Newport v. Montgomery Ward & Co.

• Decision Date: 02 May 1939
• Docket Number: 35589
• Citation: 127 S.W.2d 687,344 Mo. 646
• Parties: Nadine Newport v. Montgomery Ward & Company, a Corporation, and Harold Hart and Mae Cooper, Appellants
• Court: Missouri Supreme Court

127 S.W.2d 687

344 Mo. 646

Nadine Newport v. Montgomery Ward & Company, a Corporation, and Harold Hart and Mae Cooper, Appellants

No. 35589

Supreme Court of Missouri

May 2, 1939

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed on remittitur of $ 10,000, for $ 12,000 actual and $ 2000 punitive damages.

L E. Oliphant and Watson, Ess, Groner, Barnett & Whittaker for appellant.

(1) The court erred in overruling defendants' objection to prejudicial argument of plaintiff's counsel in which he compared defendants with Russian Cossacks riding through the country lashing and riding people under the hooves of their horses. Kress Co. v. Lindley, 46 S.W.2d 378; Kirkpatrick v. Wells, 319 Mo. 1040, 6 S.W.2d 591; Monroe v. C. & A. Ry. Co., 297 Mo. 633, 249 S.W 644; Haake v. Milling Co., 168 Mo.App. 177; Stroud v. Doe Run Lead Co., 272 S.W. 1080; Torreyson v. Railroad, 144 Mo.App. 626; Nichols & Shepherd Co. v. Metzger, 43 Mo.App. 607; Bishop v. Hunt, 24 Mo.App. 373; Mahner v. Linck, 70 Mo.App. 380; Barnes v. St. Joseph, 139 Mo.App. 545; Smith v. St. L. Southwestern Ry. Co., 31 S.W.2d 105. (2) The court erred in entering the judgment and in failing to grant a new trial because the verdict was excessive. Ostertag v. Union Pac. Ry. Co., 261 Mo. 457, 169 S.W. 1; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Thompson v. St. L.-S. F. Ry. Co., 3 S.W.2d 1033; Vaughn v. Hines, 206 Mo.App. 425, 230 S.W. 379; Grayson v. St. Louis Transit Co., 100 Mo.App. 60, 71 S.W. 730; 25 C. J. 569. (3) The court erred in refusing to permit defendants to prove that plaintiff had admitted she knew her companions had taken merchandise. 25 C. J. 567; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; Meek v. Smith, 59 Colo. 461, 149 P. 627; Petit v. Colmary, 20 Del. 266, 55 A. 344; O'Malley v. Whitaker, 118 La. 906, 43 So. 545; Palmer v. Me. Cent. Ry. Co., 92 Me. 399, 42 A. 800; Comisky v. Norfolk, etc. Ry. Co., 79 W.Va. 148, 90 S.E. 385; Claiborne v. Chesapeake, etc. Ry. Co., 46 W.Va. 363, 33 S.E. 262; Nelson v. Snoyenbos, 155 Wis. 590, 145 N.W. 179; Harris v. Schlink, 200 Ill.App. 202; Thomas v. Powell, 7 C. & P. 807, 32 E. C. L. 746; Hardy v. Stevenson, 29 La. Ann. 172; Gisske v. Sanders, 98 P. 44; Mackie v. Ambassador Hotel, 11 P.2d 6; 22 C. J. 411; 70 C. J. 530. (4) The court erred in giving plaintiff's Instruction 2, because it gave the jury a roving commission to assess punitive damages. Zemlick v. A.B.C. Auto Sales, 60 S.W.2d 649; Clark v. Fairley, 30 Mo.App. 335; Lackey v. United Rys. Co., 288 Mo. 120.

Maurice O'Sullivan, Harold Waxman, R. W. Cummins and Chas. N. Sadler for respondent.

