Peak v. W. T. Grant Co.

• Decision Date: 12 December 1966
• Docket Number: No. 52341,52341
• Citation: Peak v. W. T. Grant Co., 409 S.W.2d 58, 31 A.L.R.3d 697 (Mo. 1966)
• Parties: Candace Louise PEAK, by her Mother and Next Friend, Margaret E. Peak, Respondent, v. W. T. GRANT COMPANY, Appellant.
• Court: Missouri Supreme Court

Page 58

409 S.W.2d 58

31 A.L.R.3d 697

Candace Louise PEAK, by her Mother and Next Friend, Margaret E. Peak, Respondent, v.W. T. GRANT COMPANY, Appellant.

No. 52341.

Supreme Court of Missouri, En Banc.

Dec. 12, 1966.

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

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

HOLMAN, Judge.

Action for false arrest and imprisonment.Plaintiff obtained a verdict and judgment for $1,000 actual and $2,000 punitive damages.Defendant appealed to the Kansas City Court of Appeals and that court adopted an opinion affirming the judgment.Upon defendant's application we ordered the case transferred to this court and it will be determined here 'the same as on original appeal'.CivilRule 84.05(h), V.A.M.R.;Mo.Const. Art. V, § 10(1945), V.A.M.S. Plaintiff's sister, Pamela, previously obtained a judgment against Grant growing out of the same occurrence which was affirmed.SeePeak v. W. T. Grant Company, Mo.App., 386 S.W.2d 685.

The incident here involved occurred on Saturday afternoon, December 15, 1962, in defendant's store located in the Antioch Shopping Center in Kansas City North, Missouri.That day was the largest selling day before Christmas and the store was crowded.Mr. Kenneth Burton was the manager of the store and Mr. Terry Knapp the assistant manager, was serving as floor supervisor.

Plaintiff, then 13 years old, together with her mother, her sister Pam them 16 years old, and her 12-year-old brother Tim, arrived at the shopping center about 2:30 p.m. to do their Christmas Shopping.They decided to separate so they could make purchases without revealing what they were buying for each other.Pam went to the TG & Y Store, her mother to the Crown Drug Store, and plaintiff and Tim went to Grant's.Tim went to the toy department while plaintiff looked around in other sections of the store.One of defendant's clerks, Mildred Howard, testified that she observed plaintiff standing at a rack of car coats trying to get her purse closed; that 'she was working with her purse trying to close it, but couldn't because it was too full to close'; that when she sought to wait on her she hurriedly left the department; that she then suggested to Mr. Knapp that he watch her because she was suspicious of her actions.

Terry Knapp testified that after Mrs. Howard talked with him he started watching plaintiff, and asked Mr. Stawicki, a security officer employed by the shopping center, to help him; that he noticed plaintiff's purse was very full; that plaintiff began to walk very rapidly, frequently changing directions; that she had been joined by her brother and when they neared the store exit they'ducked' under the railing; that he then asked the officer to stop them; that Mr. Stawicki showed plaintiff his credentials and, at his request, plaintiff and Tim accompanied them to a place near the luncheonette; that plaintiff's purse was still very full and Mr. Stawicki asked her if 'we might see her purse,' but she refused; that her brother grabbed her purse and tried 'to hand it to us,' but she grabbed it back away from him; that at that point her older sister Pam came up and asked that they be permitted to leave, but the request was denied; that Mr. Stawicki then left to get a uniformed police officer, and the brother went to get his mother; that he and the two girls then moved to another area of the store, during which time plaintiff disappeared for about three or four minutes; that a few minutes later when plaintiff's mother arrived she directed that plaintiff hand the purse to Mr. Stawicki who had returned; it was then opened and nothing belonging to defendant was found therein.Plaintiff testified that she was detained almost an hour, and denied having taken anything from the store.

Both Knapp and Stawicki denied touching or holding onto plaintiff at any time, but plaintiff and several of her witnesses testified that they did.A large crowd gathered and observed the proceedings, and plaintiff, according to one witness, was crying hysterically.

On the question of damages there was testimony from plaintiff and members of her family, as well as her minister, that she cried for days after the incident, talked in her sleep, and did not go to school the following Monday.

Defendant's main contentions on this appeal is that the court erred in giving InstructionNo. 1 because it submitted the issue of Knapp's agency without any definition of that subject.The instruction reads as follows:

'(MAI No. 23.04, modified--offered by plaintiff) Your verdict must be for plaintiff if you believe: First, witness Knapp was agent for, and at all times mentioned herein was the agent of, defendantW. T. Grant Company, and acting for and on behalf of the defendant and within the scope of his employment, and Second, witness Knapp intentionally restrained plaintiff against her will, unless you believe plaintiff is not entitled to recover by reason of InstructionNo. 4.'

It will be noted that the instruction was basically MAI 23.04.However, plaintiff had alleged in her petition that 'At all times herein mentioned, one Terry Lee Knapp was the Assistant Manager of the store of defendantW. T. Grant Company and was acting in that capacity for and on behalf of defendantW. T. Grant Company, and within the scope and authority of his employment.'Defendant, in its answer, had denied that allegation and hence it was a contested issue in the case Therefore, plaintiff properly included paragraph 'First' submitting the issue of agency in a manner similar to that suggested in MAI 18.01.Plaintiff did not, however, follow the directions under 'Notes on Use' relating to 18.01 which stated that '(w)hen the issue of agency is submitted, the appropriate definition must also be submitted.See 13.02 to 13.06.'MAI 13.02 would appear to have been appropriate for that purpose.

In connection with a consideration of the necessity of definitions concerning agency we note that it is stated in MAI 13.01, that 'As the pattern instructions submit only ultimate issues, a question of respondeat superior liability might be submitted simply 'The driver Jones was operating the (defendant's) motor vehicle within the scope and course of his agency for (defendant).'But these words alone are not apt to mean much to lay jurors, so some clarification is needed.The definitions following are intended to supply this clarification.'

We have concluded that the court committed reversible error in failing to give the jury an instruction containing an appropriate definition upon the issue of agency.The basic theory concerning the use of MAI is that when an approved instruction is applicable it must be given to the exclusion of any other instruction on the same subject.In choosing appropriate instructions and modifications thereof it is essential that attorneys...