Kroger Grocery & Baking Co. v. Hamlin

• Decision Date: 02 December 1921
• Citation: 193 Ky. 116,235 S.W. 4
• Parties: KROGER GROCERY & BAKING CO. v. HAMLIN.
• Court: Kentucky Court of Appeals

235 S.W. 4

193 Ky. 116

KROGER GROCERY & BAKING CO. v. HAMLIN.

Court of Appeals of Kentucky.

December 2, 1921

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Christine Hamlin against the Kroger Grocery & Baking Company. From judgment for plaintiff, defendant appeals. Reversed, with directions.

Robt. C. Simmons, of Covington, and Gordon, Morrill & Ginter, of Cincinnati, Ohio, for appellant.

B. F Graziani, of Covington, for appellee.

THOMAS J.

This action was filed in the Kenton circuit court by appellee plaintiff below, against appellant, defendant below, to recover damages claimed to have been sustained as a result of an alleged malicious prosecution, which was instituted on July 11, 1918, by defendant against plaintiff, wherein she was charged with converting to her own use goods, property and merchandise of defendant, on June 19, 1918, and at divers times prior thereto for a period of three months. Upon a trial in the police court of the city of Covington, on the warrant which issued on the affidavit, plaintiff was discharged. She filed her petition on August 24 thereafter laying her damages at $2,995, and in it she made the necessary allegations to make out that character of suit, except she failed to aver that the prosecution was without probable cause, which omission was corrected by an amendment filed before the submission of the cause to the jury. The answer was a denial, and it also affirmatively alleged that defendant had probable cause to believe the plaintiff guilty of the offense charged and relied on the advice of counsel, which affirmative pleas were unnecessary, since evidence of the facts alleged was admissible under the general denials of the answer. Emler v. Fox, 172 Ky. 290, 189 S.W. 469. Appropriate pleadings made the issues, and upon trial there was a verdict in favor of plaintiff for $1,250, upon which judgment was rendered, to reverse which defendant prosecutes this appeal.

Various errors are urged as grounds for a reversal, some of which we consider immaterial, and which we will not discuss in this opinion, but others we deem of sufficient materiality to authorize a reversal of the judgment, and they will be considered as briefly as possible.

Defendant operated a number of retail stores, some of which were located in Covington, and plaintiff had worked in one or more of those stores as its employee. She was assistant cashier in one of them at the time of the prosecution complained of. There was a rule of the company, well known to plaintiff, that no employee could purchase goods from the store in which they were working without paying for them before taking the goods therefrom, and that a ticket should be made of the purchase, accompanied by a check in payment therefor. These rules, it is explained, were adopted to protect the company, not only against accumulation of accounts by employees, but also to prevent them from obtaining goods without paying therefor, or without making any record thereof. At the store where plaintiff was working there was found a shortage in the stock of something like $1,750, and there was no record to show what had produced it. At about 6 o'clock on the evening of June 19, 1918, three of defendant's employees appeared at the store where plaintiff worked, and saw her and the superintendent locking the door preparatory to leaving, and plaintiff had a sack or bundle of goods, which afterwards proved to be some eggs and canned milk. She and the superintendent were approached, and defendant's agents inquired of her if she had paid for the goods, or had otherwise complied with the rules of the company, and she acknowledged she had not, but she stated that she expected to make payment in the future, although no record of the purchases had been made. The parties went back into the store, and while in there plaintiff wrote and signed this statement:

"I am thoroughly familiar with all the Kroger Company's rules, and have willfully disobeyed them."

She says that there was no threat or coercion of any kind to induce her to write and sign that statement. Defendant's agents, conceiving that the storeroom was not an appropriate place to discuss matters, inquired of plaintiff if she would go to the office of the company across the river in Cincinnati, Ohio, which she readily consented to do, and one of them carried her in an automobile to that place, followed shortly afterwards by the superintendent and the other two agents. They went into the office, and there is quite a contradiction between plaintiff's testimony and defendant's witnesses as to what occurred there. She says, in substance, that defendant's agents wrongfully accused her of appropriating as much as $100 worth of goods from the store at which she was working, and that they threatened to send her to the penitentiary and to the jail, and to keep her up all night if she did not sign the paper acknowledging the wrongful appropriation of as much as $100 worth of goods, and that they presented to her such a paper, with the request that she sign it, which she, in her frightened condition, declined to do. She says that they then reduced the amount of her peculations to $75, and upon her declining to sign it, it was reduced to $50, then to $25, and finally, when they reduced the amount to $8, she agreed to and did sign the paper, and it is in these words:

"I, Christine Hamlin, hereby confess that I have taken goods to the amount of $8.00, the property of the Kroger Grocery & Baking Co. I further confess that Mr. Bankemper, the meat cutter at 3633 De Coursey avenue, South Covington, Ky. has exchanged meats for groceries with the grocery manager, Mr. Oxley [at a store at which she had formerly worked] about three times a week for five weeks. Said grocery manager, Mr. Oxley, has taken goods, the property of the above-mentioned company, five times without paying for same to the extent of $5.00. I also confess that Miss Ethel Plaggenborg, cashier at 40th & De Coursey, has taken goods, the property of the Kroger Grocery & Baking Company, to the extent of $3.00. I make this confession of my own free will, without threat or promise."

After signing that paper, she was asked if she would return to the office the next morning and make a statement as to what she knew of the wrongful appropriation of goods by the superintendent of the store at which she then worked, and she agreed to do so. She was given car fare by one of defendant's agents, and returned home about 10 o'clock, and reported at the Cincinnati office, as she had agreed to do, the next morning between 7 and 8 o'clock. She then consented to and did go to the office of defendant's attorney in Cincinnati, and made a statement concerning peculations by her immediate superintendent, which she had agreed to do; and in it she accused him of having wrongfully appropriated as much as $300 worth of goods belonging to defendant, and which amount it appears from the record he acknowledged to be true. She was then told to report the next morning at one of the stores in Covington for work, which she did, and worked that morning as cashier in that store, but did not return in the afternoon, but did do so the next morning, and worked until about 11 o'clock, when, according to her evidence, she suddenly conceived the notion that she had been greatly abused, humiliated, and maltreated on the night of the conference in the Cincinnati office, and, without notifying her superintendent or any one else, she quit the service. Her own statement about her quitting is:

"I just thought it over, I didn't want to have people that treated me so mean, I just thought I would quit."

That was on the 22d day of ...