Rosendale v. Market Square Dry Goods Co.

• Decision Date: 26 May 1919
• Docket Number: No. 13263.,13263.
• Citation: 213 S.W. 169
• Parties: ROSENDALE v. MARKET SQUARE DRY GOODS CO. et al.
• Court: Missouri Court of Appeals

213 S.W. 169

ROSENDALE v. MARKET SQUARE DRY GOODS CO. et al.

No. 13263.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by Ralph E. Rosendale against the Market Square Dry Goods Company and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Wm. C. Forsee, of Kansas City, for appellant.

I. J. Ringolsky, M. L. Friedman, and Ringolsky & Friedman, all of Kansas City, for respondents.

TRIMBLE, J.

Plaintiff brought his action In two counts, the first for false imprisonment, the second for malicious prosecution. At the conclusion of his side of the case, the court, on motion of the defendants, required him to elect. After objecting and saving his exceptions, he elected to stand on the count for malicious prosecution. Thereupon the defendants demurred to the evidence, and were sustained. Plaintiff took an involuntary nonsuit, with leave to move to set the same aside. Upon the overruling of this last-named motion, plaintiff appealed.

The defendant Market Square Dry Goods Company is a corporation engaged in the retail business its name indicates, and, at the time of the events herein mentioned and for some time thereafter, the defendant James Duvall was its president in active management of its affairs.

Saturday evening July 18, 1914, one of the salesladies in the store, Mrs. Ferris, in making change for a man customer, gave him by mistake $10 too much, or "short-changed" herself to that extent. Later on in the evening plaintiff passed on the sidewalk in front of the store, and Mrs. Ferris saw him and told the president, Mr. Duvall, that he was the man who had obtained the $10.

According to plaintiff's evidence, he had not been in the store at all, but had quit his work, received his pay, gone to his room, cleaned up, and was returning from his supper going past the store when he noticed that a lady standing in the door stared very hard and looked at him in a peculiar way. He passed on, however, and shortly thereafter he was over-taken by Duvall. The plaintiff's version is that Duvall grabbed him by both shoulders, turned him around, and said, "Wait a minute; my clerk said you short-changed her back in the store." To plaintiff's question, Duvall replied, "Never mind, come back, and we will fix it up." Plaintiff went with him till they got in front of a theater, where they met the lady who had given him such a stare and peculiar look. It was Mrs. Ferris, the saleslady. She said to Duvall, "That is the fellow." Plaintiff says he told Duvall the girl was absolutely mistaken; that he had worked in that part of town for some time, and didn't have to make his living that way, and as they passed the store of a man who knew and could identify him, he told Duvall this and started into the store, but Duvall said, "Never mind, we will take care of this." They then went on back to defendant's store, where plaintiff was taken into the office, and Duvall told him that he (Duvall) was not in there at the time the young lady was shortchanged, and he did not know whether plaintiff was the man or not, but that she claimed he was; and, as he (Duvall) didn't like to lose the $10 and she was so positive he was the man, the best thing plaintiff could do would be to give up the money or he would call a policeman. Plaintiff told him he certainly would not give up money he had not gotten, and asked permission to telephone, saying any of the neighbors could tell Duvall who he was. To this Duvall replied, "You can give up the $10 or I will call the police." Plaintiff said that he would then have to call the police, as he was not going to give up something he didn't get. Thereupon a policeman was called, and. Officer Spillane came over. After some conversation, in which plaintiff was endeavoring to establish his identity, the policeman finally recognized him as having been at work in the neighborhood, but said that did not establish anything as to whether plaintiff took the money or not. Thereupon Duvall said to the officer, expect you had better take him over," meaning to the police station. The policeman said, "All right; you had better send some one over to put a charge against him." Duvall then called the young lady, Mrs. Ferris, and told her to go to the police station which she did. They appeared before the captain in charge, and the young lady related the story of the short-changing, how it was done, and charged plaintiff with being the man. Plaintiff says that as soon as she made her statement he was booked for "investigation" and locked up till Monday morning, at which time he was taken by Officer Spillane before the prosecuting attorney, where Mrs. Ferris made a formal charge. Plaintiff gave bond for his appearance before the justice of the peace, and on the day of trial was discharged.

Officer Spillane, witness for plaintiff, testified that he had known plaintiff as working near the Market for several years, but did not know him by name; that after plaintiff had endeavored to be identified by him and the officer had said he had seen him working about the Market, but that that did not have anything to do with the question of whether he took the money, the young lady made her charge against plaintiff, and Spillane asked Duvall what the latter wanted done with plaintiff. Duvall said he wanted plaintiff arrested. Spillane then told Duvall he would have to send some one over to the station, and he sent Mrs. Ferris. When they arrived there the officer explained the situation to the captain, Mrs. Ferris made her charge, and the captain ordered plaintiff locked up till Monday morning. When that time came, Spillane took plaintiff before the prosecuting attorney. Mrs. Ferris was there having been told by the officer to be present. The officer told the situation to the prosecutor, and Mrs. Ferris did also. The plaintiff was asked about it, but denied the charge, saying it was a case of mistaken identity. The prosecutor prepared the papers, and Mrs. Ferris went before the justice, to whom the case was sent, and swore to the complaint. Afterwards a trial was had before the justice, and the plaintiff was discharged.

Appellant makes two complaints: (1) That he should not have been required to elect. (2) That defendants were not entitled to have the case taken from the jury.

The court did right in requiring the plaintiff to elect. False imprisonment and malicious prosecution, growing out of or based upon the same transaction or set of facts, are two different causes of action for the same wrong. While they are such as may be joined under separate counts in the same petition, so that...