Daniel v. Phillips Petroleum Co.

• Decision Date: 11 June 1934
• Docket Number: No. 18122.,18122.
• Parties: JAMES G. DANIEL, RESPONDENT, v. PHILLIPS PETROLEUM CO. ET AL., APPELLANT.
• Court: Missouri Court of Appeals

73 S.W.2d 355

JAMES G. DANIEL, RESPONDENT, v. PHILLIPS PETROLEUM CO. ET AL., APPELLANT.

No. 18122.

Kansas City Court of Appeals. Missouri.

June 11, 1934.

Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Madden, Freeman & Madden and Sebree, Sebree & Shook for respondent.

McCune, Caldwell & Downing for appellants.

SHAIN, P.J.

In the case at bar, respondent who was the plaintiff and will hereinafter be so designated, brought this action for damages against the appellants, defendants below, so designated hereinafter, predicating his claim for damages in two counts, to-wit: One for false arrest and the other for malicious prosecution. At the conclusion of the evidence, plaintiff elected to stand on the count for false arrest.

The evidence discloses that the plaintiff, together with one William Kitchen, had driven from plaintiff's home at Glasgow, Missouri, to Kansas City, Missouri on a pleasure trip. Kitchen it appears furnished the car and the plaintiff was to pay for the gasoline and oil on the trip.

On the way home the plaintiff and his companion stopped for service at a filling station, the property of the defendant company, a corporation. The filling station, at the time, was being operated for the defendant company by its agent, Frank T. Reilly defendant herein. Defendants allege that Reilly was operating on a commission basis.

The plaintiff and his companion reached this station, situate near the intersection of Linwood Boulevard and 31st Street, at about nine P.M. on August 17, 1931, and called for gas service. While Reilly was serving their car, the plaintiff and his companion went to the toilet, the entrance to the toilet was through the office wherein was a desk and a money drawer. The young men returned from the toilet and plaintiff started to pay for the service, when his companion interfered stating that he had the exact change.

It appears in evidence that Reilly's wife and step-daughter had driven to the station and were in a position to see into the office from where they were sitting in their car. After plaintiff and his companion had gone, Reilly's wife asked him about his money. It appears from the evidence that, prior to being called to serve plaintiff's car, Reilly had taken the station money out of his work clothes and laid it loose in an open money drawer preparatory to transferring same to his other clothes. Upon inquiry from his wife, he went into the station and exclaimed, "it is all gone." His wife then informed him that the men he had just served took the money. Reilly, thereupon, gave chase in his car, overtook the young men and stopped them on the road and demanded the money he charged they had taken, amounting to about thirteen dollars ($13). Upon the boys protesting their innocence, Reilly still charged them with taking same and requested that they return to the station, which they did, closely followed by Reilly in his car. When they arrived at the station, the defendant's wife identified only Kitchen. Thereafter, the police station was called by Reilly and it was reported that some money had been stolen from the station; that two boys were there and asked that someone be sent out to investigate. The police came and plaintiff and his companion after some parley were taken to the police station and afterwards were incarcerated in the hold-over or jail with other prisoners. On the following morning, the young men were placed in what is known as the show-up room for criminals and were questioned by officers. It appears that when the case of the young men was called in court, an attorney for the Phillips Petroleum Company, defendant herein, after some inquiry refused to prosecute and the case was dismissed.

The plaintiff's petition conforms to the usual pleadings in false imprisonment cases and the defendant, Phillips Petroleum Company, files its separate answer pleading general denial and following with:

"Defendant further alleges and states that immediately after plaintiff and his companion, William Kitchen, left the filling station referred to in the petition, defendant Reilly's wife and daughter who had been present at the filling station premises stated to defendant Reilly that they had seen one of the two, plaintiff or said Kitchen, furtively take a sum of money, thought to be approximately thirteen dollars ($13) from the cash register in said filling station, and whatever action said Reilly took thereafter was taken in the belief that a crime had been committed, and neither this defendant nor its executive or managerial officers had any knowledge of any action taken by said Reilly or by Don Carlos until many hours after whatever action they took had been completed."

