Good Holding Co. v. Boswell

• Decision Date: 19 April 1949
• Docket Number: No. 12369.,12369.
• Citation: 173 F.2d 395
• Parties: GOOD HOLDING CO. et al. v. BOSWELL.
• Court: U.S. Court of Appeals — Fifth Circuit

173 F.2d 395 (1949)

GOOD HOLDING CO. et al. v. BOSWELL.

No. 12369.

United States Court of Appeals Fifth Circuit.

March 8, 1949.

Rehearing Denied April 19, 1949.

E. F. P. Brigham and Thomas C. Britton, both of Miami, Fla., and B. K. Roberts, of Tallahassee, Fla., for appellants.

Herbert S. Shapiro, of Miami Beach, Fla., and Siegfried Geismar, of Cincinnati, Ohio, for appellee.

Before SIBLEY, HOLMES and McCORD, Circuit Judges.

McCORD, Circuit Judge.

Frances B. Boswell brought this action against The Good Holding Company, a Florida corporation, Carolyn Good Tucker and Owen Tucker, wherein damages were sought for an alleged malicious prosecution.

The complaint avers that the defendant corporation, acting through its president, Carolyn Tucker, and its agent and servant, Owen Tucker, together with the defendants, Carolyn and Owen Tucker, acting individually, maliciously and without probable cause instituted plaintiff's arrest and criminal prosecution on a charge of embezzlement, which charge was subsequently dismissed, after plaintiff had thereby suffered damages to her reputation, health, and ability to obtain employment.

Defendants, in answer, admitted the arrest and dismissal of the charges, but (1) denied causing the arrest; (2) denied that the charges against plaintiff were filed maliciously and without probable cause; (3) disputed the agency of Owen Tucker for The Good Holding Company and for Carolyn Good Tucker; and (4) alleged that the information and warrant for plaintiff's arrest were filed by the county solicitor of Dade County, Florida, upon independent investigation, and the prosecution was therefore an act of the State of Florida, and was in no way caused by defendants.

The case was tried to a jury, which returned a verdict for plaintiff in the amount of $7,000. A motion by defendants for a new trial was thereafter overruled.

The material facts upon which decision must turn, carefully deduced from a painstaking review of the voluminous record evidence, disclose the following:

In the year 1946, The Good Holding Company owned the Good Hotel, located at Miami Beach, Florida, in which it operated a cocktail lounge and bar, known as "The Music Box Club". Carolyn Good Tucker was the majority stockholder, president, and treasurer of the Company, and with the assistance of a manager, she operated the Hotel and cocktail lounge. In the latter part of January, 1946, upon his release from the Army, Carolyn Tucker placed her husband of a few months, Owen Tucker, in direct management and control of the lounge and bar.¹ Almost from the time he was placed in charge, Tucker, who had never had any previous experience in such work, was convinced that there was "something wrong in the cocktail lounge". A fluctuation in the cost of liquor sales, as revealed by the hotel auditor's report, confirmed his suspicion that employee thefts of either the liquor stock, or money received for liquor sold, were creating the discrepancies. He thereupon reinforced the locks on the liquor store room and display counters, and retained the keys himself. He personally checked every bottle of liquor received and withdrawn. When the losses and discrepancies from the operation of the lounge continued, Tucker began to suspect the cashier and other employees of pocketing money and receipts from sales, and fired a number of employees for that reason, or on that assumption.

In the course of replacing the employees discharged, plaintiff, having been recommended by an employment agency, was interviewed and employed by Tucker on March 18, 1946, as checker and cashier in the lounge. She was the fourth or fifth cashier to be hired by Tucker within a period of less than three months, and when she was accepted for the position, Tucker informed her, "* * * there was quite a bit of stealing going on in the cocktail lounge and that he intended to put a stop to it even if he had to throw everyone in jail in order to get the right one * * *." About this time, Tucker also remarked to a bartender, afterwards discharged, that "he trusted nobody"; that the "previous checker was being fired because he was sticking money right and left in his pocket"; and that "he would teach the people a lesson down here in Miami, and he would put them into jail if he had to put the whole town in jail". This bartender testified that Tucker was "* * * just mean, that's all. * * *"

