Kress & Co. v. Roberts

• Decision Date: 17 September 1925
• Citation: Kress & Co. v. Roberts, 143 Va. 71, 129 S.E. 244 (1925)
• Parties: S. H. KRESS AND COMPANY v. ALICE MARTIN ROBERTS
• Court: Virginia Supreme Court

Page 71

143 Va. 71

S. H. KRESS AND COMPANY v. ALICE MARTIN ROBERTS

Supreme Court of Virginia, Staunton.

September 17, 1925.

1. FALSE IMPRISONMENT — Evidence of Good Character of Plaintiff — Case at Bar. — In the instant case, an action for false imprisonment, on a charge of theft, plaintiff introduced in chief seven witnesses to prove her good character, but did not produce any evidence which tended to show that the character of the plaintiff was known to the defendant. The right of recovery relied on by the plaintiff was not that the act of the defendant was done maliciously, but that it was merely an unlawful act.

Held: That it was error for the trial court to refuse to strike out the evidence of plaintiff's good character.

2. FALSE IMPRISONMENT — Definition. — False imprisonment is any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere.

3. FALSE IMPRISONMENT — Gist of the Action. — The gist of the action is the illegal detention of the person, without lawful process, or the unlawful execution of lawful process. The character of a plaintiff, in an action for false imprisonment, is not involved, so far as the mere right to recover is concerned. Though, in fact, a criminal and devoid of character, if one is falsely imprisoned, he has a cause of action.

4. FALSE IMPRISONMENT — Damages — Action not Malicious. — In an action for false imprisonment, where the act was done unlawfully, but not maliciously, the damages awarded must be compensatory for the loss of time, for the suffering, bodily and mental, sustained by reason of such wrongful act or acts, and for expenses incurred in procuring discharge from restraint, including a reasonable attorney's fee.

5. FALSE IMPRISONMENT — Reputation of Plaintiff. — While the bad reputation of a plaintiff in an action for false imprisonment may be shown on the question of quantum of damages, the plaintiff may not introduce evidence of good character before his character has been attacked. Where no attempt has been made to show plaintiff's reputation to be bad, he must rely upon the general presumption of good character.

6. FALSE IMPRISONMENT — Evidence — Character — Permitting Plaintiff to Identify Herself. — In an action for false imprisonment it was proper to permit plaintiff, by her own testimony, to identify herself by showing that she was the owner of at least twenty thousand dollars worth of property in the city of Roanoke; and that she was the wife of a highly respected citizen.

Error to a judgment of the Court of Law and Chancery of the city of Roanoke, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

C. S. McNulty and Horace M. Fox, for the plaintiff in error.

Woods, Chitwood, Coxe & Rogers, and Jackson & Henson, for the defendant in error.

CAMPBELL, J., delivered the opinion of the court.

This was an action for false imprisonment, in which there was a judgment for the plaintiff, Mrs. Alice Martin Roberts.

The proceeding was by notice of motion, and it is alleged in the notice, which was sued out of the clerk's office in November, 1923, that on the 18th day of December, 1922, the plaintiff was arrested in the city of Roanoke, on a charge of petit larceny, preferred by H. C. Mousel, who was the servant and agent of the defendant; that the plaintiff was taken into custody by certain police officers of the city, at the instance of Mousel, and was led through the store of the defendant, in the presence of a large concourse of people, and was, against her will, compelled to enter the patrol wagon of the police department and was kept confined therein for the space of twenty minutes, and was then taken by the police officers to the police headquarters and there detained for two and a half hours, when she was released on bail for her appearance on the following morning; that on the 19th of December, the day following her arrest, she was tried before the police justice of Roanoke city, on the charge of petit larceny preferred by Mousel, and was acquitted and discharged from further custody.

The evidence in the case is in hopeless conflict. It appears, however, from the record, that on the 18th of December, 1922, the plaintiff came to the city of Roanoke on an early morning train, from her home in Alta Vista, Virginia, for the purpose of adjusting a matter of rent due her by one of her tenants who resided in Roanoke. During the course of the day, she met a cousin of hers by the name of Coy Martin, who invited her to take supper with him. After she had completed her business engagements, she decided to accept the invitation of her cousin and made an effort to locate him, but without success.

About six o'clock p.m., she entered the store of the defendant, with the idea of waiting to see her cousin, as she knew he usually passed this store on his way home. While waiting, her attention was attracted to some doilies lying on the counter. (There is a conflict in the evidence as to whether the doilies were lace or paper. If lace, they were worth about $3.50; if paper, only a few cents.)

From this point, the statement of the plaintiff is that she saw her cousin, Mr. Martin, pass the door, and with the doilies in her hand, she went out of the store to speak to him, but before she had an opportunity to do so, Mr. Mousel, the floor manager of defendant, caught her by the arm and asked her if she meant to pay for the doilies; that she answered: "Yes; I absolutely do;" that Mousel then took hold of her arm and pulled her back into the store, down the aisle, and took her to the office and called the police, who, as stated, took her to police headquarters.

She further stated that when she arrived at the police station she made no effort to get into communication with her cousin, Coy Martin, but did call up a Mr. Phelps, who was cashier of the National Exchange Bank, who came to the police station, arranged bond for her, and then drove her to the home of Coy Martin where she spent the night; that she did not tell either Martin or his wife of her arrest; that after her trial she returned to her home but did not inform her husband of the occurrence; that her husband was a conductor on the Virginian Railway, but at the time was very ill; that she told him of the arrest several months afterwards. She gave no reason for...