McGill v. Walnut Realty Co.

• Decision Date: 27 January 1941
• Citation: 148 S.W.2d 131,235 Mo.App. 874
• Parties: STANLEY B. McGILL, RESPONDENT, v. WALNUT REALTY COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

148 S.W.2d 131

235 Mo.App. 874

STANLEY B. McGILL, RESPONDENT, v. WALNUT REALTY COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 27, 1941

Appeal from Circuit Court of Jackson County.--Hon. Thos. J. Seehorn Judge.

AFFIRMED.

Judgment affirmed.

Ira B Burns and John A. McGuire for respondent.

(1) Defendant's demurrer was properly overruled. Peterson v. Fleming, 222 Mo.App. 296, 297 S.W. 163, 166; Willhauck v. Chicago R. I. & P. Ry. Co., 332 Mo 1165, 61 S.W.2d 336, 338; Johnson v. Chicago & Eastern Ill. Ry. Co., 334 Mo. 22, 64 S.W.2d 674, 677; Thompson v. Buchholz, 107 Mo.App. 121, 181 S.W. 490, 491; Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270, 272-3; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681, 685; Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68, 70; Taaffe v. Slevin, 11 Mo.App. 507; Larke v. Bande, 4 Mo.App. 186; Harris v. Term. R. Ass'n, 218 S.W. 686; Gibson v. Ducker, 170 Mo.App. 135, 155 S.W. 462, 465; Greaves v. K. C. Junior Orpheum Co., 80 S.W.2d 228, 238; Wright v. Automobile Gasoline Co., 250 S.W. 368, 374; Beckwith v. City of Malden, 212 Mo.App. 488, 253 S.W. 17. (2) Defendants Instructions "G," "J," and "H," were properly refused. Oliver v. Kessler, 95 S.W.2d 1229; Pandjiris v. Hartman, 94 S.W. 270; Wehmeyer v. Mulvihill et al., 150 Mo.App. 197, 130 S.W. 681, 685; Hanser v. Beiber, 197 S.W. 71; Daniel v. Phillips Petroleum Co. et al., 229 Mo.App. 150, 73 S.W.2d 355; Rice v. Gray et al., 225 Mo.App. 890, 34 S.W.2d 567; Monson v. Rouse, 86 Mo.App. 97; Harbison, Admstr. v. Chi. R. I. & P. Ry. Co., et al., 327 Mo. 440, 37 S.W.2d 609; Larey v. Mo.-Kansas & Texas R. Co., 64 S.W.2d 681, 684; Newman v. New York L. E. & W. R. Co., 7 N.Y.S. 560; Davern v. Drew, 138 N.Y.S. 1017; Jenkins v. Mo. St. Life Ins. Co. (Mo.), 69 S.W.2d 666. (3) Punitive damages are warranted and the amount assessed is not excessive. Newport v. Montgomery-Ward & Co. et al., 127 S.W.2d 687, 690; State ex rel. United Factories, Inc., v. Hostetter et al., 126 S.W.2d 1173, 1175; Stubbs v. Mulholland et al., 168 Mo. 47, 67 S.W. 650, 658-659; Oliver v. Kessler, 95 S.W.2d 1226, 1229; Dunlevy v. Wolferman, 106 Mo.App. 46, 79 S.W. 1165; Hutchinson v. Sunshine Oil Co., 218 S.W. 951; State ex rel. St. Joseph Belt Ry. Co. v. Shain et al., 108 S.W.2d 351, 356; Seested v. Post Printing & Pub. Co., 31 S.W.2d 1045, 1054; Meeks v. K. C. Pub. Serv. Co., 73 S.W.2d 337; Capstick v. T. M. Sayman Products, 34 S.W.2d 480, 485; Manley v. Wells, 292 S.W. 67, 69; LaChance v. National Pigments & Chemical Co., 104 S.W.2d 693; Hinsin v. Morris, 298 S.W. 254. (4) Actual damages assessed are not excessive. Hill v. S. S. Kresge Co., 217 S.W. 997, 999; Carp v. Queens Ins. Co., 203 Mo. 295, 101 S.W. 78; Vaughn v. Hines, 206 Mo App. 425, 230 S.W. 382; Peterson v. Fleming et al., 297 S.W. 163.

Bowersock, Fizzell & Rhodes for appellant.

