Hammargren v. Montgomery Ward & Co.

• Decision Date: 08 March 1952
• Docket Number: No. 38487,38487
• Citation: 241 P.2d 1192,172 Kan. 484
• Parties: HAMMARGREN et al. v. MONTGOMERY WARD & CO. et al.
• Court: Kansas Supreme Court

Page 1192

241 P.2d 1192

172 Kan. 484

HAMMARGREN et al. v. MONTGOMERY WARD & CO. et al.

No. 38487.

Supreme Court of Kansas.

March 8, 1952.

Rehearing Denied April 18, 1952.

Syllabus by the Court.

1. In an action for false arrest where one of the defendants was employed as a store detective by the other, the record is examined and it is held (a) that the question of whether one of the defendants requested, caused or instigated the arrest of the plaintiff was for the jury, (b) that the question of whether the defendant, the store detective, was authorized to cause, request, or instigate the arrest of plaintiffs was for the jury, and (c) there was substantial evidence that the defendant store detective had authority to act for the other defendant, her employer, and (d) there was sufficient evidence of malice on the part of defendants so as to warrant the trial court in giving an instruction on punitive damages.

2. In an action such as that described in the first paragraph of this syllabus, a printed page from a report of the financial condition of one of the defendants, a corporation, was admitted in evidence over the objection that it was hearsay--Held the page was inadmissible because it was hearsay and because it related to only one of the defendants and no instruction limiting its consideration was given--Held further the error of the trial court in admitting this page was not so prejudicial as to require a new trial.

3. In an action such as that described in the first paragraph of this syllabus, it is held (a) the question of whether a verdict and judgment is so large as to shock the conscience of the court must be decided by consideration of all the surrounding facts and circumstances, (b) the surrounding facts and circumstances were such as to require a holding that the verdict and judgment for actual damages was too large.

4. There is no fixed rule by which the amount of punitive damages may be measured.

5. In assessing punitive damages, the nature, extent and enormity of the wrong, the intent of the party committing it and generally all the circumstances attending the particular transaction, together with any mitigating circumstances tending to reduce the verdict or wholly defeating the damages may be considered.

6. In an action such as that described in the first paragraph of the syllabus, the record is considered and it is held that while the verdicts and judgments for both actual and punitive damages are too large, the fault is such as may be cured by a remittitur such as is ordered in the opinion.

Emmet A. Blaes, of Wichita, argued the cause and W. D. Jochems, J. Wirth Sargent, Roetzel Jochems, Robert G. Braden, S. C. Durbin and J. Francis Hesse, all of Wichita, were with him on the briefs for appellants.

Lloyd M. Kagey and Payne H. Ratner, both of Wichita, argued the cause and Max L. Hamilton, Keith Eales, Ora D. McClellan, Eugene L. Pirtle, Louise Mattox, Payne H. Ratner, Jr., Keith Sanborn, Edgar M. Miner and Gerald L. Michaud, all of Wichita, were with him on the briefs for appellees.

SMITH, Justice.

This action was to recover for damages alleged to have been sustained when plaintiffs were caused to be falsely imprisoned by defendants. Judgment was for the plaintiffs and defendants have appealed.

There were two actions, one by the wife and one by the husband. They were consolidated in the trial court and tried together. They have been presented in this court as one appeal. Hereafter the pleadings will refer to the pleading in the case of the wife since they are identical with the exception of the names. At the outset, the George Innes Company, one Wertz and one Marshall, as well as Montgomery Ward and Company and one Wehby were defendants. During the course of the trial plaintiffs dismissed as to the George Innes Company and Wertz. The demurrer of Marshall to the evidence was sustained and the trial proceeded against Montgomery Ward and Wehby.

The petition alleged the identity of the parties; that R. G. Marshall was an agent and employee of Montgomery Ward and the acts performed by him were in the course of his employment; that defendant Wehby was the store defective in the retail store for Montgomery Ward and the acts performed by her were in the course of her employment; that Wertz was employed by the George Innes Company as a floor walker and supervisor.

