Fenn v. Kroger Grocery & Baking Co.

• Decision Date: 04 March 1919
• Docket Number: No. 19767.,19767.
• Court: Missouri Supreme Court
• Parties: PENN v. KROGER GROCERY & BAKING CO.

209 S.W. 885

PENN v. KROGER GROCERY & BAKING CO.

No. 19767.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by M. S. Penn against the Kroger Grocery & Baking Company. From judgment for defendant, plaintiff appeals. Affirmed.

Adolph Kirchner and Bert F. Fenn, both of St. Louis, for appellant.

Conway Elder, of St. Louis, for respondent.

WHITE, C.

Plaintiff brought this action in two counts. The first count sounded in damages for slander, and the second count for false arrest.

On the trial of the cause before a jury in the circuit court of St. Louis the court directed a verdict for the defendant on both counts. The plaintiff, on the overruling of her motion for new trial, appealed to this court.

The slanderous words alleged to have been spoken of and concerning the plaintiff were as follows:

"You," pointing his hand at her, the plaintiff, "didn't pay for those goods."

"You," pointing his hand at her, the plaintiff, "didn't pay for those goods."

"We," meaning defendant, "want those goods."

It is alleged that the plaintiff had purchased certain goods in the store of the defendant, and that the duly authorized agent and manager of the defendant spoke said words of the plaintiff, "intending to charge and did charge and accuse plaintiff of the crime of stealing," and "it was so understood by all those in conversation with and in the presence and hearing of the defendant at the time and place said false and malicious words and statements were spoken."

The petition then alleged the good character and reputation of the plaintiff and humiliation, disgrace, etc., suffered in consequence of such alleged slander.

The second count of the petition alleged that the authorized agent and manager of the defendant within the scope of his employment and performance of his duty wrongfully and maliciously charged the plaintiff with the crime of stealing, and arrested plaintiff by actual restraint of her person in the defendant's store, and forced the plaintiff from the front part of the store to the back part of the store without reasonable or proper cause for so doing, and prevented the plaintiff from leaving the store, and compelled the plaintiff to open her purse and show the change she had in it. This count also alleges the good character and reputation of the plaintiff and the damage caused by the unlawful restraint.

On the trial of the cause the plaintiff was the only witness examined. She testified that she went to the store of the defendant between 1 and 2 o'clock in the afternoon of the 7th of August, 1915; that she bought certain groceries for 56 cents, and two chickens for $1.15. She explained the method by which the purchase was made at that store in this way: It was the custom of the store, when a purchase was made, for the customer to receive a check, take that check to the cashier, and pay the amount. The cashier in turn would give the purchaser another check to be presented to the salesman, and the purchaser then received the goods, which in the meantime had been set apart. She testified that when she bought the 50 cents worth of groceries she received a check and took it to the cashier's desk and waited her turn. When the cashier gave her attention she laid a $10 bill on the desk along with the check which she had received. The cashier changed the $10 bill, took out the amount of the purchase, and returned the balance Of the money to the plaintiff, $9.44. Then she went to the meat department and bought two chickens and received a check; then took that check to the cashier's desk and laid the check on the desk together with $1.15, the amount of the purchase. Then the cashier gave her a check in turn, which she carried back to the salesman, and received the chickens and put them with the groceries in a basket. Plaintiff then started out of the store with her purchases, when an employé of the store came alongside of her and said, "Is this your check?" and she answered, "Yes; that is my check." What Particular check is referred to is not explained but probably the check she surrendered on receiving the groceries. Then some one from the back part of the store "hollowed": "You didn't pay for those goods; we want those goods." Then it seems she recognized the person who was talking as another employé standing back of the counter, Mr. Krause, who said, "You didn't pay for those goods." She continued her story thus:

"Mr. Schrader [the employé who first spoke to her] escorted me back in the store and said again, `You didn't pay for those goods.' I said, `I did pay for those goods; I did Day for those goods.' Then the cashier and Mr. Krause ran over to the cashier's register, and they pulled a metal piece off the top of the cashier's register and, looked at a white roll of paper, and whatever they saw there didn't satisfy them, because Mr. Krause rushed around the counter and said, `I want those goods.' I said, `You won't get those goods; they have been paid for.' * * *

"Q. Tell what happened between Mr. Krause, Mr. Schrader, and yourself. A. I said, `If there is any fault, it is the fault of the cashier, not my fault.' When she gave me the cash for the goods she pushed it back to me. He said, `Let me see your cash.' * * *

"Q. You had backed into the store? Mr. Krause was in front of you when he said to you, `Let us see your change,' whatever it was he said; what happened then? A. When he said that I walked up to the counter.

"Q. Where was he at that time? A. He was alongside of me.

"Q. He walked alongside of you to the counter? A. Yes, sir.

"Q. Like this (indicating)? A. Yes, sir.

"Q. Go ahead. A. I said to them, `Before I open my pocketbook I will tell you what I have in it. I have the change from my $10 bill, I have a $1 bill, and I have a $2 bill tied with a string;' and I took out the change from my $10 and laid it in one place, in one pile on the counter, and I took out the $2 bill that was tied with a string and laid that on another place on the counter, I took out my $1 bill and laid that in another place on the counter.

"Q. While you did that, who else was alongside of you at that time, or near you? A. Mr. Schrader had his face almost over the counter, the cashier moved up, and Mr. Krause right alongside of me.

"Q. While you had that change out there on the counter what remarks, if any, were made by Mr. Krause to you? A. Mr. Krause had his face almost down on top of the change, and he said, `If you had paid for those goods, you would have had more change,' and Mrs. Bishop [the cashier] was in front of me, and she said, `I remember changing a $10 bill, but do not remember if it was yours.' * * *

"Q. What remarks did Mrs. Bishop make to you while counting the money? A. Before I counted the change I took a paper in one hand and a pencil in the other.

"Q. From whom did you get the pencil? A. There on the counter. I wrote down 56 cents, the amount of my groceries, and I wrote down $1.15, the amount I paid for my chickens, and I drew a line and added them together, and it amounted to $1.71; then I turned to the pile where the change was for my $10, and I was nervous and upset, and I counted it wrong; then the cashier, Mrs. Bishop said, `You have got a penny there too much.' I pushed the penny away, and the second time I counted it right, and the $1.71 and the change for my $10 made exactly a $10 bill.

"Q. When she said, `You have a penny too much,' do you know where it came from? A. No; I must have bad that penny in my pocketbook for months. * * *

"A, I said to Mrs. Bishop, `When I took the goods I called to you, when I placed the check on the scales, I said, "Here is the check for the goods."` Then she said, `I didn't see you.' I said, `What is the matter with your eyes.' Then she said, `Don't you dare call me a liar.' I said, `I didn't call you a liar; I said, "What is the matter with your eyes"` Then she said, `I remember I changed a $10 bill, but I do not remember it was you.' Mr. Krause, he said, `If you had paid for the goods, you would have had more change.'

"Q. He said it like that? A. He was away down—yes, sir; loud; everybody in the store heard it.

"Q. Said it loud? How long, to the best of your knowledge, were you in the store from the time that you heard the first remark? A. From 20 minutes to 30 minutes. * * *

"Q. After this change had been counted at the counter and that matter gone into, what, if anything, did you do after that? A. I turned to Mr. Krause and said to him, `Now do you want the goods?' and he said, `No; it is all right, Mrs. Fenn, it is all right.'"

On cross-examination witness stated that the presence of Mr. Krause in front of her with a determined air, saying, "We want those goods," kept her from going out on the side. In answer to the question, "Did he make any effort to strike you or stop you?" she answered, "I stopped him; I said, `You will not get those goods, I paid for them.'

Q. Did you stop him physically? A. No; but my words stopped him."

After testifying that Mr. Krause tried to take the goods...