Oliver v. Kessler

• Decision Date: 14 July 1936
• Docket Number: No. 23390.,23390.
• Citation: Oliver v. Kessler, 95 S.W.2d 1226 (Mo. App. 1936)
• Parties: OLIVER v. KESSLER et al.
• Court: Missouri Court of Appeals

95 S.W.2d 1226

OLIVER v. KESSLER et al.

No. 23390.

St. Louis Court of Appeals. Missouri.

July 14, 1936.

Rehearing Denied July 20, 1936.

Appeal from St. Louis Circuit Court; Hon. John W. Calhoun, Judge.

"Not to be published in State Reports."

Action by Charles Oliver against Herbert C. Kessler and another. Judgment for plaintiff on a remittitur, and defendants appeal.

Affirmed.

Dunbar & Dubail and Charles R. Judge, all of St. Louis, for appellants.

Emmett Golden and Rene J. Lusser, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for false imprisonment. The petition alleges that the defendants unlawfully, willfully, falsely, and maliciously caused plaintiff to be arrested and imprisoned by police officers in the city of St. Louis, on November 1, 2, and 3, 1932, and prays judgment for actual and punitive damages.

The answer of defendants is a general denial coupled with a plea of justification.

The trial, with a jury, resulted in a verdict in favor of plaintiff against both defendants for $1,500 actual damages and $500 punitive damages, and judgment was entered accordingly. The defendants duly filed their motions for a new trial. A remittitur of $1,000 from the award of actual damages was ordered, the remittitur was entered, the judgment was set aside, a new judgment was entered for $1,000, and the motions for a new trial were overruled. Defendants appeal.

Errors are assigned by defendants here for the refusal of their instructions in the nature of demurrers to the evidence. The assignments are put on the ground that the evidence fails to show that the defendants, or either of them, instigated, directed, or encouraged plaintiff's arrest.

The evidence shows that on November 1, 1932, and for a long time prior thereto, plaintiff was in the employ of defendant Alex Kessler Fur Company as porter and delivery boy. Defendant company owned and operated a store at 1008 Locust street, in the city of St. Louis. Defendant Herbert C. Kessler was vice president of the defendant company. The building where defendant company operated its store consisted of four floors and a basement. There was a vault in the basement where the company kept its valuable fur coats.

On Thursday, October 28, 1932, it was discovered that a valuable fur coat, said to be worth $1,600, was missing from the vault. A search was made for the coat throughout the building, but it was not found. The police department of the city of St. Louis was notified by defendant Kessler. The department sent over to defendant company's store two detectives, who questioned the defendant company's employees, including the plaintiff, who denied any knowledge concerning the disappearance of the coat. This questioning took place on the third floor of the building in the office of defendant Kessler. Defendant Kessler and his wife were present at the questioning. Defendant Kessler requested plaintiff and other employees to come to the third floor, and the employees went there in response to his request.

According to plaintiff's testimony, he was again called to defendant Kessler's office on the morning of Tuesday, November 1, 1932. One detective and Mrs. Kessler were in the office when plaintiff appeared there. Defendant Kessler followed plaintiff into the office. The detective said to plaintiff, "Charles, we have you. I have enough on you to send you to the penitentiary for life for the theft of that coat." Defendant Kessler said, "Now Charles it is time for you to kick in." The detective said, "The best thing for you to do is to kick in because the only people who can save you are Mr. and Mrs. Kessler." Plaintiff said, "I don't know anything about the coat." The detective then said to plaintiff, "You are under arrest." Plaintiff asked, "Who ordered the arrest?" The detective said, "Mr. and Mrs. Kessler." To this neither defendant Kessler nor his wife made any response. Then defendant Kessler, Mrs. Kessler, the detective, and the plaintiff went down together on the elevator to the first floor. When they arrived at the first floor, defendant Kessler said to plaintiff, "Charles, why don't you kick in?" To this plaintiff replied, "Mr. Kessler, I don't know anything about the coat." Then defendant Kessler said, "Take him on officer, take him on officer."

Glenna Hentier, an employee of defendant company, testified: "I remember Oliver was arrested in connection with the missing coat. I remember the circumstances of what happened on that day. All I remember what happened there was when they took Oliver. I remember Mr. Kessler telling the police to take Oliver on. I remember they told Oliver there was a chance to save himself if he would kick in. Oliver said he could not kick in because he did not know anything about it. I gave a statement to the insurance agent with regard to the coat."

Plaintiff was taken by the detective to the police station in a police car which was labeled on the sides with the words, "Metropolitan Police Department." At the station he was again questioned, and was then put in a jail cell. He was kept there until the following Thursday in the afternoon. He was then returned to the Kessler Company store and was released, and defendant Kessler discharged him from the employment of the company.

It is obvious that the instructions in the nature of demurrers to the evidence were properly refused. The evidence clearly shows that defendant Kessler, vice president of defendant company, expressly ordered plaintiff's arrest and imprisonment. This showing made out a prima facie case for the plaintiff, and the burden was on the defendants to show a justification of the arrest and imprisonment. No such showing was made. Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270; 25 C.J. 463, 466, 471, 534; Greaves v. Kansas City Junior Orpheum Co. (Mo.App.) 80 S.W.(2d) 228, loc.cit. 236, 237; Thompson v. Buchholz, 107 Mo. App. 121, 81 S.W. 490; Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335, 70 S.W. 878, 94 Am.St.Rep. 740; Thompson v. St. Louis-San Francisco Ry. Co. (Mo.App.) 3 S.W.(2d) 1033, loc. cit. 1037; Peterson v. Fleming, 222 Mo.App. 296, 297 S.W. 163, loc. cit. 168; Wright v. Hoover, 211 Mo.App. 185, 241 S.W. 89, loc. cit. 90.

Error is assigned by defendants for the giving of plaintiff's instruction No. 1. The instruction directs a verdict in favor of plaintiff against defendant Kessler upon a finding that said defendant unlawfully and willfully, falsely, and maliciously, and intending to oppress the plaintiff and deprive him of his liberty, and to bring shame and disgrace upon him, caused plaintiff to be arrested by the police officers of the city of St. Louis, without warrant of law, and to be carried by said police officers through the streets of the city of St. Louis in a police conveyance to the police station and to be confined in a jail cell, and directs a verdict for plaintiff against defendant Kessler Fur Company upon a further finding that defendant Kessler was a duly authorized agent and officer of the Kessler Fur Company at the time of said unlawful act, and that such act was done by said defendant Kessler within the scope of his employment and agency.

The instruction is complained of on the ground that it does not define the terms "unlawfully" and "without warrant of law," so that the instruction submits to the jury the question as to whether or not the plaintiff's arrest and imprisonment was lawful. We are unable to hold that the instruction was prejudicially erroneous in view of the facts and circumstances as disclosed by this record. There was no evidence to show that plaintiff's arrest and imprisonment was lawful, and, as already said, the burden was on the defendants to so show. Moreover, defendants did not try the case below on the theory that the arrest and imprisonment was lawful, but tried it on the theory that they did not instigate, direct, or encourage the arrest and imprisonment. Justification of the arrest and imprisonment is an affirmative defense. Defendants wholly abandoned this defense in the submission of the case to the jury. By their instructions they submitted the case on the sole theory that the defendants did not instigate, direct, or encourage the arrest and...