Jacques v. Childs Dining Hall Co.

• Decision Date: 28 March 1923
• Parties: JACQUES v. CHILDS DINING HALL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 438

138 N.E. 843

JACQUES

v.CHILDS DINING HALL CO.

Supreme Judicial Court of Massachusetts, Essex.

March 28, 1923.

Exceptions from Superior Court, Essex County; J. F. Quinn, Judge.

Action of tort by Bessie Jacques against the Childs Dining Hall Company for damages for alleged false imprisonment. Verdict for plaintiff for $275, and defendant brings exceptions. Exceptions overruled.

Plaintiff was called back to the cashier's desk as she was leaving defendant's restaurant because of the fact that her aunt, who was with her, and who had not eaten anything, did not have any check. After some investigation, during which a question was raised as to whether plaintiff herself had paid the check given her by the waiter, she was permitted to go. She alleged that the was detained and falsely imprisoned on the charge of attempting to defraud defendant. The answer alleged that, if plaintiff was detained, it was only for such reasonable time as was necessary to inquire into the circumstances.

Coughlin & Jacobs, of Lynn, for plaintiff.

Fitz-Henry Smith, Jr., and N. N. Jones, both of Boston, for defendant.

BRALEY, J.

This is an action of tort for alleged false imprisonment. The defendant at the close of the evidence moved for a directed verdict. The motion was denied and the jury having found for the plaintiff the case is before us on exceptions to the ruling.

The law is well settled that ‘any genuine restraint is sufficient to constitute an imprisonment, and though this be effected without actual contact with the person it will be presumptively actionable,’ and ‘any demonstration of physical power which to all appearances can be avoided only by submission operates as effectually to constitute an imprisonment if submitted to as if any amount of force had been exercised.’ ‘If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment within the legal meaning of such term.’ Com. v. Nickerson, 5 Allen, 518, 525, 526;Miller v. Ashcraft, 98 Ky. 315, 318,32 S. W. 1085;Palmer v. Maine Central Railroad Co., 92 Me. 399, 42 Atl. 800,44 L. R. A. 673, 69 Am. St. Rep. 513;McCarthy v. De Armit, 99 Pa. 63;McAleer v. Good, 216 Pa. 473, 65 Atl. 934, 10 L. R. A. (N. S.) 303, 116 Am. St. Rep. 782; Smith v. State, 7 Humph. (Tenn.) 43;Gillingham v. Ohio River Railroad Co., 35 W. Va. 588, 595,14 S. E. 243,14 L. R. A. 798, 29 Am. St. Rep. 827; Bird v. Jones, 7 Q. B. 742, 753, 754; Bigelow on Torts (8th Ed.) 340.

The question for decision accordingly is whether as matter of law there was any evidence which warranted the verdict. It may be assumed-indeed, it is not denied-that the plaintiff knew that she must pay for her iuncheon before leaving the restaurant, and the defendant undoubtedly had the right, if apparently she had not paid, to detain her for a reasonable time to investigate the circumstances. But if she was detained for an unreasonable time or in an unreasonable way she is entitled to recover. Standish v. Narragansett Steamship Co., 111 Mass. 512, 517, 518,15 Am. Rep. 66; Robinson v. Balmain New Ferry Co., [1910] A. C. 295. The jury on the plaintiff's testimony could properly find that, accompanied by her aunt, she entered the defendant's restaurant between 4 and 6 o'clock in the afternoon for the purpose of being served with food, although the aunt ‘did not wish for anything to eat.’ The ‘restaurant was very crowded,’ and they went ‘up one flight of stairs to the ladies' waiting room on the balcony.’ The plaintiff went downstairs and sat at a table where she was served and the waiter presented her with a check the amount of which was small. Upon receiving the check she returned to her aunt and taking her by the arm they passed to the front of the restaurant to the cashier's desk where she stopped and paid her check and with her aunt started toward the door. It is evident that, having made payment of the defendant's demand, she had the unqualified right to leave the premises without any restraint being imposed on her freedom of departure. But after the payment, and while proceeding toward the door, ‘their attention was attracted by the ringing of a bell * * * and the cashier motioned for the plaintiff to come back,’ and the plaintiff and her aunt returned to the desk, when the cashier asked the plaintiff ‘if her aunt was with her,’ and she answered, ‘yes.’ The cashier said, ‘Why has she no check? Your check just pays for one.’ The plaintiff replied, ‘She doesn't have any check, because she didn't eat,’ and they again ‘started to go out.’ The cashier said, ‘Wait,’ and called the head waiter, who appeared, and asked ‘the plaintiff what the matter was,’ and upon being informed by the plaintiff of the situation substantially as described to the cashier, the head waiter said, ‘Come with me.’ The plaintiff, her aunt and the head waiter thereupon went to the rear of the restaurant, where the plaintiff was asked if ‘she could recognize the waiter who had served her,’ and she said she thought she could. When he appeared and was identified by the plaintiff, the head waiter asked, ‘What did she have to eat, and was she all alone?’ The reply was, ‘Yes; I remember she was all alone,’ and enumerated ‘what the plaintiff had to eat.’ But, upon referring to the check which the waitress...