Gust v. Montgomery, Ward & Co.

• Decision Date: 04 March 1935
• Docket Number: No. 5523.,5523.
• Citation: 80 S.W.2d 286
• Court: Missouri Court of Appeals
• Parties: FLORINDA GUST, APPELLANT, v. MONTGOMERY WARD & COMPANY, RESPONDENT.

80 S.W.2d 286

FLORINDA GUST, APPELLANT, v. MONTGOMERY WARD & COMPANY, RESPONDENT.

No. 5523.

Springfield Court of Appeals. Missouri.

March 4, 1935.

Rehearing denied March 27, 1935.

Appeal from Jasper County Circuit Court. — Hon. R.H. Davis, Judge.

AFFIRMED.

Thompson & Roberts and Russell Mallett for appellant.

Paul E. Bradley and Charles M. Grayston for respondent.

BAILEY, J.

Plaintiff brought suit to recover damages on account of certain slanderous words used toward her by one of defendant's employees in its store in Joplin, Missouri. On trial to a jury, plaintiff, appellant here, recovered a verdict in the sum of $1500. Thereafter the trial court sustained defendant's motion for new trial and plaintiff has appealed from the order granting the new trial.

The motion for new trial contained a number of grounds, one of which was, that the trial court erred in refusing to give an instruction for defendant in the nature of a demurrer to the evidence offered at the close of the whole case. A further ground set up was that the verdict was against the weight of the evidence. The trial court, however, sustained the motion on the ground that there was no evidence to support the verdict and not upon the theory that the weight of the evidence was against the verdict. Had the motion been sustained upon the latter ground, it would be upheld on appeal without a review of the evidence, in the absence of a showing that the trial court had abused its discretion in granting one new trial. [Somerville v. Stockton, 178 Mo. 121, 77 S.W. 298.]

The motion having been sustained upon the former ground, we are required to review the evidence in order to determine if there was offered any substantial evidence on behalf of plaintiff to support the verdict. [Gates v. Dr. Nichols' Sanatorium, 55 S.W. (2d) 424, 331 Mo. 754.]

First referring to the pleadings, the petition alleged that one of defendant's employees, a floor supervisor in defendant's store located on a prominent business corner in Joplin, did, on the 24th of December, 1933, follow plaintiff and others who were with her, onto the sidewalk in front of the store, and in a loud and angry voice falsely and maliciously accused plaintiff and the others who were with her of being "shoplifters" and that they had stolen merchandise and hid it in their clothes and that "shoplifters don't steal anything off my floor and get away with it;" that she was going to get the merchandise if she had to tear their clothes off. Defendant filed an answer denying that the alleged words were spoken by the said Irene Hoffman, but setting up that if such words were spoken, the occasion was one of privilege and there was therefore no liability on the part of defendant.

