Sestrich v. R. H. Macy & Co., Inc.

• Citation: 493 S.W.2d 52
• Decision Date: 05 March 1973
• Docket Number: No. 25964,25964
• Parties: Georgette SESTRICH, Plaintiff-Respondent, v. R. H. MACY & CO., INC., Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 52

493 S.W.2d 52

Georgette SESTRICH, Plaintiff-Respondent, v. R. H. MACY & CO., INC., Defendant-Appellant.

No. 25964.

Missouri Court of Appeals, Kansas City District.

March 5, 1973.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 2, 1973.

Don B. Roberson, Kansas City, for defendant-appellant; Shughart, Thomson & Kilroy, Kansas City, of counsel.

Donald L. Mason and George G. Allen, Jr., Kansas City, for plaintiff-respondent; Sheridan, Sanders, Carr, White & Mason, Kansas City, of counsel.

Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and ROBERT RUSSELL, Special Judge.

WASSERSTROM, Judge.

Defendant R. H. Macy & Co., Inc., appeals from a judgment against it for malicious prosecution, under which plaintiff (respondent here) was awarded $10,000.00 actual damages and $7,000.00 punitive damages. Plaintiff's claim for malicious prosecution relates to charges of shoplifting made against her by defendant and the prosecution which followed under the Ordinances of Kansas City, Missouri.

The basic facts are as follows. On July 12, 1969, plaintiff was engaged in shopping at one of defendant's stores. She looked at baby clothes as a possible gift, but preferred to rummage through the merchandise herself and declined the offer of help from the sales clerk, Allison Zorn. This declination of help made Zorn suspicious and she called the protection officer Thomas Kogut to alert him. Kogut then came to the baby clothing area to keep plaintiff under surveillance. He testified, by deposition introduced at trial, that he saw plaintiff secrete a two-piece baby outfit in a Harzfeld box being carried by the plaintiff. Plaintiff's testimony was that she had taken the two-piece outfit and also a sleeper outfit from their regular place and had placed them among other merchandise so that they would be hard for any other shopper to find, the reason being that plaintiff thought she might want to come back to buy one of these items for her gift.

When plaintiff left the Macy baby department, Kogut walked over to Zorn, who told him that she was missing the two items mentioned. Kogut then proceeded to follow plaintiff out of the store and to the Sears store which plaintiff next entered. Kogut secured permission from the Sears security officers to stop plaintiff for questioning and Kogut, together with certain Sears employees, took her to a Sears security office for that purpose. Kogut challenged plaintiff with having Macy merchandise in the Harzfeld bag that she was carrying, which plaintiff denied. Kogut then demanded to be shown what was in the box. Plaintiff refused this permission and stated that Kogut could not see the contents unless she were placed under arrest.

Kogut answered that challenge by calling the police who did advise plaintiff that she was under arrest. Thereupon, plaintiff opened the Harzfeld box, took out the contents, and it was shown that she did not have any of the Macy merchandise which Kogut had said he saw plaintiff put therein. Nevertheless, plaintiff was taken to the police station, charged and booked.

The case was heard before the Municipal Court of Kansas City, Missouri, and plaintiff was found guilty. She appealed, and on trial de novo in the circuit court she was acquitted. This suit for malicious prosecution followed.

On this appeal, defendant urges the following points: (1) that a verdict should have been directed in its favor on the ground that probable cause was conclusively shown by the police court conviction; (2) that the verdict-directing instruction was erroneous; (3) that certain forms of employment application and questions in connection therewith were erroneously admitted into evidence; and (4) that plaintiff's counsel was guilty of prejudicial error in closing argument. Of these, point 2 cannot be considered because defendant has failed to set forth the questioned instruction in the argument portion of its brief, as required by Rule 84.04(e) V.A.M.R. This, however, is of little moment since the argument under defendant's points 1 and 2 are substantially the same and the substance of the entire argument will be considered in connection with point of error number 1.

I

In order to recover for malicious prosecution, plaintiff must prove that the prosecution against her was without probable cause by defendant to believe that she had been guilty of shoplifting. Ordinarily, if the person charged has been convicted by a court of the charge made, that conviction will serve to prove conclusively the existence of probable cause, even though the conviction be later reversed upon appeal. This is the rule which is relied upon by the defendant in the present case and upon which it asks for a reversal.

The trouble with this argument is that under existing Missouri law an exception is made to the rule stated, where the conviction was obtained in a police court. In these circumstances, the rule adopted by the Missouri Supreme Court is that the acquittal upon appeal overcomes the prima facie showing of probable cause arising from the police court conviction, and thereupon the issue of probable cause becomes one of fact for the jury upon all the evidence in the case. Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68; Randol v. Kline's, Inc., 322 Mo. 746, 18 S.W.2d 500, and opinion on second appeal, 330 Mo. 343, 49 S.W.2d 112; O'Donnell v. Chase Hotel, Inc., Mo.App., 388 S.W.2d 489.

Defendant specifically acknowledges in its brief that the O'Donnell opinion is directly opposed to the argument which it now makes. Notwithstanding that opinion and the cases upon which it relies, defendant nevertheless contends for a different result here 'on the particular facts of this case'. However, it does not state just what those 'particular facts' are.

What defendant is really arguing for is a reconsideration and reversal of the rule under discussion. This contention by defendant is entitled to sympathetic attention. The rationale of the Missouri rule has never been made quite clear, and it has had a checkered career. See for example the discussion of the Missouri rule in the annotation 'Conclusiveness, as evidence of probable cause in malicious prosecution action, of conviction as affected by the fact that it was reversed or set aside', 86 A.L.R.2d 1090. The logic of the Missouri rule was challenged from the very outset by the forceful dissent of two judges in the Hanser case; and the ruling of that case was later disapproved or at least seriously questioned in Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961, l.c. 963, although later readopted by the two Randol decisions. Insofar as the Missouri rule is based upon the concept that the reversal on appeal wipes out the initial conviction as if it has never happened, the logical difficulties of so ruling in the case of a police court conviction but not in the case of a magistrate court conviction (both being reviewed on appeal de novo), was also remarked by the O'Donnell opinion. 388 S.W.2d 489, l.c. 494. It must also be observed that the Missouri rule appears to be in opposition to the rule of Restatement, Torts, § 667, that section being a portion of the discussion designated as 'An excellent exposition of the subject' in the committee's comment to M.A.I. 23.07.

The more appealing justification of the Missouri rule in question is the criticism of police courts by Judge Walker in his Hanser opinion, where he described proceedings in those courts as 'hurried and perfunctory' and where he criticizes the procedures as not requiring arraignment or plea and lacking in any guarantee for trial by jury. To some considerable extent those criticisms have been eliminated by the adoption in 1960 of Rule 37 V.A.M.R., which now governs the practice and procedure of all cases in all municipal courts of this State. The criticisms in question have even less continuing validity in the municipal courts of Kansas City, due to the very important and salutary changes which have come about by reason of Article XIII of the Kansas City Charter. Attention must also be given to fundamental changes in procedure occasioned by recent decisions of the United States Supreme Court, including the guarantee of jury trial in cases where the potential imprisonment may exceed six months (Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437) and the guarantee of right of counsel in any case where the defendant is sentenced to any imprisonment whatsoever (Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530).

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