As checker and cashier, it was plaintiff's responsibility to see that either cash or a signed check was received for each portion of the liquor stock sold. It was also her duty to balance the cash register account against the cash in the till every morning before leaving for home. She was on duty from 5:00 p. m. to 1:00 a. m. six nights per week, and while on duty was never supposed to leave her post, even being required to take her meals behind the cash register. There were two bartenders and two waiters employed in the cocktail lounge with her. At 1:00 a. m. every morning, when the lounge and bar were closed, plaintiff went over the day's receipts and cash on hand under Owen Tucker's supervision. Plaintiff testified that she always stayed after work with Tucker until she balanced her account, as shown by the register, with the cash on hand, even if it took an hour or more to do so. Tucker, however, testified that her account was never balanced but one time; that discrepancies and shortages were always revealed at the end of the working day. In any event, in spite of the innumerable "irregularities" which both Tucker and his wife claimed they saw plaintiff commit during this period, and in spite of her consistent shortages and failure to balance each day's receipts, it is without dispute that plaintiff was never fired, or once threatened with discharge. To the contrary, shortly after she was hired, Tucker employed a Miami detective agency to watch her, the bartenders, and the waiters in the bar and lounge apparently to confirm his suspicion that they were all stealing from the Company. The detective agency had previously advised Tucker that no accurate check on his employees could be made until he first replaced his old cash register in the lounge, an old food register, with a new register which would provide a visible record of the amount of each charge as that charge was made. Tucker thereupon, on March 28th, installed a second-hand cash register which was supposed to record accurately all sales and receipts from the operation of the lounge, but there seems to be some question whether this register was working properly during the time plaintiff was employed.² With this used machine, it then became plaintiff's responsibility to effect an accurate daily balance between the tally of sales visibly recorded by the register, on the one hand, and the cash in the till plus the signed checks on whiskey orders charged to hotel guests, on the other.

On March 29, 1946, one day after the installation of the second-hand register, Tucker and his wife took a trip to Cuba. Before leaving, Tucker, together with two detectives from the agency, took an inventory of the liquor stock in the cocktail lounge. For the next three nights, while the Tuckers were gone, several detectives from the agency kept a constant watch over plaintiff, the waiters and bartenders, to determine if they were stealing either liquor or money from the Hotel. They observed the conduct of these employees and prepared written reports thereon, in which it was stated that plaintiff did not "know how to act in a respectable establishment, but persists in being `rowdy', and thus giving the appearance of being cheap"; and further, that it was evident that "the checker, waiters, and possibly the bartender, are working together". In confirmation of the reports made, both Mr. and Mrs. Tucker and the detectives testified that on numerous occasions they had seen plaintiff register less cash than she received from a customer; ring up a lower charge than the normal price for liquor sold; and transfer money from the till to her purse.

On April 2, 1946, after the return of the Tuckers from Cuba, the detectives and Owen Tucker took another inventory of the liquor stock in the lounge. This second, or "comparison inventory", was later filed with the detective agency and delivered to the Tuckers and it purported to reveal a discrepancy of approximately $311.65 in liquor unaccounted for.³ The written report prepared by two of the detectives, St. John and Canada, was also filed with the agency and thereafter submitted to the Tuckers.

Shortly after receiving the written report from the detective agency, both Mr. and Mrs. Tucker went to the county court house to confer with the County Solicitor of Dade County, Florida.⁴ They showed the Solicitor copies of the inventories and report of the two detectives, but did not bring the original records or papers. Furthermore, they did not inform him that there had been "overages", as well as "shortages" while plaintiff had worked; did not total the alleged shortages against the admitted overages during the same period; did not report the fact that even when they, defendants, had acted as cashier in the lounge after plaintiff was arrested that the discrepancies and shortages had continued;⁵ did not reveal that the cash register on which the inventories and report were based was a second-hand or used machine, and that there had been complaints concerning its accuracy; and failed to disclose that the cocktail lounge and bar had been operated during the afternoons before plaintiff arrived for work by other employees, who also had access to the liquor stock, in order that they might be made subject to an independent investigation by the Solicitor. As a result of this consultation with the Tuckers, and after a subsequent interview with Owen Tucker and the two detectives, St. John and Canada, the County Solicitor drew up an information, and warrants of arrest were thereafter issued for every employee who worked in...