Peak v. W. T. Grant Co.

• Decision Date: 07 December 1964
• Docket Number: No. 24102,24102
• Citation: Peak v. W. T. Grant Co., 386 S.W.2d 685 (Mo. App. 1964)
• Parties: Pamela Sue PEAK, by her father and next friend, Francis Wilber Peak, Plaintiff-Respondent, v. W. T. GRANT COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 685

386 S.W.2d 685

Pamela Sue PEAK, by her father and next friend, Francis Wilber Peak, Plaintiff-Respondent, v. W. T. GRANT COMPANY, Defendant-Appellant.

No. 24102.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1964.

Motion for Rehearing or Transfer to Supreme Court Denied

Feb. 1, 1965.

Application to Transfer Denied March 8, 1965.

Rodger J. Walsh, Rafter, Biersmith, Miller & Walsh, Kansas City, for appellant.

Wilbur L. Pollard, Williams, Norton & Pollard, North Kansas City, for respondent.

HUNTER, Judge.

This is an action for false arrest and imprisonment. Pamela Sue Peak by her father and next friend, Francis Wilber Peak, obtained a verdict and judgment for $2,500 actual damages and $4,000 punitive damages against defendant-appellant W. T. Grant Company, a corporation.

On this appeal the W. T. Grant Company has charged the trial court with having erred in failing to direct a verdict for defendant, in admitting into evidence plaintiff's Exhibit No. 3, in giving plaintiff's Instruction No. 3, and in not setting aside the verdict on the ground it is excessive. We will proceed to set out only such of the evidence as is pertinent to the proper disposition of these contentions of error. In determining whether defendant was entitled to a directed verdict we view the evidence in its most favorable light to the plaintiff, as is the rule.

The incident involved occurred on Saturday afternoon, December 15, 1962, in defendant's store located in the Antioch Shopping Center in Kansas City North, Clay County, Missouri. The Grant Store was about 200 feet by 400 feet in size on the ground floor and it has offices on a lower or basement floor. That day was the largest selling day before Christmas and the store was very crowded with some 400 customers and 52 employees being present. Kenneth Burton was the store's manager and Terry Knapp was the store's floor supervisor.

Plaintiff (hereinafter referred to as Pam) who was then sixteen years old, together with her mother, her sister Candace (Candy) then thirteen years old, and her brother Tim, then twelve years old arrived at the shopping center about 2:30 p. m. to do their Christmas shopping. The children had $5.00 apiece for this purpose. They decided to separate so they could make purchases without revealing what they were purchasing for each other. Pam's mother went to the Crown Drug Store. Pam went to the T. G. & Y. Store and Candy and Tim went to Grant's.

Mrs. Howard, an employee of Grant's for seven years, saw Candy near a rack of clothing in her department. Candy had a 'clutch' purse and according to Mrs. Howard 'she couldn't get it closed, it was so full.' * * * 'I didn't see her put anything in her purse; I saw her working with her purse, trying to get it closed.' It appeared Candy was trying to push down the contents of her purse so she could close it.

Mrs. Howard testified she walked up to help Candy and Candy's face got red, she appeared frightened and left hurriedly toward the other end of the store. 'And she didn't get it (purse) closed when she left the department.' Mrs. Howard pointed out Candy to Knapp and told him she thought Candy might be putting something in her purse. Knapp was watching for shoplifters that day. He started watching Candy and noticed she was carrying a very full purse. After watching her three or four minutes he saw a Mr. Stawicki, a part time security officer for the Antioch Shopping Center Merchant's Association whose duties included assisting the Association's members, including Grant's in apprehending shoplifters. He signaled Mr. Stawicki, and the two of them endeavored to follow Candy and her brother as they went in and out the isles to some six or seven counters. Knapp described Candy's actions in darting in and out of isles as 'evasive' and to him suspicious. Finally Candy and her brother went under the railing beyond the check stand to the door. Knapp then told Stawicki to stop Candy and he did so. Stawicki showed her his card credentials, told her he was the security officer for the Shopping Center and said he wanted to speak to her because she was suspected of shoplifting. According to Stawicki the purse was still very full and he asked to see it. She held onto it. He asked her to follow him and she did. They all went to the northeast corner of the store. Tim told Candy to show her purse but she continued to hold on to it. Tim then left to go get Pam who by then had left the T. G. & Y. store and had entered Grant's store.

Tim returned with Pam. According to Pam, 'I went in between the two men to my sister, and Tim went around them over to her. I * * * asked them what they wanted.' Stawicki told Pam he wanted to see her sister's purse. Pam wanted a uniformed police officer and Knapp asked Stawicki to get one. He left to do so, and Knapp wanted Pam and Candy to go to the basement.

