Gore v. GORMAN'S, INCORPORATED

• Decision Date: 27 December 1956
• Docket Number: No. 10653.,10653.
• Citation: 148 F. Supp. 241
• Parties: Felix GORE, Plaintiff, v. GORMAN'S, Incorporated, Jules E. Kohn, Registered Agent, Namrog Investment Company, Inc., Jules E. Kohn, Registered Agent, Judge Harry E. Pearce, Robert Q. Lewis and Sam Kenton, Defendants.
• Court: U.S. District Court — Western District of Missouri

148 F. Supp. 241

Felix GORE, Plaintiff, v. GORMAN'S, Incorporated, Jules E. Kohn, Registered Agent, Namrog Investment Company, Inc., Jules E. Kohn, Registered Agent, Judge Harry E. Pearce, Robert Q. Lewis and Sam Kenton, Defendants.

No. 10653.

United States District Court W. D. Missouri, W. D.

December 19, 1956.

As Amended December 27, 1956.

Ray D. Jones, Jr., Kansas City, Mo., for plaintiff.

Jules E. Kohn, Ralph J. Tucker, Solbert M. Wasserstrom, Kansas City, Mo., for defendants.

DUNCAN, Chief Judge.

The plaintiff instituted this suit against the defendants seeking damages in the sum of $50,000 actual damages, and $100,000 punitive damages, for alleged abuse of process. The material facts are not in dispute, and the question for determination is solely one of law. Service was had upon the corporate defendants only, since the individual defendants, being residents of Kansas, are not amenable to process in this district.

Defendant, Gorman's Incorporated, a Kansas corporation, is engaged in the general mercantile business in Missouri and Kansas. Defendant, Namrog Investment Company, Inc., is a subsidiary of Gorman's, Incorporated, and is simply a reversal of the letters in the name "Gorman". It is used by Gorman's, Inc., as the collection agency of its delinquent installment accounts.

Prior to October 26, 1951, the plaintiff owed to the defendant, Gorman's, Inc., an account of $463.46, in consequence of which he executed and delivered to it, a check in the sum of $20 on October 26, 1951. The check, executed in the State of Missouri, drawn upon a Missouri bank and delivered to said defendant in the State of Missouri, was deposited by it in a bank in that state. There were insufficient funds in the drawee bank with which to pay the check, and the amount thereof was not collected by the said defendant, said check being returned. Thereafter, the defendant obtained judgment against the plaintiff in the Magistrate Court of Jackson County, Missouri, on the $463.46 debt, and subsequent thereto, plaintiff filed a voluntary petition in bankruptcy, scheduled this account therein, and was discharged as to his obligation.

It is alleged, and the facts were admitted in oral argument, that on December 11, 1954, said defendant, Gorman's, Inc., acting through its agents and servants, caused a criminal complaint to be filed against the plaintiff in the Justice of the Peace Court of the defendant, Harry E. Pearce, in Wyandotte County, Kansas, charging him with a felony under the laws of the State of Kansas, for drawing the heretofore noted check upon insufficient funds. Pursuant to the issuance of the complaint, a warrant was issued by the said defendant, and plaintiff was arrested and required to give bond.

It is alleged in the complaint that the said defendant caused the warrant to be issued, and used it for the illegal and improper purpose of attempting to force the plaintiff to pay the debt account described heretofore, which, as has been noted, had been discharged in bankruptcy. Furthermore, it is alleged that Gore refused to pay and discharge the indebtedness, retaining an attorney, and that following his arrest, frequent threats were made upon the plaintiff to pay his discharged obligation, which demands were collateral to the process, and an abuse thereof. Plaintiff, in addition, contends that he was compelled to employ counsel in defense of the action brought against him, and that the court's records show that the amount of the $20.00 check was paid by the plaintiff to Gorman's, Inc., when they were not legally entitled to the proceeds therefrom.

It was contended in arguments and briefs filed by the defendants, that the records of the Justice of the Peace show that plaintiff entered a plea of guilty to the charge on the day prior to the day on which the case was set, and that the records show payment of the check. Plaintiff denies that he ever entered any plea of guilty to said charge, or that he ever paid any sum whatsoever on account of the check, although the records of the Justice of the Peace so show. In an affidavit signed by an officer of Gorman's, Inc., it is stated that Gorman's, Inc., received no part of the alleged payment made on the check.

The defendants, Gorman's, Inc., and Namrog Investment Company, Inc., have filed Motion for Summary Judgment under Rule 56, F.R.Civ.P. 28 U.S.C.A. alleging:

"1. Plaintiff's alleged cause of action is barred by the Statutes of Limitations.

"2. Plaintiff's alleged cause of action against these defendants is barred by the judgment entered by this Court on April 19, 1956, in the prior cause Felix Gore, Plaintiff, v. Gorman's Incorporated, Defendant, No. 9643 D.C., 143 F. Supp. 9."

Parenthetically, the court may add that case No. 9643 to which the defendants refer, was another action brought by the plaintiff against the corporate defendants, alleging malicious prosecution because of their effort to collect the same $463 which had been discharged in bankruptcy.

Briefly, the facts in that case were, that the same corporate defendants, after obtaining judgment in the court of Missouri, reduced the amount of their claim of $463 to $300 (to meet jurisdictional requirements), and filed suit against the plaintiff herein, before the same Justice of the Peace in the State of Kansas, plaintiff then residing in that state, and sought to obtain judgment against him, even though the obligation had been discharged in bankruptcy. The evidence revealed numerous threats and acts which the court considered to be illegal acts, to force collection of their judgment. This court entered judgment of $35 actual damages (the amount he paid to an attorney), and $1,000 punitive damages. That judgment was satisfied by the defendants.

The first contention, that the action is barred by the statutes of limitations, is based upon the contention of the defendants that the facts set out in the complaint charged the defendants with false arrest, rather than abuse of process. Such an action, under the laws of the State of Kansas, would be barred by that state's one year statute of...