Brown v. P.N. Hirsch & Co. Stores, Inc.

• Decision Date: 27 September 1983
• Docket Number: No. WD,WD
• Citation: 661 S.W.2d 587
• Court: Missouri Court of Appeals
• Parties: Emma BROWN, Plaintiff-Respondent, v. P.N. HIRSCH & COMPANY STORES, INC., Defendant-Appellant. 33,978.

Page 587

661 S.W.2d 587

Emma BROWN, Plaintiff-Respondent, v. P.N. HIRSCH & COMPANY STORES, INC., Defendant-Appellant.

No. WD 33,978.

Missouri Court of Appeals Western District.

Sept. 27, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 29, 1983.

Application to Transfer Denied

Jan. 17, 1984.

Jeffrey T. O'Conner, Kansas City, for defendant-appellant.

J. Michael Cronan, Cronan & Messick, Kansas City, for plaintiff-respondent.

Before TURNAGE, P.J., and PRITCHARD and KENNEDY, JJ.

TURNAGE, Presiding Judge.

Emma Brown filed suit against P.N. Hirsch & Company for false imprisonment and slander. The court directed a verdict in favor of Hirsch on the false imprisonment count, and entered judgment on the jury's verdict in favor of Brown on the slander count for $5,000 actual damages and $100,000 punitive damages.

On this appeal Hirsch contends the court gave an erroneous verdict directing instruction. Reversed and remanded.

This suit arose from an incident which occurred while Emma and her husband, Robert, were in the Hirsch store in Boonville in October, 1980. According to Emma's evidence, the couple had been in the store five to ten minutes looking at various articles when they stopped at a rack holding mens' wallets. This rack was located near the checkout counter. Robert picked up a wallet and handed it to Emma for her to examine and Emma returned it to Robert. According to Emma, Cheetah Maupin, the store manager, approached the Browns at this point and asked "Are you going to pay for it or put it back?" Emma stated that Cheetah accused her of stealing a wallet by placing it in her pocket. Emma said she told Cheetah that she could search her clothing, which Cheetah proceeded to do without finding any wallet. Emma stated that after a heated exchange about the incident, which was conducted in loud language in the hearing of other persons, Cheetah ordered the couple to leave the store. After the Browns left the store Emma went to a nearby restaurant where her mother was employed. Emma cried and told her mother about the events at the Hirsch Store. Emma's mother, Mary Taylor, accompanied Emma, without her husband, back to the Hirsch store.

When Emma and Mary returned to the Hirsch Store, Mary asked Cheetah about the earlier incident. According to Emma, Cheetah replied that Emma had stolen a billfold and that Emma had been in the store every day for a week taking something. Emma denied stealing and Emma and Cheetah again engaged in a heated exchange in loud voices. Cheetah again ordered Emma to leave the store and Mary led Emma away.

Emma's evidence also showed that various employees of the Hirsch Store had been told by Cheetah and other store managers to watch out for young black girls who come into the store to see if they were taking merchandise. Emma is a young black female.

Cheetah's version of the incident was that the Browns were looking at mens' billfolds and she saw Emma put one in her pocket. It was at that point that Cheetah told Emma "I saw that" and that she could either pay for it, put it back, or Cheetah could do something else. Emma took the billfold out of her pocket and threw it across several counters. Cheetah said Emma made several ugly remarks to her and became quite upset. Cheetah denied searching Emma and denied accusing her of stealing on previous occasions.

Cheetah testified that she subsequently told Harvey Fogle, a Boonville police officer that she had caught Emma shoplifting and that Emma had been in the store previously and had taken things. Cheetah also testified that she told Mary Lou Pottus, an employee of a Coast-to-Coast store in Boonville and two employees at the Wee Discount Store in Boonville, that she had caught Emma shoplifting. Emma testified that when she was in these two stores after the Hirsch incident she was followed closely by employees during the time she was in the store.

The court gave the following verdict director patterned after MAI 23.10(1). The verdict director read as follows:

Your verdict must be for plaintiff if you believe:

First, Cheetah Maupin was an employee of P.N. Hirsch and Company Stores, Inc. and was acting within the scope and course of her employment by P.N. Hirsch and Company Stores, Inc., and

Second, Cheetah Maupin stated either:

"She [Emma Brown] was caught shoplifting", or

"She [Emma Brown] stole a billfold", or

"She [Emma Brown] had been in the store before taking things", and

Third, Cheetah Maupin was at fault in making any one or more of the statements submitted in paragraph Second, and

Fourth, such statement or statements referred to in paragraphs Second and Third exposed plaintiff to ridicule or deprived plaintiff of the benefit of public confidence and social associations, and

Fifth, such statement or statements referred to in paragraphs Second, Third and Fourth were heard by one or more of the following: Mr. Robert Brown, Mr. Harvey L. Fogel, Mrs. Mary Taylor, Mrs. Rickie Hammond, or Mrs. Mary Lou Pottus, and

Sixth, plaintiff Emma Brown's reputation was thereby damaged.

Acts were within the "scope and course of employment" as that phrase is used in this instruction even though not specifically authorized by P.N. Hirsch and Company Stores, Inc. if:

1. They were done by Cheetah Maupin to further the business of P.N. Hirsch and Co. Stores, Inc. under the general authority and direction of P.N. Hirsch and Co. Stores, Inc., and

2. They naturally arose from the performance of Cheetah Maupin's work.

The principal contention made by Hirsch is that the above instruction was patterned after MAI 23.10(1) which is for use in cases when no privilege is involved. Hirsch contends that the statement made by Cheetah while the Browns were in the store was qualifiedly privileged and for that reason the verdict director should have submitted the issue of malice as contained in MAI 23.10(2) to overcome the privilege. In this contention Hirsch is correct because the Notes on Use to 23.10(1) state "it is a question of law for the court to decide whether qualified privilege applies. Use MAI 23.10(2) if the court determines qualified privilege is applicable."

Hirsch pleaded qualified privilege in its answer. The store also filed a motion for a directed verdict at the end of Emma's case and at the close of all the evidence alleging the incident in the store gave rise to a qualified privilege which could only be overcome by a finding by the jury of malice on the part of Cheetah. That contention has been carried forth in the motion for new trial and on this appeal. Thus, the relevant question is whether or not Cheetah's accusation that Emma was stealing was qualifiedly privileged.

In Gust v. Montgomery Ward & Co., 229 Mo.App. 371, 80 S.W.2d 286 (1935) the court was confronted with a similar situation. Mrs. Gust and her two sisters-in-law had just left the Montgomery Ward store where they had been shopping and were on the sidewalk in front when a clerk ran out and said "[H]ere these shoplifters are. Give me that merchandise you stole. You stole that merchandise and hid it in your clothes. Some of you hid it in your clothes but you won't get away with it." The court quoted the applicable rule defining qualified privilege as a privilege which:

"[R]elates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, upon a subject matter in which the author of the communication has an interest, or in reference to which he has a duty, public, personal, private, either legal, judicial, political, moral or social, made to a person having a...