Himont v. S. S. Kresge Co.

• Citation: 291 S.W. 159
• Decision Date: 11 January 1927
• Docket Number: No. 19574.,19574.
• Parties: HIMONT v. S. S. KRESGE CO.
• Court: Court of Appeal of Missouri (US)

291 S.W. 159

HIMONT v. S. S. KRESGE CO.

No. 19574.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Rehearing Denied February 21, 1927.

Appeal from St. Louis Circuit Court; Henry A. Rosskopf, Judge.

"Not to be officially published."

Action by Boyd M. Vimont against the S. S. Kresge Company. Judgment for plaintiff, and defendant appeals. Reversed.

Bryan, Williams & Cave, of St. Louis, for appellant.

H. L. Dyer and T. J. Hoolan, both of St. Louis, for respondent.

BENNICK, C.

This is an action for alleged false imprisonment. The verdict of the jury was for plaintiff for $5,000 actual damages and $5,000 punitive damages. The trial court subsequently ordered a remittitur, which was accepted by plaintiff, reducing the amount of recovery to $2,000 actual damages and $1,000 punitive damages, and judgment was thereupon duly rendered, from which defendant has appealed.

The petition alleged that defendant requested the police department to arrest plaintiff; that, in pursuance of such request, he was arrested and charged with being suspected of a crime; that he was subsequently discharged; and that the arrest was unlawful, wanton, and malicious.

The answer of defendant was a general denial, coupled with an affirmative allegation tending to show probable cause. The reply was conventional.

The evidence disclosed that on December 28, 1922, plaintiff purchased certain merchandise at defendant's store in the city of St. Louis, giving his check in the sum of $6.87 in payment therefor. On January 3, 1923, said check was returned to defendant by the bank on which it was drawn, bearing the notation "No account." As a matter of fact, however, the bank was in error in so marking the check, but instead should have returned it marked "Insufficient funds." Upon the return of the check, Mr. B. P. Shirley, defendant's manager, telephoned police headquarters, in response to which call Officer Laneken came to defendant's place of business toinquire into the matter. Shirley thereupon gave the check to Lancken, advising him of the fact as to its having been given by plaintiff and returned by the bank marked "No account." Officer Lancken testified in part as follows:

"Q. What did he tell you to do, Officer? A. Well, we talked it over, and he was undecided, and I asked him if he wanted to prosecute this man. He said he didn't know, but he thought the check ought to be turned over to the police department.

* * * * * * * *

"Q. What did he tell you to do with this check, Mr. Lancken? A. Why, he said he didn't know just exactly what to do with it, but he thought the check ought to be turned over to the police department.

* * * * * * * *

"The Court (Q.): Tell us what he said? A. I asked him if he would prosecute this man if arrested. lie didn't seem to state either way. very much. If he had, I would have put it in my report. It wasn't put in my report."

Miss Markham, defendant's. cashier, who had received the check, was called into, the conference by Shirley, and gave Lancken a description of plaintiff. Lancken then returned to headquarters, where he made his report and turned same in with the check attached to the desk sergeant. About 8:30 o'clock that evening plaintiff was arrested at his home by certain officers of the Seventh District at the request of the Central District, and was held prisoner until shortly after midnight, when he was released on bond. No warrant was ever issued, and subsequently plaintiff was discharged on the bond.

Mr. Shirley, who was called as a witness by plaintiff, testified as follows:

"Q. Did you telephone police headquarters? A. I did.

"Q. As a result of that telephone call, Officer Lancken, whom you have seen here, appeared. A. Yes, sir.

"Q. What did you say to him when he came to see you? A. I said, `This is a check returned to me marked 'No account'; I thought you fellows ought to have it;' and gave it to him.

"Q. What did he say to you? A. He said 'All right; I will turn it in.'

"Q. Did you tell him what sort of looking man Mr. Vimont was? A. I did not.

"Q. Did you call Miss Markham in to tell him what sort of a looking man Mr. Vimont was? A. Yes, sir.

"Q. Did you discuss with him the residence of Mr. Vimont? A. No, sir.

"Q. You had the sales slip which gave his residence? A. Yes, sir.

"Q. Did you communicate that address later to the police department? A. I am not sure about that. I believe it was also on the check.

"Q. Was the description of Mr. Vimont as given by Miss Markham made in your hearing? A. Yes, sir.

"Q. Officer Lancken told you they would arrest Mr. Vimont as soon as they could find him, didn't he? A. He told me nothing of the kind.

"Q. You knew he was going to arrest him, didn't you? A. I did not know. I turned it over to him in the regular procedure.

"Q. For that purpose? A. No, sir.

"Q. Well, you know the police department is not a collection agency, don't you? A. I don't know what they are."

Defendant first assigns that the court erred in overruling its demurrer to the evidence requested at the close of the whole case. In tloe consideration of this point, we are not unmindful of defendant's suggestion that plaintiff based his action upon the specific allegation that defendant requested his arrest. However, we are constrained in our discussion herein not to confine ourselves within mere technical limits, but to determine the question of defendant's liability by applying the law as we understand it to the facts in evidence, giving plaintiff the benefit of all evidence adduced in his favor and of all reasonable inferences of fact to be drawn therefrom.

In an-action for false imprisonment, it is not essential that plaintiff prove that defendant actually ordered, requested, or directed his arrest; but he may make his case by showing that defendant merely instigated it. Wright v. Automobile Gasoline Co. (Mo. Sup.) 250 S. W. 368: State ex rel. v. Trimble, 294 Mo. 615, 242 S. W. 934; Wright v. Hoover, 211 Mo. App. 185, 241 S. W. 89; Martin v. Woodlea Inv. Co., 206 Mo. App. 33, 226 S. W. 650. Furthermore, such fact may be shown either by direct or by circumstantial evidence. Wright v. Automobile Gasoline Co. and Wright v. Hoover, supra.

Owing to the peculiar nature of the...