Lewis v. Montgomery Ward & Co.

• Decision Date: 12 December 1936
• Docket Number: 33021.
• Citation: 62 P.2d 875,144 Kan. 656
• Parties: LEWIS v. MONTGOMERY WARD & CO.
• Court: Kansas Supreme Court

62 P.2d 875

144 Kan. 656

LEWIS v. MONTGOMERY WARD & CO.

No. 33021.

Supreme Court of Kansas

December 12, 1936

Syllabus by the Court.

Express appointment is not necessary to prove agency and authority but they may be implied from statements and conduct of parties and surrounding facts.

Authorization of subordinate agent or employee of corporation to make arrest is not implied, except where arrest is made for protection of principal's property in agent's immediate charge, in connection with its recovery, or to prevent crime at time of its commission.

Evidence relating to authority of alleged assistant manager of store owned by corporation to prevent goods from being stolen held to support judgment against corporation for arrest by policeman, at instance of assistant manager, of customer erroneously believed by manager to have taken goods from store.

Although cross-examination should be confined to subjects testified to in direct examination, court may, within its discretion permit questioning of witness, for purpose of testing his sincerity and memory, as to matters wholly irrelevant and collateral to issue.

In customer's action against store for alleged false imprisonment at instance of assistant manager of store, trial court held not to have abused discretion in permitting impeachment of assistant manager on cross-examination as to another occasion on which he had stopped a customer outside store on charge of having stolen goods.

Incorporation of pleadings in instructions held not error where they were in plain and simple language and issues were fairly presented by whole instructions, notwithstanding that giving of substance of pleadings in instructions is preferable.

$5,000 for false imprisonment of woman on street, who was in custody of policeman from 7 to 12 minutes, on false charge of having taken goods from store, held excessive in amount of $2,000.

1.To prove agency and authority, proof of an express appointment is not necessary, but the same may be implied from the statements and conduct of the parties and the facts surrounding the transaction.

2.Where an arrest is caused by a subordinate agent or employee of a corporation, there is no implication that he is authorized by the company to do so except when the arrest is made for the protection of the principal's property in his immediate charge or in connection with its recovery or to prevent a crime at the time it is being committed.

3.Except as to matters affecting his credibility, the cross-examination of a witness should be confined to the subjects on which he testified in direct examination, but for the purpose of testing his sincerity and memory a witness may be questioned as to matters wholly irrelevant and collateral to the issue in the case, the extent to which he is being thus cross-examined resting in the sound discretion of the trial court.

4.While it is to be preferred the trial court analyze the pleadings and give the substance thereof in its instructions to the jury, it is not error to incorporate the pleadings in the instructions when the pleadings are in plain and simple language and when the issues are fairly presented by the whole instructions.

5.The record examined, and it is held that an award of damages of $5,000 for false imprisonment lasting from seven to twelve minutes is excessive, and should be reduced.

Appeal from District Court, Labette County; Larue E. Goodrich Judge.

Action by Gladys Lewis against Montgomery Ward & Company.Judgment for plaintiff, and defendant appeals.

Affirmed on condition on remittitur, and otherwise reversed and remanded.

Elmer W. Columbia, of Parsons, for appellant.

Payne H. Ratner, Stuart T. McAlister, and Louise Mattox, all of Parsons, for appellee.

THIELE Justice.

This was an action for damages for false imprisonment, and from a judgment for plaintiffthe defendant appeals.Its specifications of error have been grouped under four heads which will be considered in the order presented in its brief.

As preliminary to a discussion of appellant's argument, the following statement is made:

In view of the verdict of the jury and the judgment of the trial court thereon, all disputes in the testimony must be resolved in favor of the plaintiff.