Knapp took hold of Candy's arm. 'I (Pam) told him to leave her alone.' * * * 'I took her by the hand and told her that we'd go get Mom.' Knapp ordered her to stay until the officer arrived. 'He (Knapp) took hold of my coat * * * with both of his hands. * * * Well, I told him I'd scream, and he started shaking me. * * * Well, I screamed, and he threw me around into a--rack of clothes. * * * It was pushed 'way back into the other racks (her lower back struck it). * * * I had the box that I got--the airplane for Timmy--and I hit him in the side of the head with it (and repeatedly kicked him on the shins).' Tim left to go get his mother.

Pam continued to scream and Knapp tried to cover her mouth. He dragged her by the arm across the store to a big safe located near the stairway to the basement offices. According to one witness, Knapp was slapping Pam and knocking her into several counters as he dragged her along toward the basement steps. In the process a little boy was knocked down and a crowd of some forty or more gathered. Until this time neither Knapp nor Stawicki had identified themselves to Pam. They were not in any type of uniform.

Grant's manager, Mr. Burton, arrived as did Pam's mother and Tim. Mr. Stawicki then returned with a police officer. Upon learning about the fracas Pam's mother took Candy's purse and gave it to Stawicki. Upon examination by Stawicki with the others looking on it was determined that the purse contained only the usual articles that young girls customarily carried and did not contain anything that belonged to Grant's. Stawicki and Knapp testified the purse opened to be much thinner than when earlier observed by them. Knapp stated he had not seen Candy for a short while before her mother arrived but conceded that he had not actually seen her leave the group. Candy in her testimony denied she had ever left the area, denied her purse was any thinner and denied she had taken anything at Grant's.

Pam, her mother, Candy and Tim then left the store, and Pam was taken to a doctor. Her injuries will be discussed later.

On this appeal defendant contends the trial court erred in failing to direct a verdict for defendant because plaintiff failed to prove defendant's employee, Mr. Knapp, was acting within the scope of the authority conferred upon him and failed to make a submissible case on the question of agency. Knapp testified without objection that he was defendant's floor supervisor at the Grant store and that one of his duties was to watch for and apprehend shoplifters. Knapp described the large number of shoplifters that he and other employees at Grant's had apprehended in the past and after this incident and stated that most of them were teenagers. He told how defendant Company gave him written instructions on shoplifters in the store--what to do with them--what procedure to follow. 'Q. Did you follow the store's procedure? A. Yes, sir. Q. Now, this procedure was taught to you by whom? A. Mr. Burton. Q. And was it part of your training? A. Yes, sir, it is part of the training. Q. * * * This Saturday--were you watching for shoplifters that day? A. Very much so, yes. Q. And that's part of your job every day isn't it?--Watching for shoplifters? A. Yes, sir, it is; every day.' Testimony from Mr. Burton corroborates that it was a part of the manager and assistant manager's duties to watch for and apprehend shoplifters and to protect the company's property.

Defendant's written directive (plaintiff's Exhibit No. 3) provided in part, 'Never detain a person on uncorroborated word of saleswoman or customer as they may be mistaken * * *.' * * * 'Before anyone is detained and brought back to store be sure that there is not any doubt of guilt, for once arrest is made, withdrawal of charge cannot save company from liability. * * *

'Never cause an arrest unless evidence is so strong that conviction is inevitable. It is better that a guilty shoplifter be allowed to escape justice occasionally rather than subject Company to suits for false arrest. * * *' Defendant's specific contention is that since Knapp's actions were based upon what the clerk told him he exceeded his authority as set out in plaintiff's Exhibit No. 3 and therefore this defendant is not liable for his actions and especially is not to be subjected to punitive damages.

The liability of a principal for a wrongful restraint or detention by an agent or employee depends on whether the act was authorized or subsequently ratified, or whether the act was within the scope of the agent's or employees employment or authority. 35 C.J.S. False Imprisonment Sec. 40(1), page 687. Thus, the defendant is liable for the wrongful arrest and detention of plaintiff only if its employee, Mr. Knapp, in so doing acted within the scope of his authority, express or implied. Heinold v. Muntz T. V., Mo.Sup., 262 S.W.2d 32.

In Knowles v. Bullene & Co., 71 Mo.App. 341, this court held that the employer of a large department store was liable in an action for false arrest and imprisonment of a person arrested by his floorwalker for stealing lace from a counter although the...