Kraft v. Montgomery Ward & Co.

• Decision Date: 31 December 1959
• Citation: 348 P.2d 239,220 Or. 230
• Parties: , 92 A.L.R.2d 1 Anton KRAFT, Respondent and Cross-Appellant, v. MONTGOMERY WARD & CO., Inc., a corporation, Appellant, and Richard F. Hutchinson, Defendant and Cross-Respondent.
• Court: Oregon Supreme Court

Page 239

348 P.2d 239

220 Or. 230, 92 A.L.R.2d 1

Anton KRAFT, Respondent and Cross-Appellant, v. MONTGOMERY WARD & CO., Inc., a corporation, Appellant, and Richard F. Hutchinson, Defendant and Cross-Respondent.

Supreme Court of Oregon, Department 2.

Argued Dec. 10, 1959.

Decided Dec. 31, 1959.

John L. Schwabe, Portland, argued the cause for appellant. With him on the briefs were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.

Leo Levenson, Portland, argued the cause for respondent. With him on the brief were Earl A. Fewless, Nels Peterson, and Samuel Jacobson, Portland.

Before McALLISTER, C. J., and PERRY, SLOAN and KING, JJ.

KING, Justice pro tem.

The plaintiff, Anton Kraft, brought this action for damages against Montgomery Ward & Co., Inc., and Richard F. Hutchinson and charged them with false arrest and false imprisonment on the first cause of action. On a second cause of action the plaintiff charged the defendant with malicious prosecution and asked for both compensatory and exemplary, or punitive, damages on each cause of action.

The case was tried before a jury in the circuit court of Multnomah County, Oregon, and the jury returned a verdict against the defendant Montgomery Ward & Co., Inc., for both compensatory and punitive damages on each cause of action. The court granted judgment against Montgomery Ward & Co., Inc., for the total amount of the damages found by the jury. The jury did not find a verdict against the defendant Hutchinson, and the court granted judgment and costs in his favor and against the plaintiff, Anton Kraft.

The defendant Montgomery Ward & Co., Inc., brings this appeal from that judgment, alleging numerous assignments of error which we will set forth and consider later. The plaintiff, Anton Kraft, cross-appealed against the defendant Richard F. Hutchinson.

The defendant Montgomery Ward & Co., Inc., operates a large retail store and mail-order house at 27th and Vaughn Streets, Portland, Oregon. It is substantially a national organization with stores and mail-order branches in various parts of the country and with its main or home office in Chicago, Illinois.

The defendant Richard F. Hutchinson was employed by Montgomery Ward & Co. and was second in charge of its protection department when the events giving rise to this law action occurred. His employment included the duty of looking after and superintending the protection of the defendant's property. It is the department which is charged with the responsibility of protecting the company's assets against losses by fire, theft, malicious mischief, trespass, burglary and theft. The duties required cooperation with the city, county and state officers in the investigation of any such matters relating to the store and to render whatever assistance necessary in the filing and prosecution of such cases.

Mr. Hutchinson was chief investigator and assistant under Paul Seal, who headed the protection department. There were some nine or ten regular watchmen for the store who worked in the protection department.

The Montgomery Ward & Co. building in Portland, Oregon, was a nine-story building which covered practically an entire city block.

The plaintiff, Anton Kraft, had been working for Montgomery Ward & Co. for about three years, when on June 13, 1949, he was discharged by or at the instance of the defendant Richard F. Hutchinson.

On June 10, 1949, Mr. Kraft was operating a freight elevator, when his superior reported to Mr. Hutchinson that he smelled liquor on him and that it had happened several times before. Mr. Hutchinson investigated and satisfied himself that there was the smell of what he thought to be wine on Mr. Kraft. About that time he also questioned Mr. Kraft about taking articles from the store, and Mr. Kraft admitted that he had taken several articles which he claimed were damaged and discarded as refuse. He signed a statement to that effect and returned the articles to the store. He was then discharged as above mentioned.

On July 21, 1949, Ernest Zimmer was acting as a night watchman at the store. There were two watchmen on duty at that particular time. It took about two hours to make the entire round trip required of a watchman in inspecting all the floors, checking the locks on the doors and windows and such other duties. While one watchman made the rounds, the other remained at the office an subject to call. The store was equipped with what is called an A.D.T. system, and the watchman on patrol would check back with the office so that the one stationed there knew his location practically all the time.