(1) The court did not err in overruling objection to argument. (a) The point is not properly before this court for review. (b) The argument was proper and not erroneous; (c) it was within the discretion of the trial court; and (d) no showing appellants were prejudiced in any way. Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 726; Randol v. Kline's, Inc., 49 S.W.2d 118; Mahimet v. Amer. Radiator Co. 294 S.W. 1016; Klaber v. C., R. I. & P. Ry. Co. 33 S.W.2d 154; Majors v. Malone, 100 S.W.2d 302; Gidionsen v. Union Depot Ry. Co., 31 S.W. 803; Davis v. Wells, 27 S.W.2d 715; Grab v. Davis Cons. Co., 109 S.W.2d 882; 38 Cyc. p. 1485; 64 C. J. 264-5; State ex rel. Meyer v. Daues, 285 S.W. 986; 1 Thompson on Trials, p. 750, sec. 965; Shelby v. Chilton's Adm., 32 S.W.2d 977; Tucker v. Hagan, 300 S.W. 301; Ostertag v. Union Pac. Ry. Co., 169 S.W. 5; Hancock v. K. C. Term. Ry. Co., 100 S.W.2d 578; Crews v. K. C. Pub. Serv. Co., 111 S.W.2d 61; Loyd v. H. & St. Joe Ry. Co., 53 Mo. 514; Stratton v. Nafziger Baking Co., 237 S.W. 544; Globe & Rutgers Fire Ins. Co. v. C. & A. Ry. Co., 160 S.W. 907; Homer v. Franklin, 171 S.W. 568; Aly v. Term. Railroad Assn., 119 S.W.2d 368; Rouchene v. Const. Co., 89 S.W.2d 65; Marlow v. Nafziger Baking Co., 63 S.W.2d 118; Irons v. Amer. Ry. Express Co., 300 S.W. 292; Hedlun v. Holy Terror Min. Co., 92 N.W. 35; Garopola v. Sociata Opliau, 112 S.W.2d 940; Tuck v. Springfield Traction Co., 124 S.W. 1087; Kennett v. Katz Const. Co., 202 S.W. 562; Shore v. Dunham, 178 S.W. 904; Kinney v. Street Ry. Co., 169 S.W. 27; 2 Hyatt on Trials, p. 1607, sec. 1515. (2) The verdict was not excessive. Cordroy v. Brookfield, 88 S.W.2d 166; Randol v. Kline's, Inc., 49 S.W.2d 113; Cook v. Globe Printing Co., 127 S.W. 332; Fisher v. Meyers, 100 S.W.2d 551; McNichols v. Continental Baking Co., 112 S.W.2d 849; 17 C. J. 1087, sec. 397; Brown v. Knapp & Co., 112 S.W. 474; Irons v. Amer. Ry. Express Co., 300 S.W. 283; Flynn v. Corich, 53 S.W.2d 1104; Wolfersberger v. Miller, 39 S.W.2d 765; Dawes v. Starrett, 82 S.W.2d 60; La Chance v. Pigments Chemical Co., 104 S.W.2d 697; 1 Joyce on Damages, p. 516, sec. 453; Field on Damages, p. 683-4, sec. 873; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 108 S.W.2d 351; Patrick v. Employer's Mut. Liab. Ins. Co., 118 S.W.2d 116. (3) The court did not err in refusing to permit defendants to prove that plaintiff had admitted she knew her companions had taken merchandise at the time mentioned by appellants for the reasons: (a) it was immaterial, and not within the pleadings (b) the questions were improper in that they were leading and suggestive and called for a conclusion of the witness as to the effect of the words, instead of asking for the words themselves, and (c) because although incompetent, the testimony was already before the jury by the testimony of the witness and the question called for a mere repetition. State ex rel. Armour Packing Co. v. Dickinson, 124 S.W. 32; Thompson v. St. L.-S. F. Ry. Co., 3 S.W.2d 1037. (4) The court did not err in giving Instruction 2 asked by respondent. Zemlich v. A.B.C. Auto Sales & Inv. Co., 60 S.W.2d 649; Clark Pro Ami v. Fairly, 30 Mo.App. 335; 3 Randall's Instructions to Juries, p. 2441, sec. 2078; Kennelly v. K. C. Rys. Co., 214 S.W. 238; Milburn v. Realty Co., 9 S.W.2d 664; Johannes v. Edw. G. Becht Laundry Co., 274 S.W. 379; Berryman v. Southern Surety Co., 285 Mo. 396; Buckner v. Thatcher, 7 S.W.2d 910; Greaves v. K. C. Junior Orpheum Co., 80 S.W.2d 228.

OPINION

PER CURIAM

Plaintiff sued appellants, Montgomery Ward & Company, Harold Hart and Mae Cooper, to recover damages for false arrest. There was a verdict and judgment for plaintiff in the sum of $ 12,000 actual and $ 12,000 punitive damages. An appeal was duly taken.

Mae Cooper was a house detective for defendant, Montgomery Ward & Company, and Hart was in charge of the house police for that company. Plaintiff lived in Kansas City, Kansas. On June 27, 1936, shortly after two o'clock, plaintiff in company with two of her friends, Ruth Maxon and Flo Taylor, went to Kansas City, Missouri, for the purpose of doing some shopping. They went to the retail store of defendant Montgomery Ward & Company. The evidence showed that after looking at some dresses they separated. Later plaintiff and Ruth Maxon met on the outside of the store, where they had agreed to meet, and were waiting for Flo Taylor when defendant, Mae Cooper, accosted them and informed Ruth Maxon that she was under arrest for shoplifting. Plaintiff accompanied Mrs. Maxon and Mrs. Cooper to the office of defendant Hart, located on one of the upper floors. They were told to remain there while Mrs. Cooper returned to the store for the purpose of locating Flo Taylor. In a short time Mrs. Taylor was found and was also taken to Mr. Hart's office. The police were called and plaintiff and her two companions were taken to the police station, booked for investigation and held until the next day, Sunday, at about eleven o'clock, when they were released on bond to appear at police court on Monday morning. They appeared, had a hearing, and Mrs. Maxon and Mrs. Taylor were found guilty of petit larceny and fined $ 25 each. Plaintiff was discharged. This suit followed.

The answer of defendants was a general denial. At the trial defendants maintained that they did not arrest plaintiff nor cause her arrest. Mrs. Cooper testified emphatically that she informed plaintiff she was not under arrest and she need not go with her to Mr. Hart's office. Defendant Hart also testified that he informed plaintiff she was not under arrest and could go home. These defendants further testified that plaintiff stated she was with these people, that is, Mrs Maxon and Mrs. Taylor, and she would stay with them; that she voluntarily went with the police when they took the other two to the police station. Plaintiff, on the other hand, emphatically denied that she was ever told she was not under arrest, but asserted that Mrs. Cooper arrested her by commanding her to go to the office of defendant Hart. Plaintiff testified that there she was requested to make and sign a statement; that when the police arrived defendants Hart and Cooper referred to plaintiff and her companions as three shoplifters; that the police thereupon took her and her two companions to the police station. It was conceded that all three women were booked for investigation and denied bail until the next day; that they were photographed and their finger prints taken; that these finger prints and photographs were sent to the various bureaus for the identification of criminals. Defendant Cooper asked for and was given a photograph of plaintiff which she placed in the files of the defendant company for future reference. This picture of plaintiff was taken with a card hung about her neck marked KCPD 24814. Plaintiff's husband went to the police station and attempted to see her and give bond but was not permitted to do so. When plaintiff and her companions were taken to Hart's office each had a bag. Plaintiff had a hat bag and the other two had shopping bags. These bags were in their possession when they entered defendant's place of...