Kissel-Skiles Co. v. Neff

• Decision Date: 28 January 1930
• Citation: 232 Ky. 825,24 S.W.2d 588
• Parties: KISSEL-SKILES CO. v. NEFF.
• Court: Kentucky Court of Appeals

24 S.W.2d 588

232 Ky. 825

KISSEL-SKILES CO. v. NEFF.

Court of Appeals of Kentucky

January 28, 1930

Rehearing Denied March 11, 1930.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Joseph P. Neff against the Kissel-Skiles Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Finley F. Gibson, Jr., of Louisville, for appellant.

J. H Holladay and John Rose, both of Louisville, for appellee.

LOGAN J.

This is an appeal from the Jefferson circuit court, common pleas branch, Second division. The appellee obtained a judgment against the appellant for the sum of $1,066. A motion for a new trial was made and overruled. The trial court, in overruling the motion, delivered a written opinion. It is clear, exhaustive, and essentially sound. We adopt it as our own. It is as follows:

"Plaintiff Joseph P. Neff, an agent for the Western & Southern Life Insurance Company, with some half dozen men under him, was in the habit of renting automobiles from defendant, Kissel-Skiles Company. One evening in October, 1927, he rented one for use that night and the following day and took it with him. The next morning he drove it down town, having his father and another relative with him, and parked it in the center of the city, at which time he claims all three of them tried to lock it without success. Assuming that it would be safe, he parked it and went to his office. Later in the day the police found it a mile or more away, stripped of certain equipment, and, ascertaining that it belonged to defendant, Kissel-Skiles Company, reported the matter to it. Plaintiff, Neff, was promptly notified and went to the Kissel-Skiles place of business, where some discussion occurred about his alleged carelessness in leaving it unlocked, and where he says he undertook to demonstrate the impossibility of locking it with the key they had given him, and that it then required more than one of defendant's employees to successfully lock it with such key. They wanted him to pay for the loss resulting from the theft, but he stated that he did not steal it and was not responsible therefor.

Plaintiff continued to rent machines from the defendant as theretofore, and in time owed it a bill on that account, which having difficulty in collecting, defendant turned over to a lawyer, adding thereto the cost of the damages sustained by theft of the machine the preceding October. Plaintiff says the lawyer threatened to have him arrested unless he paid, and thereafter he was arrested at his place of business in the presence of some twenty fellow employees, and subjected to considerable annoyance, humiliation, and shame, though not actually incarcerated, bond having been made for him, after some thirty minutes general discussion among the employees of the office, by one of the officers of the company; and he claims to have been subjected to further shame, humiliation, and suffering by reason of advertisement given to the occurrence by his fellow employees and others, which he found so burdensome as to cause him to sever his connection with the company and seek other employment in a different atmosphere.

It is abundantly established by proof that the affidavit and warrant on which he was arrested charged him with the violation of sections 1376R-5 and 1376R-6 of the Kentucky Statutes Supp. 1928. He appeared at the office of the magistrate who issued the warrant, at the time set for trial, and was dismissed; and, while the docket record of the magistrate shows he was dismissed on a cold check charge, it also shows that this was the only time he was prosecuted in that court for any offense, and the original affidavit and warrant have disappeared or been lost from the office of the magistrate.

The attorney for defendant, Mr. Cahill, states that he prepared the warrant in blank on a communication from the defendant, Kissel-Skiles Company, that does not appear to have fully and fairly stated the facts of its dealing with plaintiff, and that he gave this blank warrant to the constable operating from the court of the magistrate involved, for the purpose of having it completed by procuring execution of affidavit on the back thereof, and signature of the magistrate to the warrant. This constable is not produced as a witness by either side, but the magistrate, James L. Smith, says the warrant came into his possession with the name of S. Basham, manager of defendant Kissel-Skiles Company, signed to the affidavit, and that he called Basham up at his place of business and took his jurat over the telephone, after which the warrant was issued. S. Basham admitted that he was the manager for Kissel-Skiles Company, so his act was the act of the defendant. But he denied that he signed the affidavit or swore to it over the telephone to Judge Smith, and this issue was submitted to the jury.

"Defendant asserts ten grounds for new trial, as follows:

"First. Excessive damages. The testimony as a whole would warrant the conclusion that the prosecution complained of was instituted willfully and intentionally for the purpose of effecting collection of a debt, which would justify an instruction on punitive damages. Such an instruction was not given, because not requested, and the damages awarded are compensatory. As such they may be considered liberal, but do not impress the court as excessive. Sixteen dollars was allowed for lost time, $50 as attorney's fee, representing cost of defense against the criminal charge, and $1,000 for suffering due to humiliation, mortification, and loss of reputation. The verdict does not so itemize the damages, but it is apparent that this is how they were arrived at.

"The question of excessive damages is more or less troublesome because of so many different elements entering into its consideration. It is true that this plaintiff was not incarcerated in jail, but incarceration for a considerable period of time might mean less to one man than the shame, humiliation, and mortification of a public arrest in the presence of his associates might mean to another. The plaintiff herein appears to be of more than average sensibility, a young man some 30 years of age, of proven character and standing, who has never been in any criminal trouble, and whose personal presence as well as the testimony of his witnesses, indicate was subjected to acute mental suffering by reason of this occurrence. It was shown to have lasted for a considerable period of time, and the results manifested themselves in channels from which he could not escape. It is difficult to compensate one in money at all for a matter of this kind; and it seems to the court that $1,000 will not go very far toward doing it, under present conditions of life and the cost thereof. It is a matter of common knowledge that $1,000 will not maintain an ordinary man's family in comfort for many months. The recent trend of our courts has been to recognize the deflated purchasing power of the dollar; and, while very much in excess of $1,000 as compensatory damages in this case might command their scrutiny in the application of rules which they are in the habit of following, the sum awarded by the jury herein, all the facts and circumstances considered, does not impress this court as excessive--certainly not 'so glaringly excessive as to strike us at first blush as being the result of prejudice or passion.' Hayes v. Ketron, 223 Ky. 119, 3 S.W.2d 172.

Second. That the verdict is not sustained by sufficient evidence and is flagrantly against the testimony. It is sufficient to say of this that the court regards it as in strict accordance with the testimony, if that for plaintiff is believed, and which the jury by its verdict accepted.

"Third. Refusal to give instructions D and E offered by defendant. These appear to have been in substance included in the instructions given. Defendant appears to contend that the jury should have been in effect told that the defendant was not liable unless its agent, Basham, was acting within the scope of his employment or authority in instituting the prosecution. But there was no question about his authority made by the evidence, and therefore no occasion to instruct upon such an issue. The defense was, not that he was without authority, or acting without the scope of his employment, but that he did not sign the affidavit nor institute the prosecution at all, which latter issue was submitted. The instruction given did...