Dunlevy v. Wolferman

• Decision Date: 07 March 1904
• Citation: Dunlevy v. Wolferman, 106 Mo. App. 46, 79 S.W. 1165 (Kan. App. 1904)
• Parties: GRACE DUNLEVY, Respondent, v. FRED WOLFERMAN, Appellant
• Court: Kansas Court of Appeals

79 S.W. 1165

106 Mo.App. 46

GRACE DUNLEVY, Respondent, v. FRED WOLFERMAN, Appellant

Court of Appeals of Missouri, Kansas City

March 7, 1904

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

Judgment affirmed.

Grant I. Rosenzweig for appellant.

(1) Instructions must not cite evidence or matters immaterial or calculated to mislead. Elliot v. Keith, 32 Mo.App 588; Georgan v. Wabash, 40 Mo.App. 447; Rapp v Vogel, 45 Mo. 524; Willis v. Stevens, 24 Mo.App. 504; Proctor v. Loomis, 35 Mo.App. 488; Felix v. Shirley, 60 Mo.App. 625; Koontz v Kauffman, 31 Mo.App. 420; State v. Hibler, 149 Mo. 478; Barr v. Kansas City, 105 Mo. 558; Newall v. St. Louis, 5 Mo.App. 259. Matter about following on a public street is misleading. Keightl v. Egan, 65 Ill. 237. (2) An instruction on slander where the words have either a bad or an innocent meaning, is erroneous unless the jury is required to find evil intent. Odgers on L. and S. 53; Crystal v. Craig, 80 Mo. 373; Walker v. Hoefner, 54 Mo.App. 558; Unterberger v. Sharp, 51 Mo.App. 111. (3) The words "having" and "taking" are not synonymous or equivalent. Proof even of equivalent words is insufficient. Mix v. McCoy, 22 Mo.App. 493; Wood v. Hillbrush, 23 Mo.App. 398; Crystal v. Craig, 80 Mo. 374; Birch v. Benton, 26 Mo. 153. (4) Arrest is not accomplished in the absence of intent, physical detention or threats, with a display of present force reasonably calculated to induce reasonable fear of present violence in the mind of a reasonable person. And the elements, if omitted from evidence or instruction, are fatal. Same is true of assault. Ency. of Evidence, "Assault;" 2 Greenl. on Evidence, 83; Metcalf v. Connor, 5 Litt. (15 and 16 Ky.) 370; Sterns v. Sampson, 59 Me. 568; Dagenhardt v. Heller, 93 Wis. 662; State v. Stonestreet, 92 Mo.App. 220; Douglass v. Kansas City, 147 Mo. 428; McCaskey v. Garnett, 91 Mo.App. 359; Reichle v. Bentele, 97 Mo.App. 52. (5) Nor unless there is fear of violence founded upon reasonable basis. 1 Blackstone 130; Wilkinson v. Hood, 65 Mo.App. 491. (6) An instruction authorizing damages for emotion for a legal wrong without requiring the jury to find either bodily injury or malice, insult or oppression, is error. Deming v. Chicago, 80 Mo.App. 152; Alvers v. Merchants, 138 Mo. 140.

Joseph S. Rust for respondent.

Filed lengthy argument.

OPINION

ELLISON, J.

This is an action for damages. There seems to be joined in one count of the petition a complaint against defendant which, if true, would make him guilty of slander and of false imprisonment. But no question was made of this in the trial court and we accept the case as presented there. Plaintiff recovered and defendant appealed.

Defendant is the proprietor of a general retail grocery store, where he also sold fresh meat. The system by which sales were conducted was that as they were made the salesman would give to the customer a check which was numbered and upon which he put the amount of the purchase. If the customer made purchases of different clerks he would get a corresponding number of checks. These were taken by the purchaser to the cashier and were there paid. Plaintiff, an unmarried woman, and her married sister went into the store to make purchases. They bought two articles (neither of them being meat) received two checks with amount of their purchases thereon, made payment to the cashier and left the store, going down the street in a southern direction. Just before they left the store the meat salesman had notified defendant's general manager that some one had got meat of him and had not paid the check to the cashier. The manager became impressed in some way that the delinquent parties were plaintiff and her sister and silently watched them until they left the store, when he started in pursuit of them, bareheaded. He overtook them in about half a block and excitedly caught plaintiff by the shoulder, turned her around and said: "You have some meat you didn't pay for." Plaintiff denied having any meat, when he said, "You have! You have a check there for the meat that you didn't pay for!" She again denied and said she was not about the meat counter, when he said: "You did! And you will have to go back to the store with me! You both will have to go back to the store!" All three then went back to the store and to the meat counter where the manager said to the salesman: "These are the ladies who got the meat!" The salesman said they were not the persons and then the manager said: "You must excuse me;" and plaintiff replied that she would not; that she would have him arrested. The manager's manner was excited and rough when he overtook plaintiff and laid hold of her shoulder. His being bare-headed, his rapid gait and his excited talk and manner when he stopped them, caused a crowd to assemble and to follow them back to the store and there (some of them) await the outcome. The plaintiff and her sister were much frightened as well as greatly humiliated. They were entirely innocent. The manager, however, was undoubtedly honestly mistaken.

The court gave for plaintiff two instructions. One of these was merely as to the damages which could be assessed. The other merely recited the case as made for plaintiff, and instructed that if those things were believed to find for her. It was certainly very general. It did not tell the jury what would be slander, or arrest, or false imprisonment. But all complaint which defendant makes on this head he cured by himself getting from the court a full and complete explanation of what was necessary to constitute slander, arrest or imprisonment. Eleven instructions were given for him, nine without amendment by the court, and two with some change properly made. So there can be no doubt whatever that the instructions as a series gave the jury the fullest information on all things which could be invoked in defendant's behalf.

Taking the petition and the evidence thereunder as we have in a condensed way set out, we have only to decide whether such evidence, if believed, made a case for which defendant must answer in damages, and we have no doubt that he did. The fact that defendant was honestly mistaken will not excuse a false and slanderous charge. Odgers on Libel and Slander, 6, 153, 264. Honest belief in the truth of the charge is only a mitigation. Storey v. Early, 86 Ill. 461; Davis v. Marxhausen, 103 Mich. 315, 61 N.W. 504; King v. Root, 4 Wend. 113; 18 Amer. & Eng. Ency. 1112.

And so in actions for false imprisonment honesty of purpose and intention will not excuse the trespass. Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223; Monson v. Ross, 86 Mo.App. 89. It takes less to constitute false imprisonment than malicious prosecution. McCaskey v. Garrett, 91 Mo.App. 354. There is a distinction stated which is to be borne in mind: that false imprisonment is an interference with the personal liberty of the party complaining which is unlawful and without authority. In malicious prosecution the arrest would be by process lawful and regular in itself, but sued out from malicious motives and without probable cause. Yet, in false imprisonment, as in slander, honest intentions and mistake will constitute mitigation. 12 Amer. & Eng. Ency. (2 Ed.), 725, 726.

The evidence undoubtedly justified a finding of a forced detention. Overtaking plaintiff on the street in the manner already stated, taking her by the shoulder, making the accusation and saying, "You will have to go back to the store; you both will have to go back to the store;" the fright it gave plaintiff and the fear with which she was impressed, afforded ample ground for the jury to find that she was...