Hoene v. Associated Dry Goods Corp.

• Decision Date: 13 November 1972
• Docket Number: No. 2,No. 55885,55885,2
• Citation: 487 S.W.2d 479
• Parties: Mary Jeanne HOENE, Respondent, v. ASSOCIATED DRY GOODS CORPORATION, Appellant
• Court: Missouri Supreme Court

Page 479

487 S.W.2d 479

Mary Jeanne HOENE, Respondent, v. ASSOCIATED DRY GOODS CORPORATION, Appellant.

No. 55885.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

Motion for Rehearing or Transfer to Court En Banc Denied

Dec. 11, 1972.

William K. Standard II, John H. Stahlhuth, Clayton, for respondent.

John J. Horgan, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellant.

HENRY I. EAGER, Special Commissioner.

In this action for malicious prosecution plaintiff recovered a verdict of $500 actual damages and $20,000 punitive damages. Defendant duly appealed. The notice of appeal was filed here before the effective date of the amendment increasing the jurisdiction of the Courts of Appeal to $30,000, Laws 1969, 3rd Ex.Sess., p. 110, § 1; and, of course, it was filed prior to the Amendment of our Judicial Article, effective January 1, 1972. We have jurisdiction.

Defendant insists that a verdict should have been directed for it, so we shall need to relate the evidence in some detail. Plaintiff, 35 years of age at trial, was not regularly employed but did occasional baby-sitting; she lived with her parents in St. Louis County. She had suffered cerebral palsy at birth and, although her intellectual ability was apparently not impaired, she still had some difficulty in walking and in speech, and an involuntary waving of her 'extremities.' The following is a digest of her testimony. On November 21, 1967, she had gone to downtown St. Louis and had done some shopping; she had taken from home one shopping bag and her purse or handbag, and she bought another shopping bag downtown. In addition to other articles, she was carrying a pair of glvoes which she had bought about a month previously at Stix, Baer & Fuller (admittedly a unit of this defendant) and which she intended to return. Those gloves with the sales ticket therefor were received in evidence as exhibits. She then took a bus to the River Roads Shopping Center, picked up a prescription and proceeded to the mall at Stix, Baer & Fuller, which we shall hereafter refer to as 'defendant.' She had delayed returning the gloves because of a fall which had injured her 'tail-bone.' She sat on a bench on the mall for a short time, and then removed the gloves and their sales ticket from her shopping bag, held them and a shopping bag in her right hand with her purse over her arm and proceeded into the store. She saw gloves on display on a counter or cart which looked like hers and went there to examine the price, as she knew she would not get back the original cost of $5.00 if the same gloves were on sale. Reaching the cart, she put down the shopping bag from her left hand, and, with her left hand picked up a pair of gloves from the counter which looked like hers. She did not take those out of their enclosing cover. She found that they were like hers and that they were not marked down; her own gloves were still in her right hand. She looked around for sales people and only saw two with about seven customers waiting, so she decided to do further shopping and come back. Thereupon she leaned down and put her gloves, the ones she had brought with her, and the ticket into the shopping bag on the floor, leaving the ones she had looked at on the counter. She then walked off toward the elevators. Near that point, as she testified: a man grabbed ehr arm, flashed something at her, and said,--'You took something I seen it.' That he put his hand in her shopping bag, pulled out her gloves, and said,--'You just took these'; that she replied, 'No, I didn't,' and tried to show him her sales ticket; that her gloves were still in their cellophane wrapper and she told him that she was bringing them back that the man repeated,--'Yes you did, I saw you,' grabbed her by the arm again and said, 'Come with me'; she 'kind of' pulled away; a younger man came up and took her downstairs to a 'security' office, where there was also a 'security lady'; that the first man was Mr. Shelvy and the younger man Mr. Schweppe. Shelvy was gone for a short time but returned. Plaintiff got out her Stix, Baer & Fuller sales ticket and showed it to them; it showed a charge to plaintiff's father of a pair of gloves on 10/27, 'regular,' a sales number, plaintiff's signature for the article, and the price of $5 plus fifteen cents tax. Plaintiff further testified that she first showed this to Schweppe 'downstairs,' that he said nothing, and that Schweppe showed it to Shelvy when he came to the security room; that the latter looked at it, threw it on the desk and said,--'It isn't dated today'; that she tried to tell him why it was not dated that day, but 'He wouldn't listen'; that she was excited; that she was positive that Shelvy saw the sales slip; that they 'went into' her shopping bag and purse without her permission, and asked her age; that she asked,--'Just what is all this about'; that thereupon Shelvy said,-- 'She's being uncooperative. Call the police,' the woman present agreed and added,--'We haven't got time to fool with it,' and Shelvy called the police. Plaintiff denied that she offered to pay for the gloves. Shelvy was the 'security manager' of defendant. An officer arrived, took her into custody, and took her to the station in a marked police car, where she was questioned, photographed and fingerprinted; her personal belongings were all put in a property bag; that the woman security officer, admittedly sent by Shelvy the security manager, went over to the police station and signed an affidavit charging plaintiff with the theft of property of a value less than $50; that she was permitted to make a telephone call and later was released on bond and her property returned to her except her gloves. She employed counsel whom she paid $250, and was tried in the police court of Jennings; defendant's employees and the police officer testified against her. She was acquitted.

