Rothschild v. Drake Hotel, Inc., 16324

• Decision Date: 03 June 1968
• Docket Number: 16325.,No. 16324,16324
• Citation: 397 F.2d 419
• Parties: Hardie ROTHSCHILD, Plaintiff-Appellee and Cross-Appellant, v. The DRAKE HOTEL, INC., a corporation, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.2d 419 (1968)

Hardie ROTHSCHILD, Plaintiff-Appellee and Cross-Appellant, v. The DRAKE HOTEL, INC., a corporation, Defendant-Appellant and Cross-Appellee.

Nos. 16324, 16325.

United States Court of Appeals Seventh Circuit.

June 3, 1968.

Eugene F. Welter, Chicago, Ill., Fred J. Freel, Stephen B. Millin, Kansas City, Mo., Matthew L. Salita, Chicago, Ill., for Hardie Rothschild, Sheridan, Sanders, Millin, Peters, Carr & Sharp, Kansas City, Mo., of counsel.

Jerome H. Torschen, Leo J. Doyle, Jr., Chicago, Ill., for Drake Hotel, Inc.

Before MAJOR, Senior Circuit Judge, and SCHNACKENBERG and KILEY, Circuit Judges.

MAJOR, Senior Circuit Judge.

This diversity action was commenced August 26, 1966, for the recovery of compensatory and punitive damages for false imprisonment, assault and malicious prosecution occasioned by the alleged wrongful and malicious acts of the Drake Hotel on August 6, 1965, in assaulting, imprisoning and prosecuting plaintiff for defrauding an innkeeper. A jury returned a general verdict in favor of plaintiff, awarding damages in the amount of $400,000. The trial court, in response to defendant's motion for judgment n. o. v. or for a new trial, gave plaintiff an election between filing a remittitur reducing the award to $75,000, or a new trial. Plaintiff filed a remittitur under protest, reserving the right to appeal, following which the trial court, on May 7, 1967, reduced the jury award to $75,000, entered judgment in favor of plaintiff for that amount and otherwise overruled defendant's motion.

Both parties appeal. Defendant seeks reversal on the ground that the court erred in denying its motion for a judgment n. o. v. or, in the alternative, in denying a new trial. Plaintiff, in what is characterized as a cross-appeal, contends that the court arbitrarily abused its discretion in directing the remittitur, that the judgment entered pursuant thereto should be set aside, and that the trial court be directed to enter a judgment in her favor in the amount of the jury award.

While plaintiff alleged three separate causes of action in her complaint, the case is presented here as one for malicious prosecution, and we shall so treat it.

It is significant to note in the beginning that while the trial was lengthy, resulting in a voluminous record, no error is assigned relative to the admission of testimony or to the court's instructions to the jury; in fact, the issues argued here present in the main questions of law. The only exception to this statement is defendant's contention that the extraordinarily large verdict was caused by the repeated references by plaintiff's counsel to her acquittal in the criminal proceeding instituted against her by Drake. Otherwise, the thrust of defendant's attack is directed at the court's denial of its motion for a directed verdict and the court's refusal to enter a judgment n. o. v. in its favor or, in the alternative, to grant a new trial.

Plaintiff's main contention is that the court "arbitrarily abused its discretion in directing a remittitur," and in its refusal to enter a judgment in her favor in accordance with the jury verdict.

Both parties on brief, particularly plaintiff, favor us with a lengthy and detailed statement of the alleged facts. It appears to us that defendant's statement, as well as its argument, proceeds on the basis of evidence most favorable to it, thereby ignoring the well established rule that on appeal this court must accept as true the facts which plaintiff's evidence tends to prove and draw against defendant on its motion for directed verdict all reasonable inferences favorable to plaintiff. Brandt v. Pennsylvania R. Co. (CA 7), 231 F.2d 848, 851, 57 A.L.R.2d 1078 and Stueber et al. v. Admiral Corp. (CA 7), 171 F.2d 777, 779.

Plaintiff, a resident of Kansas City, Missouri, with three minor children, was separated from her husband and engaged in a controversy with him as to their custody. During the latter part of July 1965, she planned a vacation with her 9-year-old daughter, Jane, which was to include a visit to Chicago at the Drake Hotel and a boat trip on the Great Lakes from Duluth, Minnesota, to Buffalo, New York, and return. Reservations for the boat trip and at the Drake Hotel were made by the Automobile Club of Kansas City.