On the morning of July 21, 1949, at approximately 2:19 a. m., Ernest Zimmer,while patrolling the ninth floor, suddenly came upon a man who was unknown to him. It apparently was quite a surprise to both of them, for they both just stared at each other for a short time. The man was about 20 or 30 feet from Mr. Zimmer, and was under a light where Mr. Zimmer could get a good look at him. They stood and looked at each other for from three to six seconds and then the man turned and ran. The watchman pursued him for a short distance, but being unarmed and realizing that the stranger might be armed, he returned to the watchman's desk, reported to his associate, and they turned in the alarm to the police and called Mr. Hutchinson at his home. Mr. Seal was out of town at the time.

The police made a careful search of the entire building and could find no one. They did not find any unlocked door or window, and neither the police nor the security officers or guards could find anything missing.

Mr. Zimmer made a written as well as an oral report of the incident. In that report he described the man encountered as about 35 or 40 years old, weighing about 150 pounds, about 5 feet 9 or 10 inches tall, and starting to get bald in front. He also told Mr. Hutchinson and the police officers that he felt certain he would recognize the man if he saw him again.

A short time later the personnel department of Montgomery Ward & Co., received information from the State Unemployment Commission that a hearing was to be held on the claim of Anton Kraft for compensation on August 3, 1949. The protection department arranged for Mr. Zimmer to be present at the unemployment meeting and see if he could identify the party he had encountered on the ninth floor of the store in the early morning of July 21, 1949. He went to the meeting with Mr. Hutchinson and when the plaintiff, Anton Kraft, walked into the meeting room, Zimmer says he told Mr. Hutchinson 'that he looked like the man.' Mr. Hutchinson testified that he was told 'that is the man.'

Mr. Hutchinson then called the Portland Police Department and Sergeant Hugh Davenport answered the call and came to the Fitzpatrick Building, where the unemployment hearing was being held. Sergeant Davenport talked with Mr. Zimmer and stated that Mr. Zimmer positively identified Mr. Kraft as the man he had encountered in the store on the morning of July 21, 1949.

Sergeant Davenport then talked with the plaintiff, Anton Kraft, placed him under arrest, and after satisfying himself that Kraft was unarmed, took him in the police car to the police station, arriving there some time before noon. After a half hour or more of questioning, Mr. Kraft was placed in jail on a burglary not in a dwelling charge. There he was photographed and fingerprinted in the usual manner and held in custody until he was released on $1,000 bail at about 5 o'clock of that same day, August 3, 1949.

After his arrest and while he was still in jail, his house was searched by Mr. Hutchinson and a police officer. This search was with plaintiff's knowledge and consent. No property belonging to Montgomery Ward & Co. was found, and none was ever found in Mr. Kraft's possession except the articles previously mentioned, which he claimed to have taken from the trash piles or receptacles, and which he returned to the store.

The next day, August 4, 1949, Mr. Hutchinson and Mr. Zimmer went before Deputy District Attorney Murchison and were questioned regarding the case. Mr. Murchison apparently felt that there was not sufficient evidence to convict on a charge of burglary not in a dwelling and sent them to Mr. Phil Roth, a deputy city attorney, whose office was in the same city building and a few doors away from Mr. Murchison's office. They were again questioned by Mr. Roth, and he prepared a complaint charging trespass in violation of a city ordinance against Mr. Kraft, which complaint Mr. Hutchinson signed. The plaintiff herein was later tried on that charge before a jury in the city court and convicted. He later appealed to the circuit court of Multnomah County and after a jury trial on November 16, 1949, he was found not guilty and his city court conviction reversed.

After that second criminal trial Anton Kraft filed an action in the circuit court against these same defendants for damages on charges similar to those in this present action. That case was heard by a jury and verdict was returned for the plaintiff and against both defendants, Montgomery Ward & Co., Inc., and Richard F. Hutchinson. Motion for new trial was filed, heard by the court, and order made granting the new trial and setting aside the judgment and verdict.

The present case was tried on the third amended complaint, which was filed after the former judgment was set aside, and on the responsive pleadings to that third amended complaint.

Defendant Montgomery Ward & Co., Inc., bases its first assignment of error on the denying of its motion for judgment on the pleadings, and its second assignment is that the court erred in overruling its demurrer to plaintiff's third amended complaint.

The basic rules applied in passing upon these matters have been set out by this court many times, and under those rules we believe the trial court's rulings denying the motion for judgment on the pleadings and overruling the demurrer to the third amended complaint were...