The evidence on behalf of plaintiff, as shown by her own testimony, was that she lived in Crestline, Kansas, a short distance from Joplin; that she was thirty-two years of age and married to Dewey Gust, a farmer; that on the 23rd day of December, 1933, she came to Joplin with her sister, Gladys Titus, and her two sisters-in-law, Daisy Hurst and Gladys Hurst, for the purpose of buying a coat for her mother; that she went into the east door of the Montgomery Ward & Company store in Joplin and to the back of the first floor, up the stairs to the second floor and then to the east or front end of the second floor to the women's department, where the coats and dresses were, and that she did not notice at that time that there were any dresses there; that she did not go inside the coat department but stood at the door while the others went in and looked at a coat on a model; that they failed to find any coat that was suitable and she and her companions then walked back to the west end of the store and stopped for a moment near the doorway where someone was exhibiting a mechanical toy; that they then went downstairs and through the store to the front door; that "as they stepped outside the door to the entrance way of the building Daisy Hurst, Gladys Hurst and herself stopped to look in the window, together with Gladys Hurst's little boy, and Gladys Titus walked on down the street a short distance; that Gladys Titus had a coat in a box which was taped up which she had purchased at another store; that she and all of her companions had packages and things in their arms which they had purchased; that a clerk, Irene Hoffman, rushed out of the store and grabbed Daisy Hurst as she and her two companions were standing looking into the window; that the clerk, Irene Hoffman, grabbed Daisy Hurst, jerked open her coat and said, `Here these shoplifters are;' that she was talking in a loud tone of voice and drew a large crowd, opened her coat and felt under her arms and said, `These shoplifters, you stole something off my floor and I am going to get it if I have to tear your clothes off right here on the street,' and said, `Shoplifters don't steal anything off my floor and get away with it; all of you stand still or I will call an officer and have you put in jail;' that the clerk, Irene Hoffman, then grabbed the witness (plaintiff) who was standing next, jerked her coat open, tore her dress down the side, all the time talking as loud as she could talk; that a large crowd gathered around; that she felt under the witness coat and in her packages; that the witness did not know any of the people in the crowd for sure; that she was too nervous and excited and didn't pay any attention; that after the clerk had jerked her coat and torn her dress she kept saying, `Here these shoplifters are,' and `I am going to get this merchandise,' `Some of you stole it and I am going to find it,' `Shoplifters don't steal anything off my floor;' that the clerk was screaming at the top of her voice; that she grabbed Gladys Titus and jerked a button off her coat and looked under her arms and looked in Daisy Hurst's packages; that the clerk jerked open a pair of socks and story book which the witness had with her."

The witness further testified that "the clerk never asked their consent to search them; that she told the plaintiff and her companions to stand still or she would call an officer and have them put in jail; that the clerk felt under the sweater of Gladys Hurst's little boy, ran and jerked open the box out of Gladys Titus' arms and opened it and looked in it and said, `Some of you has this merchandise and I am going to find it if I have to tear your clothes off you;' screamed and hollered; that her sister, Gladys Titus, said, `What is going on?' and the clerk, Irene Hoffman, said, `That is all right, that is all right, stand still or I will call an officer and have you put in jail;' that she had never been arrested and didn't want to be and was very excited."

The witness further testified that, "the clerk then ran back into the store and the witness and her companions followed her in and to the back of the store; that the clerk ran upstairs and when she saw she was followed turned around and ran back downstairs all the time hollering, `That is all right; that is all right' and then disappeared."

The witness testified that, "they then asked for the manager, had a talk with him, the manager told them that he didn't know anything about what happened and then afterwards he said he sent her out there; that he was mistaken; that the clerk was responsible for stuff stolen; that the witness never circulated any reports as to what happened at the store on that afternoon; that she subsequently was told that it was being said that she had been accused of shoplifting."

The witness testified that, "when the clerk made the statements in front of the store the witness noticed she had a brown silk dress hanging on her arm; that the plaintiff and her companions had taken nothing or attempted to take anything from the store; that they had touched nothing in the store."

CROSS-EXAMINATION.

On cross-examination the witness testified as follows: "That when she was upstairs near the coat department she noticed several people near the toy department but did not see anyone except the clerks back in the ready-to-wear department; that one of the clerks asked some one of the plaintiff's companions if they wanted anything and they said they didn't think so; that neither the plaintiff nor her companions got together and held a whispered conversation; that she did not see any of them stop and appear to be examining furniture as they went out; did not notice any furniture; that a few minutes after the clerk came outside a crowd of seventy-five or 100 gathered around the front of the store; that the clerk was out in front of the store probably five minutes; that she talked loud so that she might be heard two blocks away."

Plaintiff's companions gave testimony practically the same as above set forth, except that none of the others estimated that Irene Hoffman could have been heard talking two block away at the time of the accident, but rather that she could have been heard across the street or a few feet. One witness for plaintiff, who was of her party, did not hear the words spoken of and to plaintiff, although she was but a few feet away.

Irene Hoffman testified on behalf of defendant that she was a saleslady in charge of the ladies' ready-to-wear department of defendant's store; that on the 23rd of December, 1933, plaintiff, Florinda Gust together with the other ladies, all of whom were unknown to her at that time,...