S. H. Kress & Co. v. Lindley

• Decision Date: 14 January 1932
• Docket Number: No. 2619.,2619.
• Citation: 46 S.W.2d 379
• Parties: S. H. KRESS & CO. v. LINDLEY et al.
• Court: Texas Court of Appeals

46 S.W.2d 379

S. H. KRESS & CO. v. LINDLEY et al.

No. 2619.

Court of Civil Appeals of Texas. El Paso.

January 14, 1932.

Error from District Court, Harris County; Ewing Boyd, Judge.

Action by Mrs. J. T. Lindley and husband against S. H. Kress & Company. From judgment for plaintiffs, defendant brings error.

Reversed and remanded.

Stewart & De Lange, Albert J. De Lange, Andrews, Streetman, Logue & Mobley, and Robert F. Campbell, all of Houston, for plaintiff in error.

Lewis Wood, Kenneth Krahl, and Lewis Fisher, all of Houston, for defendants in error.

HIGGINS, J.

This is a suit by Mrs. Lindley and her husband to recover damages for alleged slander, assault, and false imprisonment.

Briefly stated, the evidence in behalf of the plaintiffs is to the following effect:

At about 1:30 p. m. on October 22, 1928, Mrs. Lindley, accompanied by a Mrs. Parks, entered the Kress & Company store in Houston. Mrs. Lindley there purchased a paper shopping bag, which she delivered to Mrs. Parks. They then went to several of the counters in the store. Their conduct aroused the suspicion of Mrs. Johnson, an employee of the defendant. She communicated with Mr. Harlan, a floorwalker, and Miss Lee, a sales lady of the defendant. These employees kept the pair under observation, and it was discovered that Mrs. Parks was stealing articles from the counters and dropping them in the bag. According to the testimony of defendant's witnesses, Mrs. Lindley was seen to take a paint brush from one of the counters, pass it to Mrs. Parks, who slipped it in the bag. With reference to what then happened Mrs. Lindley testified:

"As I was standing at the gum counter opening my purse to buy a package of gum the floorwalker came up and caught me by the arm and gave me a hard jerk and says `Wait a minute, you are not getting out of this building.' And he says, `Are you with this woman in the brown dress?' The woman in the brown dress was then back at the incense counter about fifteen feet from where I was standing. * * * That man said to me `Wait a minute, you are not getting out of this building. Are you with this woman in the brown dress?' I said yes, and he jerked me back and forth a time or two and he says `You have stolen as much of this stuff as she has.' I asked him what his idea was in jerking me like that, and he says, `That is all right, you have stolen as much of this stuff as she has.' He was jerking me around very rough and I asked him to turn me loose. By that time this sales girl had brought Mrs. Parks up to where we were standing. This sales girl said `Watch her, she has stolen as much as she has.' Then Mrs. Parks spoke to me and said, `Mrs. Lindley, can I borrow fifty cents from you?' I told her yes, and I opened my purse and started to hand Mrs. Parks the fifty cents and this floor-walker grabbed me by the arm and jerked me very roughly, and I caught hold of the counter to keep from falling, and I lost my fifty cents. When the floor-walker jerked me he said `You are not going to give her that fifty cents. You are going along with her, you have stolen as much as she has.' Mrs. Parks spoke up and says `Please don't jerk her like that, she knows nothing about what I have put in this bag.' After Mrs. Parks made that remark Mr. Harlan said I was going right along with her `you have stolen as much as she has.' At that time the sales girl stepped up and said `She has stolen as much as she has.' That gentleman, Mr. Harlan, was talking in a loud and angry tone of voice. There was lots of people in the store at that time besides the floorwalker, the sales girl, Mrs. Parks and I at that time. Those people were scattered around over the store until the floorwalker began to jerk me like that, and when he began to jerk me and I was pulling and trying to get loose, not knowing what had happened a crowd of people gathered around to see what was taking place. * * *

"When the floorwalker said `You are not going to give her the fifty cents, you are going right along with her, you have stolen as much as she has,' the salesgirl spoke up and asked him where to take them, and the floorwalker said to take them up stairs. They brought Mrs. Parks over to where I was standing, and the salesgirl caught me by the arm and says `You are going right along, you have stolen as much as she has;' and she caught me by the arm until we got to the foot of the stairs and we started up stairs."

The witness then details the treatment to which she was subjected in the room upstairs to which she was taken.

Briefly stated, it was to the effect that she was unwillingly detained there four or five hours, refused access to a telephone, accused of theft, threatened with being "slammed in jail" if she did not confess that she was a party to the theft of certain stolen articles found in the bag carried by Mrs. Parks. After she and Mrs. Parks had been in the room a short time, the house detective was called by Harlan. Suffice it to say that according to Mrs. Lindley's version she was subjected to "third degree" tactics for several hours by Harlan and the house detective in an effort to extort from her a confession of theft.

Her testimony is fully corroborated by Mrs. Parks, who assumed sole responsibility for the theft of the articles found in the bag carried by her. Her testimony completely exonerated Mrs. Lindley from any connection with the theft.

All issues submitted were found in defendants in error's favor. Actual and exemplary damages were assessed in the sums of $10,000 and $2,500, respectively, and judgment therefor rendered.

Mr. Kenneth Krahl, one of plaintiff's attorneys, in the opening argument to the jury stated: "There is nothing in the world that a floorwalker likes to do better than catch a thief; that is their business; that is what they are there for; that is what they like to do; the day's business is not complete unless they catch somebody stealing. You gentlemen have seen floorwalkers; they are suspicious of everybody that comes into the store, your wife, my wife and everybody else's. That is the natural manner of a floorwalker."

This argument is not justified by anything in the record. It was improper, inflammatory, and calculated to arouse the indignation of the jury. With reference thereto, what was said by Chief Justice Fly in Vogt v. Guidry (Tex. Civ. App.) 229 S. W. 656, 658, a slander case, is applicable. Judge Fly said:

"The argument of counsel for appellee was of the most inflammatory nature and calculated to arouse the most intense passion and indignation of the jury towards appellant. Much of it is not based upon the facts disclosed in the statement of facts, and is abusive of appellant and of a man who was not a witness in the case, and was abused because he did...