Gladys Lewis, the plaintiff, lived in the country near Parsons.She had been a school teacher before her marriage about ten years before and was the mother of two children, a boy four years old and a girl two years old at the time hereafter referred to.On December 2, 1933, and at that time having $40 in cash in her pocketbook, she went into defendant's store in Parsons accompanied by her little girl.She had some packages of merchandise purchased at another store.After making a purchase in the defendant's store, she looked at ladies' dresses, then left the store and went to two other stores and then to the Town Beauty Shoppe.While she was trying on dresses in defendant's store, a clerk reported to one Anderson, in charge of one department and alleged to be the assistant manager of the store, that plaintiff had put two baby dresses in her shopping bag.When plaintiff left the store, Anderson followed her, and later when she came out of the Beauty Shoppe he had a uniformed policeman stop her on the street.Anderson then took her shopping bag and tore open the packages, and not finding the dresses, inquired in a loud voice as to the whereabouts of the baby dresses she had stolen from the store.On her denial, he had the policeman detain her while he went to the Beauty Shoppe to make a search.After about twelve minutes, Anderson returned and stated to the policeman, "I couldn't find anything and (you) might as well release her for she must be innocent."Later in the day, plaintiff's husband went to the store and saw Bennett, who stated he was manager of the store, and who expressed regret to the husband for what had happened.

The jury after hearing the above story with all its details, together with defendant's version of the affair, answered nine special questions, which in effect were that plaintiff was taken into custody by the policeman and restrained of her liberty unlawfully for seven to twelve minutes; that she was detained by force; that the policeman arrested her at Anderson's direction and that Anderson at the time was not acting on his own initiative as a citizen in so doing; that she suffered actual damages by her arrest, the value of which was fixed at $5,000, and returned its verdict accordingly.Defendant's motion for a new trial was overruled.

Defendant's first contention is that its demurrer to plaintiff's evidence should have been sustained because of her claimed failure to prove that Anderson was the assistant manager of defendant, and had authority, either express or implied, to do the things he was charged with having done.Two witnesses testified for plaintiff on this phase of the case.Mrs. Martin stated she worked at the Montgomery Ward store from 1931 to 1934, and took orders and instructions from Roy Bennett, the manager; that Bennett instructed her that at any time he was out of the store Anderson was to take care of checks and business matters connected with the store; that complaints from customers or of goods stolen or any report concerning the store were to be made to Anderson in the absence of Bennett; that before December 2, 1933, Bennett said they, evidently referring to the help, were to give Anderson the same co-operation they would give him.

Monita Harris stated she was employed at the store from May, 1933, to August, 1934.At meetings of the employees, Bennett told them they were to co-operate with Anderson and that Anderson was assistant manager, and that any reports of stealing were to be reported either to the manager or assistant manager.

It is not disputed that Bennett was in fact the manager of the store.As a witness for the defense, he so testified.

There was ample evidence to prove that Anderson was acting as assistant manager, and as such the employees of the store were directed to report to him thefts of goods and the other matters referred to in the evidence.The question then arises whether he had authority, express or implied, real or apparent, to cause the detention of the plaintiff as proved.It has been held that to prove agency and authority, proof of an express appointment is not necessary, but the same may be implied from the statements and conduct of the parties, the facts surrounding the transaction; in other words, that agency and authority may be proved by circumstantial evidence.Wilson v. Haun,97 Kan. 445, 155 P. 798;Cummins v. Standard Oil Co.,132 Kan. 600, 296 P. 731;Mountain Iron & Supply Co. v. Branson,134 Kan. 818, 8 P.2d 407;Hyson v. Bankers' Mortgage Co.,136 Kan. 259, 14 P.2d 726.

Perhaps the strongest case relied upon by appellant is Mercer v Fred Harvey,116 Kan. 365, 226 P. 761, wherein it was held: "A corporation is not liable in damages for the wrongful act of a subordinate agent in causing an arrest for larceny of property, which was not under the care of such agent, unless it is shown that such act was previously authorized or later ratified by some official or agent of the corporation having authority to do so."(Syl.)In that caseplaintiff, a dining car waiter, was arrested on the complaint of one Ray, an assistant purchasing agent of the defendant, who had nothing to do with the immediate circumstances out of which a claimed theft arose.This court held there was no evidence that what Ray did was within the scope of his employment.In stating the rule of liability of a principal for acts of his agent, however, it was said: "Where an arrest is caused by a subordinate agent or employee of a corporation there is no implication that he is...