Joseph v. Meier & Frank Co.

• Decision Date: 16 November 1926
• Court: Oregon Supreme Court
• Parties: JOSEPH v. MEIER & FRANK CO. [a1]

250 P. 739

120 Or. 117

JOSEPH v. MEIER & FRANK CO. ^[a1]

Supreme Court of Oregon

November 16, 1926

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Rose Joseph against the Meier & Frank Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for false imprisonment. Plaintiff, while a customer at the department store owned by the defendant company in the city of Portland, was, according to her complaint, accused by special agents of defendant of having stolen a small piece of jewelry from one of the counters. She says that she was compelled, against her will and consent, to submit to a search of her person, and was subjected to great intimidation, humiliation, and abuse. It is asserted that this alleged unlawful restraint of her liberty was "all without justification, legal warrant of arrest, search warrant, or excuse, and all against the will and protest of plaintiff." Defendant joined issue by a general denial. The cause was submitted to a jury, and a verdict was returned in favor of plaintiff for $5,000. On appeal, defendant assigns only two errors, viz.:

(1) "That the court erred in excluding from the evidence the records of the District Court of the United States for the District of Oregon, relating to the confiscation and forfeiture of the automobile of the plaintiff."

(2) "That the court erred in instructing the jury in effect that they could not consider whether or not plaintiff was lawfully restrained or whether or not defendant was justified in its actions."

John C Veatch, of Portland (Joseph, Haney & Littlefield, of Portland, on the brief), for appellant.

John W. Reynolds, of Portland (Flegel, Reynolds Flegel & Smith, of Portland, on the brief), for respondent.

BELT. J. (after stating the facts as above).

Relative to the question of damages, plaintiff offered evidence tending to show that, as a direct and natural result of the alleged false imprisonment, she suffered extreme physical and mental pain. According to her contention, she had a nervous breakdown and was confined to her bed for several weeks under the care of a physician and nurse. In response to a hypothetical question, expert medical witnesses testified that, in their opinion, the condition could reasonably be attributed to her treatment by defendant. To refute such claim and to show that her nervous condition was not the result of the alleged false imprisonment, but that it was due to other causes, defendant offered in evidence certain records of the federal court relative to the confiscation, on account of the transportation of intoxicating liquors, of an automobile owned by plaintiff and in possession of her son. We think this offer was properly rejected. There is no evidence that the loss of the automobile caused plaintiff to worry. In fact, she testified that it did not. It is argued however, that the jury might have drawn the reasonable inference to the contrary, but, even so, it could not, upon such inference, have based the further inference that her nervous condition was caused by such worry. Deniff v Charles R. McCormick & Co., 105 Or. 697, 210 P. 703, and cases therein cited. This evidence offered by defendant did not have any more probative value than it would merely to have shown that plaintiff had an uncle in Paris who had recently died. If there had been evidence tending to show that the loss of the automobile caused plaintiff to worry, a different question would be presented. Consolidated Traction Co. v. Mullin, 63 N. J. Law 22, 42 A. 764, apparently supports the contention of appellant, but there is such a meager statement of the case in the opinion we do not feel justified in accepting it as controlling in the instant cause. Furthermore, appellant has no cause to complain of the rejection of its offer for the reason that other evidence was admitted which, without doubt, apprised the jury of the fact that plaintiff's automobile had been confiscated. In fact, plaintiff admitted such to be true. Under any view, there was no need thus to incumber the record.

There was no error in instructing the jury, in effect, that they were not to consider whether the restraint placed upon plaintiff was lawful or justifiable. Justification was not an issue under the pleadings. It is well established in this jurisdiction and elsewhere that justification must be...