Hoock v. S. S. Kresge Co., 27664.

• Decision Date: 21 June 1949
• Docket Number: No. 27664.,No. 27665.,27664.,27665.
• Citation: 222 S.W.2d 568
• Parties: HOOCK v. S. S. KRESGE CO. et al.
• Court: Missouri Court of Appeals

222 S.W.2d 568

HOOCK v. S. S. KRESGE CO. et al.

No. 27664.

No. 27665.

St. Louis Court of Appeals. Missouri.

June 21, 1949.

Rehearing Denied September 16, 1949.

Appeal from St. Louis Circuit Court; Francis E. Williams, Judge.

"Not to be reported in State Reports."

Action by Theodore P. Hoock against S. S. Kresge Company and another for false arrest. From judgment for plaintiff against both defendants, defendants appeal.

Reversed.

Wayne Ely and Ernest D. Grinnell, Jr., St. Louis, for appellants.

John W. Joynt, St. Louis, for respondent.

WOLFE, Commissioner.

This is an action for false arrest which resulted upon trial in a verdict and judgment for $7500 for the plaintiff against both defendants and defendants appealed. The appeals were argued and submitted together and both are herein considered.

The following evidence was presented on behalf of the plaintiff: Theodore P. Hoock was a married man living with his wife and family in East St. Louis. On Saturday, October 30, 1943, his wife sent him to St. Louis to buy some trousers for their two small sons. Arriving at Washington Avenue in St. Louis he first went to Woolworth's store but could not find what he wanted and then went to the store of defendant S. S. Kresge Company. He stated that he walked about the store and looked around for approximately ten or fifteen minutes and left. He started to walk back to the bus station but had gone only about half a block eastwardly on Washington Avenue when he was stopped by R. D. Cox, an assistant manager for the Kresge Company. After being stopped plaintiff states that the following occurred:

"A. Well, he just grabbed me by the arm and turned me around. He said, `What do you mean by dropping this note here'? I told him, I said, `What note are you talking about'? He said, `You know what note I am talking about.' He said, `I got a good notion to beat the heck out of you', and he said, `If I ever catch you back in that store again, why, I am going to make it plenty hot for you.'

"Q. Is that all he said? A. Yes, Then he turned around and went back towards where he came from and I started back up towards the bridge."

He had not gone far when a police officer came up and started questioning him about dropping a note and later placed him under arrest.

The deposition of R. D. Cox, introduced by the plaintiff, related occurrences up to this point as follows: On two occasions prior to October 30, an obscene note had been left on the toilet articles counter by some unknown person. A young lady clerk at that counter became frightened and gave the second note to Cox. He turned it over to a detective of the St. Louis Police Force and told the employees to be on the lookout for any suspicious character that might loiter about the store. On the Saturday of Hoock's arrest an employee named Miss Reilly called Cox down from the storeroom and told him that the note writer was in the store. She pointed to Hoock who was then loitering in front of the store and said she had seen him drop a note behind the toilet articles counter. Cox told her to get the note and give it to him. At this point Hoock left the store and when Miss Reilly gave Cox the note he saw that it was a thing of extreme vulgarity and obscenity. He followed Hoock and caught up with him on Washington Avenue not far from the store. He related what occurred after that as follows:

"Q. And then when you caught up with him what did you do? What was said and done? A. I stopped him and I asked him what was the matter with him. As I recall, I asked him if he had ever had his head examined, if he was crazy or something was the matter with him, and I asked him what the hell was his idea of pulling a stunt like that.

"Q. Did you say that, `pulling a stunt like that'? A. That is right.

"Q. You did not make it any more definite? A. No, sir.

"Q. All right, go on. A. And so he said he didn't do anything. He kind of stuttered, and he said he didn't do anything; and so I told him, well, I knew he did, and I didn't want to ever see him around these parts again. I told him if I didn't think that he was out of his head, or not in his right mind, that I would go a little bit farther with it.

"Q. Did you say what you would do about going a little bit farther with it? A. Yes, I did.

"Q. What did you say? A. I just told him that I would knock all hell out of him, I would break his damned neck for him, and told him that if I ever saw him again, I didn't care whether it was a block away or two blocks away, if he saw me he had better start to run, because if I ever saw him hanging around that neighborhood again I was going to give him a damned good beating that he would remember, and then I would turn him over to the police.

"Q. Was there anything else said or done there while you were there with Hoock at that point? A. No, sir.

"Q. Then what did you do? A. A crowd began, a few people began to stop, so I just didn't want to create a scene, and I turned around and walked away."

A police officer accosted Cox when he was returning to the store and asked him what the disturbance was about. Cox showed him the note and told him it was the third of its kind that had been left in the store. Upon seeing the note the officer said, "Why he can't get away with that," and he took the note and started after Hoock and Cox went with him. He arrested Hoock after questioning him briefly on the street. The conversation that Cox had with the officer was related by Cox as follows:

"Q. State whether or not you requested Officer Muich to arrest Theodare Hoock? A. I did not.

"Q. State whether or not Officer Muich asked you whether you wanted him arrested? A. He did.

"Q. What was that conversation and tell me when that conversation was now with reference to after you overtook Hoock between Broadway and Fourth Street? A. After Muich had gone up and stopped Hoock, and talked to Hoock and the other officer, he came back to me and asked me what I wanted to do about it, and I told him as far as I was concerned that I had done all that I wanted to do; all I wanted to do was keep the man away from the store and stop molesting the girls.

* * * * * *

"Q. Did you or did you not request Officer Muich or any other officer, or any person, to arrest Theodore Hoock? A. No, sir.

"Q. At any time? A. No, sir."

Cox took no part in the prosecution after Hoock's arrest and never saw him again until the trial of this case.

Plaintiff stated that when he was stopped by the policeman Cox returned and stood watching the policeman question him, but that he never heard Cox at any time request that an arrest be made. Plaintiff denied that he had anything to do with the note, but he was taken to jail where he remained until Sunday before he was able to get out on bail and when he was tried on a charge of peace disturbance, in the police court he was acquitted. This was in brief all of the evidence concerning the arrest and that which preceded it.

The sufficiency of this proof to make a case of false arrest against the defendants is questioned. It was raised first by motion for a directed verdict at the close of plaintiff's case and at the close of the whole case.

In testing the sufficiency of the evidence the established rule of considering the plaintiff's evidence to be true and giving to him the benefit of all inferences properly drawn from it must be followed. Part of the plaintiff's evidence was the deposition of defendant Cox and the quoted portions were read to the jury by plaintiff's counsel. This brings up the question of whether or not plaintiff was bound by that testimony.

When a party offers the testimony of a witness he ordinarily vouches for the credibility of it. This is true even though the witness happens to be an adverse party. It follows that he is bound by such testimony if it stands uncontradicted by other testimony or by facts from which the jury might draw a contrary inference. Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303; Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589; Mississippi Valley Trust Co. v. Francis, Mo.App., 186 S.W.2d 39; Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663.

There is nothing in the evidence to contradict Cox and it cannot be inferred that he did other than he said he did. We cannot indulge in any inference about the arrest, for an inference cannot stand after the proof of undisputed...