Efroymson v. Smith

Decision Date18 March 1902
Docket Number3,446
Citation63 N.E. 328,29 Ind.App. 451
PartiesEFROYMSON ET AL. v. SMITH
CourtIndiana Appellate Court

Rehearing denied June 20, 1902.

Transfer denied June 25, 1902.

From Marion Superior Court; J. M. Leathers, Judge.

Action by May E. Smith against Gustave A. Efroymson and others for damages for false imprisonment. From a judgment for plaintiff, defendants appeal.

Affirmed.

C. L Holstein, J. S. Berryhill and W. B. Hubbard, for appellants.

G. W. Woods and F. McCray, for appellee.

OPINION

ROBY, J.

Appellee alleged in her complaint that she entered the store of the appellants to purchase shoes for her daughter; that after obtaining permission of the clerk to take the shoes to the opposite side of the room to show them to her daughter, who was in defendants' employ, at the jewelry counter, she started across the room with the shoes for that purpose, but, before reaching her daughter, one West, a watchman, and Smith, foreman, while acting in the line of their employment for defendants, without right, without her consent, and violently, took hold of her, accused her of stealing shoes, and, without her consent, took her into a small alcove or small apartment connected with said store, and demanded that she give up and restore to them the articles they alleged she had stolen, and wrongfully and unlawfully restrained her of her liberty without her consent, and so restrained her until the clerk who had given her permission to take the shoes across the room explained the matter, when she was released; that there were many people in the store who witnessed the occurrence, and that by reason of these acts she was shocked, humiliated, and insulted to such an extent that she was confined to her home with nervous prostration for many days; that her reputation was damaged, etc. The issue was formed by a general denial.

The sufficiency of the complaint was questioned by a demurrer, which was overruled. After the evidence was closed the appellee was permitted to amend by inserting the words "without her consent" where they now appear in the pleading. This action of the court is assigned for error. The sufficiency of the complaint as amended is presented here by an assignment of error. There was no error in allowing the amendment. § 399 Burns 1901; Raymond v. Wathen, 142 Ind. 367, 372, 41 N.E. 815. The demurrer to the complaint does not apply to the amended complaint. Tague v. Owens, 11 Ind.App. 200, 38 N.E. 541. The amended complaint being questioned for the first time in this court, is good if it states facts sufficient to bar a second action. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 572, 47 N.E. 147. The pleading shows that appellee was unlawfully restrained from her liberty by force. It is therefore sufficient. Boaz v. Tate, 43 Ind. 60, 64; Hildebrand v. McCrum, 101 Ind. 61.

It is averred that the acts complained of were done by "certain agents, employes or clerks then in the service or employ of said defendants, to wit, one William West, a watchman, and one Smith, foreman in said store, while acting in the line of their employment for said defendant," etc. The appellants invited the public to become their patrons, and to visit their place of business. The appellee accepted their invitation, and had a right to personal protection while at the store, especially as against the agents and servants of the appellants themselves. Dickson v. Waldron, 135 Ind. 507, 520, 24 L. R. A. 483, 41 Am. St. 440, 34 N.E. 506. The appellants were responsible for the acts of the agents performed while engaged in the discharge of duties within the general scope of the agency, although the particular act was wilful, and not directly authorized. Kingan & Co. v. Silvers, 13 Ind.App. 80, 88, 37 N.E. 413; Pennsylvania Co. v. Weddle, 100 Ind. 138, 140; Pittsburgh, etc., R. Co. v. Sullivan, 141 Ind. 83, 88, 27 L. R. A. 840, 50 Am. St. 313, 40 N.E. 138.

The first instruction given by the court contained a statement of the material averments of the complaint, but did not give the jury any direction as to what their verdict should be. The sixth instruction was to the effect that if the jury should find from the evidence that the facts averred in the complaint (specifying them) were proved, the verdict should be for the plaintiff. It also stated the opposing hypothesis with the direction that upon such facts the verdict should be for the defendant. These instructions, taken together, fully and fairly stated the issue. Craig v. Frazier, 127 Ind. 286, 26 N.E. 842. The fourth instruction stated that "False imprisonment consists in imposing an unlawful restraint upon one's freedom of locomotion or action." The definition is conceded to have been correct. 12 Am. & Eng. Ency. of Law (2d ed.), 721, and notes. It further defined "imprisonment" as "the deprivation of the liberty of another without his consent." The definition was correct (2 Kent's Com., 26), and was applicable to the evidence. The tenth instruction...

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    ... ... (Ohio & M. Ry. Co. v. Cosby, 107 Ind. 32, ... 7 N.E. 373; Indiana Union Tract. Co. v. McKinney, 39 ... Ind.App. 86, 78 N.E. 203; Efroymson v. Smith, 29 ... Ind.App. 451, 63 N.E. 328; Birmingham etc. Ry. Co. v ... Lintner, 141 Ala. 420, 109 Am. St. 40, 3 Ann. Cas. 461, ... 38 So. 363; ... ...
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    ...where the attack is made for the first time on appeal. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147;Efroymson v. Smith, 29 Ind. App. 451, 63 N. E. 328;Cleveland, etc., Ry. Co. v. Baker, 24 Ind. App. 152, 54 N. E. 814;Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831;City of Sout......
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    ...the jury so acted, a cause will not be reversed under numerous decisions of both this court and the Supreme Court. Efroymson v. Smith, 29 Ind. App. 451, 456, 63 N. E. 328;Southern Indiana Gas Co. v. Tyner, 49 Ind. App. 475, 97 N. E. 580, 587;Louisville, etc., R. Co. v. Kempter, 153 Ind. 618......
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    ...(Ind. Sup.) 71 N. E. 201. The complaint would have repelled a demurrer, and is sufficient as against the attack made. Efroymson v. Smith, 29 Ind. App. 454, 63 N. E. 328. The second assignment of error is that the court erred in overruling the appellant's motion for a new trial. The grounds ......
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