The petition then alleged that on September 29, 1948, the plaintiff was making a purchase of merchandise in the Montgomery Ward store with her husband; that they gave a check in the amount of the purchase price for some merchandise to an employee of defendant, together with identification and credit cards; that after waiting an unreasonable length of time she, with her husband, went to the office of the defendant and found an employee of defendant, who stated that she had been unable to find anyone to approve the check; that the check and identification cards were returned to her husband and he destroyed the check and left the store; that she, with her husband, then went to the George Innes Company store; that shile so engaged in shopping in that store Marshall and Wehby, agents and employees of Montgomery Ward, entered the George Innes Company store and consulted with Wertz and one of the defendants called the Wichita police department and requested a police officer to be sent to the store; that about four o'clock on the 29th of September, 1948, Montgomery Ward using its agents and employees Marshall and Wehby and George Innes Company through its agent and employee Wertz, all of them acting in the course of their employment unlawfully, maliciously and wilfully and without cause caused the plaintiff to be taken into custody by an officer of the Wichita police department and to be transported against her will to the police station with the intent to injure her; that she was compelled by force to accompany the police officer, whereupon she was imprisoned and restrained of her liberty for a period of more than one hour, all without cause and without any right or authority and against her will, all at the direction of each and every one of the defendants, whereby she was humiliated and mortified and her character and credit discredited and such false imprisonment caused her credit and standing to be injured; she was prevented from attending to her necessary business during the time she was falsely imprisoned and her health was impaired so it was necessary that she be under the care of a doctor, all on account of this false imprisonment; that neither Montgomery Ward, George Innes Company, Marshall and Wehby nor Wertz filed and complaint or formal charge against her.

The petition then alleged because of these unlawful, wilfull and malicious acts she had suffered actual damages in the amount of $10,000 and punitive damages in the amount of $20,000.

She prayed for judgment for that amount.

The answer of Montgomery Ward, Goldie Wehby and R. G. Marshall was a general denial.

The petition of the husband was identical.

The jury returned a verdict in favor of the wife in the amount of $10,000 actual and $10,000 punitive damages and for the husband $7,500 actual and $10,000 punitive damages. It answered special questions as follows:

'No. 1. Q. Was the conduct of Wallace F. Hammargren at the Montgomery Ward store in Wichita in presenting a check drawn on a bank in Cambridge, Minnesota, and then, when there was a delay in getting it approved, tearing it up, of such a nature as to cause a reasonable, cautious person to become suspicious of his character or intentions? Answer: No.

'No. 2. Q. Do you find that when Goldie Wehby communicated with Officer Donald Walters in the George Innes store, that she acted in good faith and as a reasonable, cautious and prudent person would do under the circumstances? Answer: No.

'No. 3. Q. If you answer question No. 2 in the negative, state in what regard she failed to act in good faith or as a reasonable, cautious or prudent person would have acted under the circumstances. Answer: She acted with undue haste, with lack of sufficient facts, malice of legal nature, and with lack of proper motive based on no reasonable grounds.

'No. 4. Q. Whom if anyone, do you find requested Officer Walters to bring the plaintiffs to the detective office for questioning? Answer: Lt. Cook.

'No. 5. Q. Do you find that when the plaintiffs accompanied Officer Donald Walters from the George Innes Company store to the office of Detective Frieson, they did so voluntarily or involuntarily? Answer: Involuntarily.

'No. 6. Q. If, in answer to question No. 5 you find that the plaintiffs accompanied the officer involuntarily, state what the police officer said or did to cause the plaintiffs to go to the police station involuntarily. Answer: Officer Walters asked the plaintiffs to go to the police station with him to talk to the Lt. When the plaintiffs asked Officer Walters if they had to go with him, Officer Walters said, 'Yes, you have to go.'

'No. 7. Q. If you find for either of the plaintiffs and award punitive damages for such plaintiff, state what malice or wrongful motive you find prompted the defendants, or either of them, and on account of which such punitive damages are allowed. Answer: Pursuit of said plaintiffs to Geo. Innes Co. store with lack of proper motive, insufficient evidence, and causing them to be taken into custody by the Police constitutes legal malice and sufficient wrongful motive in itself.'

The defendants, Montgomery Ward and Goldie Wehby, filed a motion for judgment and to set aside special findings and for a new trial as follows:

'1. That judgment be entered against the plaintiffs and in favor of these defendants for the reason that no cause of action has been stated or proved against these defendants.

'2. For judgment, notwithstanding the general verdict, upon the Jury's answers to the Special Interrogatories, particularly Interrogatory No. 4.

'3. In the alternative, that the answers to...