Perry v. S. H. Kress & Co.

• Decision Date: 21 January 1961
• Docket Number: No. 41976,41976
• Citation: 187 Kan. 537,358 P.2d 665
• Parties: Steve PERRY, a Minor by and through J. C. Perry, his father, next friend and natural guardian, Appellee, v. S. H. KRESS AND COMPANY, a Corporation, and W. R. Lowe, Appellants.
• Court: Kansas Supreme Court

Page 665

358 P.2d 665

187 Kan. 537

Steve PERRY, a Minor by and through J. C. Perry, his father next friend and natural guardian, Appellee, v. S. H. KRESS AND COMPANY, a Corporation, and W. R. Lowe, Appellants.

No. 41976.

Supreme Court of Kansas.

Jan. 21, 1961.

Syllabus by the Court.

1. The action for false imprisonment always includes the element of assault and the fact a petition to recover damages for an alleged false imprisonment contains allegations to the effect the imprisonment was accompanied by an assault and battery does not change the character of the action.

2. The record in an action to recover damages for false imprisonment examined and held that, under the facts, conditions and circumstances set forth in the opinion, the trial court did not err in denying the defendants' motion to separately state and number causes of action nor in overruling their demurrer to the amended petition.

Kirke C. Veeder, Independence, argued the cause and was on the briefs for the appellants.

Tom Crossan, Independence, argued the cause and was on the briefs for the appellee.

PARKER, Chief Justice.

Plaintiff Steve Perry, a minor, by his father J. C. Perry, as next friend and natural guardian, brought this action in the district court of Montgomery County against the defendants, S. H. Kress and Company, a corporation, and W. R. Lowe, the manager of its retail store at Independence, Kansas, to recover damages alleged to have been sustained by such minor by reason of certain acts and conduct on the part of the corporation's manager and employees, while acting within the scope of their employment, at a time when the plaintiff was within the confines of the corporation's place of business.

Inasmuch as the amended petition recites the acts and conduct on which plaintiff relies for recovery and the record makes it appear appellate issues are limited to rulings, hereinafter mentioned, made by the trial court on attacks made against it by the defendants, portions of that pleading will be quoted.

Omitting formal averments, factual assertions relating to matters previously mentioned, allegations respecting the amount of damages claimed as a result of the alleged acts and conduct, and its prayer, pertinent portions of the amended petition read:

'On March 25, 1959, at about four or five o'clock P.M. the plaintiff * * *was in the defendant's * * * retail store * * * standing near a toy counter.

'As plaintiff was standing near said toy counter, and after he had been in said store for five or ten minutes, S. H. Kress and Company, acting by and through its agents, servants and employees, to-wit: Charles Merchant and W. R. Lowe, * * * unlawfully, falsely and maliciously accused plaintiff of stealing phonograph records from the defendant, * * * Company. Said * * * Lowe and * * * Merchant did then and there take plaintiff in custody, which was accomplished when the said * * * Lowe ordered plaintiff to remain where he was and to submit to a search of his person, and which was accomplished by the said * * * Lowe by placing his hands upon the person and clothing of plaintiff * * * Said * * * Lowe did then and there search the person and clothing of plaintiff by placing his hands upon the person, clothing and in the pockets of plaintiff. Said illegal detention and search was thus accomplished by force and the implied threat of force. Said placing of the hands of the said * * * Lowe upon the person and clothing of plaintiff constituted an assault and battery upon plaintiff and plaintiff was restrained of his liberty for the space of twenty minutes, without reasonable cause and against the will of plaintiff, all at the direction of * * * Lowe * * *

'As a result, thereof, plaintiff was humiliated * * * said false imprisonment caused his credit and standing in the community * * * to be injured; * * * and that he had stopped at said store on his way to his home, when he was thus detained and falsely imprisoned. The plaintiff's mental health has been injured, and he has become mentally depressed; all on account of this false imprisonment * * *

* * *

* * *

'As a proximate result of said false imprisonment, unlawful search and assault and battery, plaintiff has suffered * * * damages * * *'

With the amended petition in form as just indicated defendants attacked that pleading by a motion wherein they charged in substance that it contained two causes of action, i. e., (1) for the alleged assault and battery upon plaintiff and (2) for the alleged false imprisonment of plaintiff, and asked that plaintiff be required to separately state and number such causes of action, also that he be required to separately state the amount of damages claimed to have been sustained by him for the alleged assault and battery and for the alleged false imprisonment. This motion was overruled on July 1, 1959.

Thereupon defendants filed a demurrer to the amended petition based on grounds (1) that several causes of action were improperly joined therein and (2) that such pleading failed to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants. This demurrer was overruled by the trial court on August 15, 1959.

Thereafter, and on September 5, 1959, defendants perfected the instant appeal under a notice of appeal, reciting they were appealing from the order overruling their motion to require plaintiff to separately state and number his causes of action and allege the damages claimed on account thereof and from the order overruling their demurrer to the amended petition. In this court under proper specifications of error they urge that each of such rulings is erroneous and should be reversed.

The first question raised by appellants is that under the existing facts and circumstances this court has appellate jurisdiction over both of the rulings from which they appeal. We agree.

The clear and unequivocal provisions of G.S.1949, 60-3302, provide that this court may reverse, vacate or modify any order of the district court or a judge thereof that overrules or sustains a demurrer.

Under and by virtue of the provisions of G.S.1959 Supp. 60-3314a, when an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains of was made more than two months before he perfected his appeal shall not prevent a review of that ruling.

For a recent decision construing the force and effect to be given the last mentioned section of the statute see Wilson v. Kansas Turnpike Authority, 181 Kan. 1025, 317 P.2d 843, 844, where it is held:

'Under the provisions of G.S.1955 Supp. 60-3314a, where a defendant appeals from an adverse ruling on his demurrer to the petition he may have a review of all prior adverse rulings of which he complains if such rulings are included in his notice of appeal. (Following Bortzfield v. Sutton, 180 Kan. 46, 299 P.2d 584; Smith v. Wright, 180 Kan. 584, 305 P.2d 810.)' (Syl. p1.)

For other decisions of like import see Holmes v. Kalbach, 173 Kan. 736, 252 P.2d 603; Foster v. Humburg, 180 Kan. 64, 70, 299 P.2d 46; Williams v. City of Wichita, 184 Kan. 53, 56, 334 P.2d 353; Coe v. DeMars, 184 Kan. 780, 339 P.2d 72.

Here, as the facts previously related disclose, appellan...