The defendant Reilly filed a separate answer pleading a general denial and following with:

"Defendant further alleges and states that immediately after plaintiff and his companion, William Kitchen, left the filling station referred to in the petition, defendant's wife and daughter who had been present at the filling station premises stated to defendant that they had seen one of the two, plaintiff or said Kitchen, furtively take a sum of money, thought to be approximately thirteen dollars ($13) from the cash register in said filling station, and whatever action said Reilly took thereafter was taken in the belief that a crime had been committed."

On the issues thus made up, a trial was had by jury resulting in a verdict for the plaintiff and against both defendants for twenty-five hundred dollars ($2500) compensatory and twenty-five hundred dollars ($2500) punitive damages. Judgment was entered to conform to the verdict and a separate judgment was entered as to each defendant; the defendants filed separate motions for a new trial and the court overruled each motion; the defendants filed separate affidavits for appeal and the cause is here on appeal under the conditions stated above. The appellants present but one brief.

Under head of "statement," both sides, in the briefs, present long drawn out arguments based upon the writer's interpretation of the evidence from the standpoint of the respective evidence produced in behalf of the side of the cause represented. We would urge the practice of a plain and concise statement of the facts free from argument.

The defendants' assignment of errors is notable for the fact that there are many general assignments of error, but with only a few direct specifications of error that are made specific as to reasons therefor, or with reference given as to where matters complained of could be found in a record composed of 462 pages.

We, to the end of classifying, embrace in paragraph form as perheading and subheading what defendants present under "Points and Authorities," as follows:

"I. Defendants having at all times exculpated plaintiff Daniel of any guilt or blame cannot be held liable for his arrest by the police.

"II. There was no actionable arrest or detention of plaintiff Daniel prior to the action of the police officers in taking him to the police station.

"II-A. Even if there were a technical arrest prior to the police officers taking plaintiff to the police station, the verdict is excessive as to any damages suffered thereby.

"III. Reilly's mere calling of the police and reporting the facts to them does not render defendants liable for whatever the police subsequently decided to do.

"III-A. Reilly's wife and daughter, having definitely identified Kitchen alone as being guilty of the theft and having exculpated plaintiff, the action of the police in taking plaintiff into custody was clearly for their own purposes and on their own responsibility.

"IV. Any statements or requests by Reilly for the arrest of plaintiff Daniel, if made, were not in the scope of his employment and the Phillips Petroleum Company is not liable therefor.

"IV-A. Plaintiff admitting that Reilly had clearly stated that he had no authority to act for the corporate defendant, his words or actions cannot be taken as being those of the corporation.

"IV-B. Mrs. Lela Reilly and her daughter, Beatrice Morris, not being employees of the Phillips Petroleum Company, no liability can be found against the corporate defendant by reason of their acts or statements.

"V. There was no ratification by the Phillips Petroleum Company of the arrest of plaintiff.

"V-A. The telephone conversation with station supervisor Don Carlos cannot avail to sustain liability upon the corporate defendant. There was no evidence of any authority on his part to instigate a prosecution or ratify an arrest.

"VI. There was no evidence to justify the award of punitive damages.

"VII. Regardless of the propriety of allowing punitive damages as against Reilly, there is nothing in the case to justify the imposition of punitive damages as against Phillips Petroleum Company.

"VIII. The verdict and judgment for punitive damages is excessive.

"IX. The verdict for compensatory damages is excessive.

"X. The form of verdict and the instruction with reference thereto are erroneous as not distinguishing between Reilly and the corporate defendant as to awarding punitive damages."

Proceeding to classify what is presented above, arguendo and otherwise, we conclude that when boiled down the defendants are making claim that there is no liability, for the reason that there was reasonable cause for the arrest; that no liability is attached to the defendant company by reason of acts of its agent Reilly, for the reason that same did not come within the scope of his authority; that there is no evidence upon which to base punitive damages; that the verdict is excessive; that no liability attaches by reason of the acts of d...