Schwane v. Kroger Co.

• Decision Date: 24 April 1972
• Docket Number: No. 25229,25229
• Parties: Ronald SCHWANE, Respondent, v. The KROGER COMPANY, Inc., Appellant.
• Court: Missouri Court of Appeals

Page 113

480 S.W.2d 113

Ronald SCHWANE, Respondent, v. The KROGER COMPANY, Inc., Appellant.

No. 25229.

Missouri Court of Appeals, Kansas City District.

April 24, 1972.

Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellant.

Lawrence F. Gepford and R. Bruce Sears, Kansas City, for respondent.

PER CURIAM.

Upon Count I for false arrest (or false imprisonment) the jury returned a verdict for plaintiff for $375.00 actual damages and $1,750.00 punitive damages. Upon Count II for malicious prosecution, the jury's verdict was for $450.00 actual and $2,500.00 punitive damages.

Seeking reversal of the judgment, defendant asserts error in three instructions; that the court erred in failing to require plaintiff to elect between his counts for false arrest and malicious prosecution, and in submitting both counts to the jury; and error was committed in permitting plaintiff to answer a 'hypothetical' question that if he made application for a job how would he answer the question 'Have you ever been arrested?'. It is also contended that Section 537.125, RSMo., 1969, V.A.M.S., creating a presumption of intent to commit a wrongful taking of unpurchased merchandise by any person concealing it upon his person removes the issue of 'want of probable cause' as an element of malicious prosecution, and therefore plaintiff had no cause of action on that count. It is argued that plaintiff's restraint in defendant's store was reasonable as a matter of law; that there was no reasonable relation between the awards of actual and punitive damages on Counts I and II; the court erred in refusing to allow evidence of defendant's state of mind concerning the incident in question; and that there was insufficient evidence to allow the issue of punitive damages to go to the jury.

As to the arrest, plaintiff pleaded, '2. That on or about January 3, 1967, while the plaintiff was a customer and business invitee of the defendant at its grocery store located at 54th and Troost, Kansas City, Jackson County, Missouri, the defendant, through its agents, servants, and employees, acting within the course and scope of their employment, maliciously and with intent to injure the plaintiff did compel the arrest of the plaintiff and did thereafter cause the confinement of the plaintiff in the City Jail of the City of Kansas City, Missouri, and said arrest and confinement was unreasonable and without just cause or excuse and did cause the plaintiff to be restrained of his liberty without right or authority to so do and against the will of the plaintiff.'

Plaintiff testified that he was 21 years old, a resident of O'Fallon, Missouri, and was a fourth year student at Rockhurst College in Kansas City, residing at 1321 Rockhurst Road. Before the occasion in question, plaintiff had never been arrested. On January 3, 1967, plaintiff and two of his friends had lunch in the school cafeteria and thereafter the three decided to go shopping. They went to the Kroger store at 54th and Troost where plaintiff's two companions got a shopping cart and proceeded to the cosmetic counter where they purchased what they came for.

Plaintiff then went to the back of the store looking for type 'D' and 'C' batteries for his tape recorder and radio. These batteries were the size of regular flashlight batteries, but the 'C' was a little bit smaller. He held the batteries four in each hand, and the batteries were all that he was going to purchase. As the three were going to the front of the store to go out they noticed a magazine rack. Plaintiff saw a magazine he wanted to look at, and having his hands full of batteries, he transferred two of them to his left hand, 'and nonchalantly put two of them in my pocket and started to read the magazine, started to pick it up, the magazine, and Mr. Cochran approached me.' The magazine stand was about 15 feet from the check-out stands. 'Q. What happened? A. Mr. Cochran approached me from behind and grabbed me, and asked me, 'What are you doing, and what have you got in your pocket?' or something to that effect.' Mr. Cochran asked plaintiff to come over with him to the office, and plaintiff went with him. He again asked what plaintiff had in his pocket, and plaintiff said he had the two batteries and pulled them out. The other six batteries were still in plaintiff's other hand. Mr. Cochran accused plaintiff of stealing the batteries, saying "What were you going to do with them, you were going to steal them?", and then Mr. Cochran proceeded to call the police and called an employee, Terry Kopp, to the stand (office?) to guard plaintiff, which was done while Mr. Cochran called the police. Officer Washington then came and plaintiff told him the same story as he had told Mr. Cochran. Another officer came and the two took plaintiff to the Dean's office at Rockhurst College where they met with Father Cahill.