(1) There was not sufficient evidence to submit this cause to the jury and the court should have directed a verdict for appellant. Vimont v. S. S. Kresge Co. (Mo. App.), 291 S.W. 159; Lark v. Bande, 4 Mo.App. 186; State ex rel. Fireman's Fund Ins. Co. et al. v. Trimble et al., 294 Mo. 615, 242 S.W. 934; Lappin v. Prebe et al. (Mo.), 131 S.W.2d 511; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Fritz et al. v. St. Louis, Iron Mountain & Southern Railway Co., 243 Mo. 62, 148 S.W. 74. (2) Under no circumstances is the appellant responsible for the continued detention of the respondent by the police authorities or for any mistreatment of respondent by such authorities. Newman v. New York, L. E. & W. R. Co., 54 Hun. 335, 7 N.Y.S. 560; Rice v. Gray et al., 225 Mo.App. 890, 34 S.W.2d 567; Harbison v. Chicago, Rock Island & Pacific Railway Co. et al., 327 Mo. 440, 37 S.W.2d 609. (3) The amount assessed by the jury as actual damages is grossly excessive. (4) The respondent is not entitled to punitive damages and the court erred in not so instructing the jury. Davis v. Chicago, Rock Island & Pacific Railway Co., 192 Mo.App. 419, 182 S.W. 826; Greaves v. K. C. Junior Orpheum, 229 Mo.App. 663, 80 S.W.2d 228; Hutchison v. Sunshine Oil Co. (Mo. App.), 218 S.W. 951; Vest v. S. S. Kresge Co. (Mo. App.), 213 S.W. 165. (5) The amount assessed by the jury as punitive damages is grossly excessive. Patzack v. Von Gerichten, 10 Mo.App. 424; Donlevy v. Wolferman, 106 Mo.App. 46, 79 S.W. 1165; Rice v. Gray, 225 Mo.App. 890, 34 S.W.2d 567; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Newport v. Montgomery Ward & Co. et al., 344 Mo. 646, 127 S.W.2d 687.

SPERRY, C. Campbell, C., concurs.

OPINION

SPERRY, C.

--This is a suit for damages for alleged false arrest and imprisonment. Plaintiff was Stanley B. McGill and defendant was Walnut Realty Company, a Corporation. Judgment was for plaintiff and defendant appeals.

Defendant's first complaint is that its demurrer to the evidence should have been sustained, because, it says, the evidence failed to establish that defendant's agent "caused, instigated or encouraged" plaintiff's arrest. In this connection defendant claims that the evidence on behalf of plaintiff was wholly circumstantial and that it failed to establish the ultimate fact, claimed by plaintiff, so conclusively as to eliminate every other reasonable hypothesis. This is the rule governing circumstantial evidence in civil cases. [Fritz et al. v. St. Louis, Iron Mountain & Southern Railway Co., 243 Mo. 62, 77, 148 S.W. 74.]

Because of the challenge of the sufficiency of the evidence we shall here set out fully such evidence as bears on the question of defendant's instigation of plaintiff's arrest. In doing so we will accept as true all evidence of plaintiff that tends to prove his cause of action, draw all reasonable inferences to be derived therefrom, and view the whole matter in the light most favorable to the cause of action. [Peterson v. Fleming, 222 Mo.App. 296, 297 S.W. 163.] We will disregard defendant's evidence tending to prove facts contrary to those which the evidence of plaintiff tended to establish. [Willhauck v. Chicago R. I. & P. Ry. Company, 332 Mo. 1165, 61 S.W.2d 336, 337.]

Plaintiff, at the time of this arrest, was a married man, of good reputation, and was employed by the Henrici-Lowry Engineering Company, a highly respected firm of Kansas City. He was a graduate civil engineer and had never been arrested prior to the occurrence herein complained of. Defendant was the owner of the Fidelity National Bank Building in Kansas City. A strike of building employees had been, and then was in progress in said building. There had been much violence offered to defendant's employees outside of the buildings, and stench bombs had been placed in the building during the course of the strike. As a result of these conditions defendant had arranged for its employees to remain, at all times, within the building, and had requested the Kansas City Police Department to furnish police protection, which was being done. Two policemen were kept constantly stationed in the main lobby of the building, near the elevator. These policemen were relieved every eight hours and others took their places. The police guard was under the supervision of two lieutenants of the police department, Hansen and Reddich, who alternated in making inspection tours to the building. Defendant's employee, Ulmer, was superintendent of the building and was charged with the duty of supervising the various building employees and of grading the building. He had an office in the subbasement where were located the engines, pumps, tanks, switches, etc., that operated the water, lighting, sewage and elevator services of the building. Ulmer had no power to issue passes to people coming to inspect the building. Defendant's employee, Alves, was building manager. He had an office on a higher floor. One desiring to inspect the building was required to first secure a pass from him. The building was open to the public and people were coming and going as usual. The elevators were running. Pickets were walking in front of the building and two police officers were stationed in the lobby. Those were the conditions existing on September 30, 1937.

Plaintiff was not aware that a strike was in progress and, at about 2 P. M., on September 30, 1937, he entered the lobby of the building. The firm for which he worked had under consideration the question of recommending to a client the purchase of sewage pumps of a particular type. A salesman for the company handling said pumps had informed plaintiff that there was a highly successful installation of these pumps in defendant's building and suggested that he inspect same. It was for that purpose that plaintiff entered the building. He saw a uniformed person, probably one of the policemen, near the elevators, and stated his errand to him. The officer referred him to defendant's employee, Ulmer, who was then in the lobby. Plaintiff testified as follows concerning subsequent conversations and events:

"I said, 'My name is McGill. I am with the Henrici-Lowry Engineering Company and a salesman by the name of Fithian tells me you have a very nice pump installation here and I thought you would allow me to see it and perhaps tell me something about your experience with it.'"

"He said, 'Well, why do you come particularly to see our pumps?'

"Well I stated that the salesman had told me that it was a very desirable installation to see and it was one of the newer types of pumps and for that reason I was particularly interested in seeing it.

"He asked me once more what firm I was with and I repeated that and then he took me very firmly by the arm and we walked up to the front of the lobby. He said, 'Come with me.' He said, 'I will take you to the man you want to see.' We went to the front of the lobby and we then turned into...