory. Immediately prior to the close of defendant's evidence, apparently in an effort to allay any adverse effect the statement attributed to the police officer might have on the minds of the jurors, counsel for defendant asked the trial court to take judicial notice of Section 537.125, supra, and the trial court did so. Defense counsel then asked the trial court to read the first portion of subsection 3 to the jury, and the trial court complied. Counsel for plaintiff objected to the trial court taking judicial notice of Section 537.125, supra, on the ground that it was improper to do so, and on the further ground that there was no evidence to support the defense authorized therein. When these objections failed, and it had become apparent that the trial court was going to accede to defense counsel's request to read a portion of the statute to the jury as evidence in the case, counsel for plaintiff then insisted that the trial court read all of the statute to the jury rather than merely the designated portion, and objected to the trial court's refusal to do so.

As to the first segment of the above evidentiary point, it was not improper for the trial court to take judicial notice of Section 537.125, supra. As stated in Bowen v. Missouri Pac. Ry. Co., 118 Mo. 541, 24 S.W. 436, 437 (1893), "(i)t is a well-settled rule that courts of justice are bound to take judicial notice of public statutes enacted by the legislature of the state where the courts are held." See also: State ex rel. and to use of Gagnepain, 322 Mo. 376, 15 S.W.2d 815, 817 (banc 1929), and Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, 599 (1932). Moreover, there was sufficient evidence from which the trial court could conclude that the defense authorized by Section 537.125, supra, was available to Skaggs. As to the final segment of this evidentiary point, it was "wholly improper" for the trial court to read even a portion of Section 537.125, supra, to the jury. Domijan v. Harp, 340 S.W.2d 728, 734 (Mo.1960). Perforce, reading all of the statute to the jury, as plaintiff's counsel insisted, would have merely compounded the error. Notwithstanding the error committed by the trial court in reading a portion of Section 537.125, supra, to the jury, doing so did not constitute reversible error as the various objections lodged by plaintiff's counsel were fatally remiss in not stating proper grounds for the exclusion of this otherwise inadmissible evidence. Such being the case, Delores Bly's claim of error on appeal falls within the well settled rule that a trial court will not be convicted of reversible error for admitting inadmissible evidence, even though objected to during trial, if the trial objection is not specific or fails to contain the proper ground for its exclusion. Stafford v. Lyon, 413 S.W.2d 495, 498 (Mo.1967); Appelhans v. Goldman, 349 S.W.2d 204, 207 (Mo.1961); Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539 (1950), and Gerald v. Caterers, Inc., 382 S.W.2d 740, 743 (Mo.App.1964). Plaintiff's counsel missed the mark by failing to object on the ground that reading a portion of the statute to the jury constituted an untimely and inappropriate comment or instruction by the trial court on the law in the case under the guise of favorable evidence on behalf of Skaggs.

Next to be considered is Delores Bly's contention that the trial court erred in refusing Instruction No. 2-A, the verdict directing instruction which she prepared and requested, and in giving Instruction No. 2 in lieu thereof.

MAI 23.04, captioned "Verdict Directing False Imprisonment ", reads as follows:

"23.04. Verdict Directing False Imprisonment

Your verdict must be for the plaintiff if you believe:

Defendant intentionally restrained (instigated the restraint of) plaintiff against his will (unless you believe plaintiff is not entitled to recover by reason of Instruction No. ___ (here insert number of affirmative defense instruction ))."

Instruction No. 2-A, tendered by Delores Bly and refused by the trial court, reads as follows:

"INSTRUCTION NO. 2-A

Your verdict must be for plaintiff if you believe:

David Rogers intentionally restrained and instigated the restraint of plaintiff against her will, unless you believe plaintiff is not entitled to recover by reason of Instruction No. ___.

(MAI 23.04) (REFUSED)."

Instruction No. 2, given by the trial court in lieu of Instruction No. 2-A, and over Delores Bly's objection, reads as follows:

"INSTRUCTION NO. 2

Your verdict must be for plaintiff if you believe:

David Rogers intentionally restrained plaintiff against her will,

unless you believe plaintiff is not entitled to recover by reason of Instruction No. 3.

(MAI 23.04) (GIVEN)"

David Rogers' status as Skaggs employee, and the fact that he was acting within the scope and course of his employment at the time, were never questioned.

Delores Bly asserts that Instruction No. 2 prejudicially withdrew from the jury her theory that David Rogers, Skaggs' assistant manager, both intentionally restrained her and intentionally instigated her restraint at the time in question. It is appropriate at this juncture to take note that a party may be held liable for false imprisonment even though he does nothing more than "instigate" the unlawful restraint of another against his will, and "instigate" in this context has been held to mean " 'to stimulate or goad to an action, especially a bad action.' " Checkeye v. John Bettendorf Market, 257 S.W.2d 202, 203 (Mo.App.1953). As a party may be held liable for false imprisonment by either intentionally restraining or intentionally instigating the restraint of another against his will, MAI 23.04, supra, was wisely given a binary dimension by its drafters. The phrase "instigated the restraint of", contained in brackets in MAI 23.04, points up this built-in flexibility. Although the "Notes on Use" and "Committee's Comment" in conjunction with MAI 23.04 make no reference to the bracketed phrase in question, common sense leaves no doubt that alternative submissions are provided by MAI 23.04, the appropriate submission in a given case being dictated by the evidence. The evidence in the instant case discloses that David Rogers, Skaggs' assistant manager, intentionally restrained Delores Bly, as opposed to instigating her restraint in the legal sense obviously connoted by the bracketed phrase in MAI 23.04. All of the evidence viewed in the...