Gerald v. Caterers, Inc., 23993

• Decision Date: 05 October 1964
• Docket Number: No. 23993,23993
• Citation: 382 S.W.2d 740
• Parties: Marion GERALD, Plaintiff-Respondent, v. CATERERS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 740

382 S.W.2d 740

Marion GERALD, Plaintiff-Respondent, v. CATERERS, INC., Defendant-Appellant.

No. 23993.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1964.

Don B. Roberson, Kansas City, Alan Wherritt, Liberty, for appellant.

Robert B. Wurdack, Kansas City, Wilbur L. Pollard, North Kansas City, for respondent.

HUNTER, Judge.

This is a suit by plaintiff, Marion Gerald, against Caterers, Inc., for damages allegedly resulting from a false arrest and imprisonment caused by defendant. As a result of a jury trial, plaintiff obtained a judgment for $.25 actual damages and $2,000 punitive damages. This appeal followed defendant's unsuccessful motion for a judgment in accordance with defendant's motion for directed verdict or in the alternative for a new trial.

The two questions presented on appeal concern the admissibility of certain statements by plaintiff as to who instigated his arrest, and the correctness of the trial court in overruling defendant's motion for a directed verdict. We limit our factual statement to the matters helpful to an understanding of those questions.

Plaintiff, a thirty-six year old married man with four children, for some time had been an employee of defendant as a fountain man at the Allen's Drive-In in North Kansas City. He also held another full-time job, working a total of about sixteen hours a day. He advised his supervisor, Mr. Cummings, at Allen's that he was going to quit that job at the end of the week as the two jobs were 'getting him down'. Mr. Cummings advised him he was sorry to see him go as he was a good worker. He worked the remainder of the week and left on Saturday night, a week before pay day.

On May 6, 1960, approximately $45.00 in money was missing from near the cash register at Allen's Drive-In. This loss was not discovered until after the four employees on that shift, including plaintiff, had gone home. Cummings telephoned Howard Carter, defendant's area manager, and reported the loss. Carter came to the drivein and he and Cummings reported the loss to Lt. Mann and another policeman who had stopped at the drive-in. Lt. Mann advised Carter he would like to talk to the employees, and he returned the next night and talked to two of them. A third employee did not return to work and has not been seen since. Lt. Mann stated he requested Cummings to tell him when plaintiff returned to the drive-in.

On May 12, 1960, plaintiff telephoned Mr. Cummings at Allen's Drive-In to see if it was convenient for him to pick up his pay check. Although the pay check was not at Allens, Cummings told him to come and get it. Cummings then called the police and advised them that plaintiff was coming to Allen's. He also called Mr. Carter and told him of plaintiff's call. Carter asked him if he had called the police and he said, 'Yes'.

When plaintiff arrived at the drive-in to get his pay check he went to the vicinity of the cash register where Mr. Cummings was. Cummings told him 'Just a minute.' Cummings then gave a nod to two plain clothes policemen who were present. The two policemen came up, one of them asked plaintiff his name and advised he was taking plaintiff to police headquarters to ask him some questions 'which won't take but a few minutes, then you can go.' Plaintiff asked him, 'What for. He said he would explain it down at the police headquarters. He didn't want to upset the people while they was eating.' One of the two policemen, Officer Gillis, told plaintiff while they were still at the drive-in that he was 'under arrest for investigation.'

After arriving at the police station plaintiff was interrogated and advised that it was money missing from the drive-in that was involved. Although plaintiff denied any knowledge concerning it, he was held overnight in jail and released about 8:30 a. m. the next morning. No charge was ever filed against him.

Turning to the evidence question, a chronological statement of the pertinent events is helpful. 'Q. The question was: Did the police officer inform you who complained against you, in Mr. Cummings' presence? A. No. The police officers, officer said that Mr. Carter had me picked up for questioning. Mr. Roberson: Objected to, because--THE COURT: That he said what? I didn't hear that. THE WITNESS: Mr. Carter--THE COURT: Uh huh. THE WITNESS:--was having me picked up for questioning, which he said it wouldn't take but a few minutes down at police headquarters, then they'd let me go. THE COURT: Was that in the presence of Mr. Cummings? THE WITNESS: Mr. Cummings was standing there, but the place was full of people, sir, I don't know whether he overheard the conversation or not. THE COURT: Go ahead, overruled.' At this point we pause to note that the 'objection' made did not contain any grounds therefor.

After additional testimony in chief, plaintiff was cross-examined by defendant's counsel and especially as to whether it was at the jail rather than at the drive-in, and outside the presence of any employee of defendant, that he was told by the policeman that it was Mr. Carter who complained against him and had him picked up for questioning. Upon such questioning plaintiff clearly and repeatedly stated that it was at the police station and outside of the presence of defendant's employees that the statement was made. At this point defendant's counsel made no objection to the repeated statements of plaintiff that he was told by a policeman that it was Mr. Carter who complained against him and had him picked up for questioning. Nor did defendant's counsel make any objection to the earlier evidence on the subject, and did not move to have it stricken.

After plaintiff left the stand as a witness, other witnesses for plaintiff were called, examined and cross-examined, but not on the subject of who instigated or directed plaintiff's arrest and imprisonment.

The next day at the close of all the evidence on plaintiff's behalf defendant's counsel stated, 'The defendant at this time files its (oral) motion to strike all conversation that, and all testimony that was adduced and given by the plaintiff with respect to the conversation, all acts that he testified to as occurring at the police station, as well as motioning to strike all purported statements given by unidentified officers at that police station at the time in question. The defendant states that at the time this information was solicited from the plaintiff by direct testimony the defendant objected on the basis of hearsay and the self-serving declarations of the plaintiff, and the Court overruled those objections. And at this time the defendant motions to strike all testimony given by the plaintiff with reference to conversation he had and that conversation officers had with him at the police station again upon the basis it was hearsay and self-serving, prejudicial to this defendant.' The trial court overruled the motion to strike.

It is the rule that if a party to a lawsuit desires to object to hearsay evidence, the objection must be promptly made or he will be deemed to have waived the objection. If, however, there is nothing in...