R. H. Macy & Co. v. Bell

• Decision Date: 08 December 1975
• Docket Number: No. KCD,KCD
• Citation: 531 S.W.2d 58
• Parties: R. H. MACY & COMPANY, Plaintiff-Respondent, v. George BELL, Defendant-Appellant. 27599.
• Court: Missouri Court of Appeals

Page 58

531 S.W.2d 58

R. H. MACY & COMPANY, Plaintiff-Respondent, v. George BELL, Defendant-Appellant.

No. KCD 27599.

Missouri Court of Appeals, Kansas City District.

Dec. 8, 1975.

Elwyn L. Cady Jr., Independence, for defendant-appellant.

William H. Sanders, Thomas W. Wagstaff, William A. Lynch, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for plaintiff-respondent.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

DIXON, Judge.

This appeal is by the defendant, George Bell, from an adverse jury verdict on a counterclaim against R. H. Macy & Company. The genesis of the litigation was a magistrate court suit in conventional form initiated by Macy's to collect from Bell an indebtedness of $1,676.23 for merchandise sold and delivered. Bell responded with a counterclaim bottomed on what has been termed 'harassment.' The counterclaim seeking $20,000 compensatory and $40,000 in punitive damages exceeded the jurisdictional limit of the original forum and the cause was transferred to the circuit court for trial.

Bell asserts trial error in the argument of counsel, in the refusal of the trial court to permit an exhibit to be passed to the jury, and in the trial court's refusal to read a federal statute to the jury. Macy's counters by asserting no error occurred and by a supplemental brief asserting Bell failed to make a submissible issue for jury determination on either liability or damages.

Bell had incurred the obligation which was the basis of the Macy suit while employed by Macy's. That employment was terminated in 1970; and, at the time of trial in 1974, Bell had paid less than $200 on the account in the four years preceding the trial. Macy's claim was admitted by Bell when the case commenced in the circuit court, leaving only the issues presented by the counterclaim to be determined.

Bell claimed that his mental 'tranquility' was disturbed because of phone calls made to him by agents of Macy's in the efforts made to collect the account. The thrust of his petition and the ultimate submission of his claim of liability was that the phone calls were in violation of 47 U.S.C. § 223, which makes repeated telephone calls in interstate commerce 'solely to harass' a criminal offense under the federal law.

The evidence which supports that theory of recovery considered in the light most favorable to the proponent demonstrates the following facts.

Bell testified at length concerning three specific calls, two of which occurred in the same day. The first call resulted from a note his sister left for him to return a call. Bell returned this call and asked to speak to a Miss Johnson whose name apparently was on the message. Miss Johnson was not in. Bell then mentioned that he was surprised because he thought the number he had called was for KUDL radio station and that a message had been left for him to call Miss Johnson so that she could ask him the question of the day; and if he could answer it correctly, he would win a prize and that it was very important for him to call her back. Macy's responded by informing Bell that he was not speaking to KUDL but, rather, to Macy's Collection Department. Macy's asked Bell who he was, and he told them, whereupon they proceeded to look up his account and asked Bell when he was going to make payment. Bell explained that he was unemployed and could not make payment on any bills at that time. Macy's replied that the situation had gone on so long that they had to have some kind of payment.

The afternoon of the same day Bell received a message to call 'Stan.' He tried several times without being able to reach Stan and finally talked to someone there who would not give him Stan's last name. The purport of that conversation is reflected in the following questions and answers by Bell:

'q. And what did you say to him and what did he say to you on that occasion?

A. I asked him if Stan was there and evidently he said no. I can't remember that I actually talked to Stan.

Q. I see.

A. And I asked and he said no and I said, 'Well, what is his last name?' He wouldn't tell me. And I asked him, 'Do you know what he wanted me for?' And he said, 'Well, it was probably regarding your account.' And I said, 'Well, with whom am I speaking?' And he gave his name, I don't know who it was, and he said it was Macy's credit collection.'

Bell proceeded to discuss his account in the same terms as he had in the first call. He then made calls to another number that was listed on a second note, but found out the number, which had been a Macy's collection number, was disconnected.

Bell characterized these calls as 'fraudulent.'

Bell testified that in one of the last calls he received, '. . . they demanded that I talk to the man, that I find some means to pay them off in cash and he didn't care how it was, even if I had to go out and sell everything I had, . . ..' Bell characterized the tone of voice and type of language as extremely hateful, demanding and threatening.

Some calls appearently involved a neighbor. Bell's testimony here is extremely vague, but apparently on several occasions Bell called a number at the instance of a neighbor. The number turned out to be Macy's collection department and '. . . we would go through the same thing, only they were becoming more severe in their threats and demands then, and a couple of the last calls I didn't answer because I had written them letters explaining my situation and I saw no reason to be bothered on the telephone after I had communicated with them by mail.' In attempting to reach Bell by telephone, Macy's spoke to Bell's mother (over five times), Bell claims. Bell testified, '. . . as a result of that, I called Macy's and it was the same thing all over again, and I explained to them about calling and bothering my mother, about her age and the difficulty she has getting around and that I did not want them harassing her too.'

Bell was called not only at his home but also at his place of employment, i.e., Shepherds in Kansas City, Kansas. He received 'more than a few' calls there. 'The only call that I can remember that was more severe than the others was the one where someone from the credit collection department called me at nine o'clock in the morning over there and demanded that I be at the Mission store before ten o'clock that same day and make payment in full or they were going to cause me more trouble than I knew what to do with.' Bell was also called several times while employed at GEM. Bell had, however, asked Macy's not to call him at home.

Macy's collection records which were in evidence showed that beginning in May, 1971, calls were made monthly through the rest of 1971. Two of those calls indicated Bell's mother was reached and in one of them his sister responded stating Bell was ill. The suit in Magistrate court was filed in January, 1972.

In view of the ultimate disposition of this appeal on another ground, it will serve no purpose to detail all of the defendant's testimony concerning his claimed mental impairment. Condensed to ultimate fact, he claims his 'emotional tranquility' was 'disturbed.' No medical evidence was offered except that Macy's produced in evidence a report by Bell's treating physician which did not attribute the mental difficulties to the actions of Macy's. Bell, in fact, claimed that his mental state was caused only in part by Macy's actions. Macy's put in evidence that Bell had sued Standard Oil for $95,000, Duff and Repp for $130,000 GMAC for $200,000, and the Plaza Bank & Trust Company for $2,400,000, all such suits being an outgrowth of creditor-debtor relation-ships, and all but the last suit being counterclaims asserting telephonic 'harassment' in the collection of debts. Bell unequivocally related his mental state to all these actions as well as some controversy with a veterinarian over the death of a dog.

Appellant's brief does not comply with the fundamentals of brief writing as required by the rules. The statement of facts is both meager and misleading. On the basis of the appellant's brief, it would be possible to deny relief for failure to comply with the rules. Appellant's counsel, who served at the trial as well as here, has suffered that fate on a variety of appeals in this court and continues the same faults. In this instance, however, the claims of error in the points of the brief are sufficiently stated that the basis for the appellant's claims appear. By resorting to the trial transcript, the general tenor of the trial appears, and some...