From plaintiff's testimony and that of her physician there is a fair inference that plaintiff's impaired physical condition was aggravated by this affair and that she has required additional medication. There is no claim that the verdict of $500 for actual damages is excessive.

For defendant, James Shelvy, defendant's 'Security Manager,' testified: that he saw plaintiff enter the store, walk to the glove cart carrying a shopping bag and a purse with 'something' in the other hand, but he did 'not recall' what it was; that, at the glove cart, she put her shopping bag on the floor, selected a pair of gloves in a cellophane bag, bent down, and placed them in her shopping bag; that she then picked up the bag and walked away; that he stopped her near the elevators some distance away; that he identified himself to her, did not touch her, and asked her to go to the security office; that Rita Hucklenbroich, a woman security officer, was very close by when he stopped plaintiff; that he was called to the telephone and next saw plaintiff in his security office with the woman officer and Mr. Schweppe, another security agent; that plaintiff produced a sales ticket issued by defendant for a pair of gloves dated approximately one month earlier, and he identified plaintiff's Exhibit 1 as that ticket; that he called the Jennings police, that an officer came and took charge of plaintiff, and that he instructed Rita Hucklenbroich to go over and sign an affidavit charging plaintiff with 'taking merchandise without paying.'

Donald H. Schweppe remembered little of the foregoing occurrences. Rita Hucklenbroich, in substance, testified: that she saw plaintiff put down her shopping bag, look at the gloves on the counter, pick up a pair, bend down and 'shove' the gloves into a shopping bag; that plaintiff walked away, the witness followed, signalled to Mr. Shelvy, and that he stopped plaintiff and identified himself as a security officer; that plaintiff made no statement; that plaintiff was taken to the security office where she said that she had bought the gloves and, upon request, produced a 'sales check' from her purse; that the witness saw this and she identified Plaintiff's Exhibit 1 as that sales check; that plaintiff took the things out of her bag and put them on a chair; that they did not go into her bag or purse; that plaintiff said, when the police officer came in,--'Well, can't I just pay for it?' The officer who arrested plaintiff also testified to such a question from plaintiff. He also verified the procedure followed at the police station as related above. The affidavit charging plaintiff with theft, the information, the warrant for arrest, a written explanation of constitutional rights, the police record of arrest, and an unsigned 'statement' of the arrest or of guilt on Stix, Baer & Fuller stationery were all in evidence as exhibits. The 'statement' was apparently written to be signed by the suspect. Also received were copies of monthly statements or bills to plaintiff's parents, one of which included the gloves purchased on October 27, 1967. The Assistant City Attorney of Jennings testified that he issued the information on review of the police report and the statements on file.

On this evidence defendant asserts as its first point that a verdict should have been directed for it (a), because plaintiff failed to prove that defendant acted maliciously and without reasonable grounds; and (b), because there was 'no conflict in the evidence as to probable cause * * *.' Neither party claims that § 537.125, RSMo 1969, V.A.M.S. on 'Shoplifting' is applicable. Counsel cite sundry cases stating the general principles applicable in malicious prosecution suits. None of these are close enough on the facts that we need to discuss them individually. Generally, the principles are: that the elements to be proved in such a suit are: (1) the commencement of a prosecution against plaintiff; (2) its legal causation by defendant; (3) its termination in favor of plaintiff; (4) the absence of probable cause...