Kress v. Lawrence

• Decision Date: 19 November 1908
• Citation: 47 So. 574,158 Ala. 652
• Parties: KRESS ET AL. v. LAWRENCE.
• Court: Alabama Supreme Court

47 So. 574

158 Ala. 652

KRESS ET AL. v. LAWRENCE.

Supreme Court of Alabama

November 19, 1908

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Julia E. Lawrence against S. H. Kress and S. H. Kress &amp Co. From a judgment for plaintiff in the sum of $800 defendants appeal. Affirmed.

The first count of the complaint was for an alleged slander uttered by an agent of defendant. This count went out on demurrer. The second count was for wrongful arrest and detention of plaintiff on the charge of appropriating to her own use money received by her as a clerk of the defendant. The third count was for wrongful assault on plaintiff and the searching of her person for money alleged to have been taken and retained by her as defendant's clerk. The pleas were the general issue. The evidence for plaintiff tended to show that defendants conducted a retail store in the city of Birmingham and that plaintiff was a clerk or saleswoman of defendants; that while waiting on a customer, to whom she sold an article for the sum of 10 cents, which she placed in the carriage cup register and sent to the cashier's desk the defendants' manager touched her on the shoulder and told her he wanted her in the office; that he followed behind her, and that when she got to the back end of the store he stopped her and told her that he had seen where the dime went and that she had dropped it in her pocket; that she told him she did not want to be searched in a public place, and that if he would take down the cash cup he would see that the dime was in there; that he insisted that he had seen the dime go into her pocket, and that he was going to see right there and she told him she wanted him to be perfectly satisfied that she did not get the dime, but did not want to be searched in a public place, and that she was willing to go into the private office and satisfy him after he looked into the cash cup, but that he went into her pocket and jerked out a handkerchief, check book, and pencil, and searched her naked pocket, and that he then told her to go back to the counter, where she had customers waiting, and that she stayed on till 10 o'clock that evening; that the store was crowded with people at the time he accused her of putting the money in her pocket, etc.

The following charges were refused to the defendant: (2) "If the jury believe the evidence, they must find for defendant on the second count of the complaint." (3) Same as 2 as to the third count. The following charges were given at the request of plaintiff: "(2) If the jury find for plaintiff, they may in their sound discretion add punitive damages to whatever compensatory damages they may find. (3) While defendant in this case is not liable for slander, yet defendant S. H. Kress & Co. may be liable for arrest under charge of embezzlement, and the jury in considering that question may consider all the evidence before the jury as to what was said and done." "(6) If the jury are reasonably satisfied from the evidence that any one or more witnesses in the case willfully swore falsely in any material particular in the case, then the jury are authorized to reject the testimony of that witness or those witnesses entirely."

Cabaniss & Bowie, for appellants.

Bowman, Harsh & Beddow, for appellee.

DOWDELL J.

The complaint contained three counts. The first count went out on demurrer. Pleas of not guilty were filed to the second and third counts, on which issue was joined. The questions presented for our consideration and...