It was then decided that the prosecution for shoplifting would proceed, and plaintiff was taken to the Sixty-third Street Police Station by Officer Washington. They did not remain there very long and plaintiff was taken to the downtown station jail headquarters. There plaintiff's wallet and contents of his pockets were taken and put away and he was fingerprinted and his picture was taken. Plaintiff was not placed in a cell, but was permitted to remain in the office area. Bail was set at $25.00, which plaintiff did not have. He called his friends at the school and in three or four hours, they came and posted the bail.

Plaintiff testified that when he was in the Kroger store he did not intend to steal anything, including the batteries, and he had the money to pay for them. Plaintiff was supposed to go to court the next day, but he called his father who told him to ask for a continuance, which was granted for two weeks. On January 19, 1967, plaintiff appeared with counsel in Municipal Court, and at the close of Mr. Cochran's testimony, for the Kroger Company, plaintiff was acquitted. Plaintiff deposited $100.00 for attorney fees, but still owed some.

The graduation of plaintiff from college was to be June 1, 1969. He was majoring in accounting and hoped to become a Certified Public Accountant. This question was asked him: 'Q. If you were to make an application for a company, to work for a company, Ronald, and the question is asked, 'Have you ever been arrested?' What is your opinion as to how you should answer that? MR. SHAPIRO: I object to that question, Your Honor. It is hypothetical and I don't think that he should give his opinion about what he might have to answer in a year or so.' After colloquy, the ground of the objection was expanded to include that there was no proper foundation laid for the question, and that 'It is all speculation and all hypothetical.' The objection was overruled, and plaintiff was permitted to answer 'A. I will have to answer 'Yes'.'

For defendant Sergeant Ron Ehrhardt of the Kansas City Police Department met Mr. Cochran and Officer Washington at the Kroger store in regard to a call about shoplifting. Mr. Cochran was then undecided as to whether he wanted to prosecute plaintiff. They all went over to see Father Cahill at Rockhurst College, where plaintiff told Father Cahill the story that he wanted to read a magazine in the store, and in plaintiff's presence Father Cahill said, 'You don't have too good of a story, son' and that he thought the only way to stop thefts in the area was to prosecute plaintiff, 'You have a theft case and go ahead and take the boy down and prosecute him.'

Mr. Virgil Cochran was manager at the Kroger Store. When he observed plaintiff and his two companions in the store and at the drug rack he went to the back of the store where there was a two-way mirror. He saw plaintiff remove some batteries from the battery rack, and as plaintiff moved up the candy aisle 'he put four batteries in his side pocket on his coat and two more over here (indicating).' At the magazine rack plaintiff put the last two batteries in his pocket. Mr. Cochran did not see a magazine or plaintiff reaching for one. Mr. Cochran then asked plaintiff to step over to the office, that he wanted to talk to him, and 'He started over there and we got about 15 feet, and he was getting quite a little ways ahead of me, and I got him by the coat pocket. Q. Why did you do that? A. I had good reason to believe that he was going to get away from me.' At the office, Mr. Cochran asked plaintiff to take the batteries out of his pocket, which he did, and plaintiff told him that he put the batteries in his pocket so he could read a magazine. During the time Mr. Cochran was calling the police, he had employee Terry Kopp stay with plaintiff.

The judgment must be reversed and the case remanded for new trial because of error in overruling the objection to the above hypothetical question put to plaintiff which was answered by him. There was no proof from any source that it was the custom and practice of prospective employers to ask applicants for employment if they had arrest records, and implicit in the question was the improper assumption of that fact. Hollenbeck v. Missouri Pac. Ry. Co., 141 Mo. 97, 104, 38 S.W. 723, 725, 'It may be conceded that a question based upon the assumption that a certain fact has been proven, when it has not been, is improper.' See also Bonslett v. New York Life Ins. Co., Mo., 190 S.W. 870, 874; 98 C.J.S. Witnesses § 341c, p. 53. The matter of any custom or practice of employers to ask prospective employees as to any arrest records is not so notorious that it may be judicially known as a matter of common knowledge, as plaintiff suggests. See Wigmore on Evidence, Third Ed., Sec. 2571, p. 543; and Endicott v. St....