On Saturday, July 31, 1965, steamship tickets were mailed to plaintiff at the Drake Hotel. On Sunday afternoon, August 1, plaintiff and her daughter, Jane, pursuant to the reservation which had been made for her, registered at the hotel. She informed the room clerk at the time of registration that she would leave the hotel around 7 p. m. Tuesday, August 3. At that time and subsequently, she inquired as to the steamship tickets, but for some unexplained reason they were never received and she cancelled her plans for the boat trip.

The testimony as to the happenings on Wednesday, Thursday and Friday is in much dispute and plaintiff's case rests chiefly upon her testimony, corroborated to some extent by her daughter. Plaintiff testified that after she decided to cancel the boat trip, she extended her stay at the Drake until the end of the week and was assured by a clerk that defendant would be happy to have her remain. In fact, she testified that on Thursday afternoon arrangements were made, at the suggestion of defendant's desk personnel, for her to move to another room on Friday. Defendant's credit manager testified that on August 5 (Thursday), he put a statement of itemized charges in an envelope and gave it to a bell man for delivery to plaintiff's room. On the following day, not having heard from her, he sent a second note to plaintiff's room, advising her that bills were due on presentation. The credit manager admitted that he did not regard the notes to plaintiff as demands for immediate payment but as a "subtle way of asking the guest to contact me or to pay."

On Friday morning, plaintiff, in response to the notes from the credit manager, composed two statements and placed them in separate envelopes.¹ She took the first statement to the front desk and the second to the credit manager, who after reading it asked plaintiff to be seated so that they might discuss her bill. This she refused to do, and abruptly left. The strange and unresponsive nature of the notes written by plaintiff and the attitude which she displayed toward the credit manager are material because they in the main furnished the basis for the controversy which took place shortly thereafter.

The incident just related was reported by the credit manager to a Mr. Hughes, the hotel security officer, and from then on most of the controversy which culminated in plaintiff's arrest was between her and Hughes. Because of the death of Hughes, the hotel was deprived of his version of what took place.

Plaintiff testified that in response to a telephone call from Hughes she met him on the seventh floor and that he informed her she had 20 minutes to leave the hotel. He followed her into her room, where he remained for about two hours and continued to insist that she leave the hotel immediately. During that time the credit manager entered the room, closed the door and stood in the entry way in front of the door so that plaintiff could not leave the room. Hughes would not permit plaintiff to call her lawyer and grabbed the phone from her hand. Plaintiff and her daughter finally got out of the room, and Hughes then told her she could have all afternoon to pack and leave. When plaintiff attempted to use the elevator, the operator was instructed by Hughes not to move it.

Hughes left plaintiff and her daughter in custody of another person but soon returned, accompanied by two police officers. While plaintiff testified that she was never requested to pay her bill, the two officers, the credit manager and several other employees of Drake testified that she was asked to pay her bill, if only to avoid the embarrassment of arrest. The evidence is not in dispute that plaintiff took the position that her bill could be paid from the refund she expected from her cancelled boat trip or at the expiration of her stay, which she testified had been extended by the hotel to the end of the week.

Upon plaintiff's refusal to pay or to make any arrangements therefor, the police officers at the request of Hughes and on his promise to sign a complaint placed plaintiff under arrest, without a warrant. She and her daughter were taken by the officers to a police station, where she was turned over to Officer Anderson for interrogation. Shortly thereafter, Hughes appeared and signed a complaint charging her with defrauding an innkeeper in violation of Chap. 71, Sec. 4a, Illinois Revised Statutes. Anderson testified as a plaintiff's witness that she was arrested for failure to pay a hotel bill and that he told her the amount. She again insisted that the amount of the bill could be deducted from the refund she expected from the cancelled boat tickets. While she was in custody, the daughter was returned to the father in Kansas City.

Plaintiff was first taken to the Women's Lockup, and on Saturday to the Cook County Jail. On Saturday morning she was taken to the Criminal Court, where the case against her was called but continued at the request of the Drake because of the illness of Hughes. She was returned to the County Jail and confined until released on Monday evening, when an aunt furnished bond. We think it unnecessary to relate the sordid story told by plaintiff as to the mistreatment which she received during her period of commitment.

On September 30, 1965, plaintiff came to Chicago to defend herself against the criminal charge, bringing her counsel from Kansas City. After a bench trial during which witnesses for the Drake, including Hughes, testified, the court found plaintiff not guilty. After her discharge, plaintiff applied directly to the steamship company for a refund for her cruise tickets, which was allowed. Also after her discharge, she paid her...