Smith v. Allied Supermarkets, Inc.

• Decision Date: 09 June 1975
• Docket Number: No. 58834,58834
• Citation: 524 S.W.2d 848
• Parties: William Marion SMITH, Appellant, v. ALLIED SUPERMARKETS, INC., and William May, Respondents.
• Court: Missouri Supreme Court

Page 848

524 S.W.2d 848

William Marion SMITH, Appellant, v. ALLIED SUPERMARKETS, INC., and William May, Respondents.

No. 58834.

Supreme Court of Missouri, En Banc.

June 9, 1975.

Rehearing Denied July 14, 1975.

Niedner, Moerschel, Nack & Ahlheim, Edward C. Ahlheim, St. Charles, for plaintiff-appellant.

James E. Godfrey, Inc., James E. Godfrey, Samuel T. Vandover, St. Louis, for respondents.

BARDGETT, Judge.

In this false arrest case, plaintiff-appellant obtained a circuit court jury verdict in the sum of $1600 actual and $2000 punitive damages. The trial court set aside the verdict and entered judgment for defendants-respondents on the ground that plaintiff failed to make a submissible case. The issue of whether plaintiff made a submissible case turns principally on whether or not there was sufficient evidence from which a jury could find that defendants directed countenanced, advised, encouraged, or instigated the arrest.

Plaintiff appealed to the Missouri Court of Appeals, St. Louis District, where the cause was heard by three judges in division one of that court. The trial judge's action in entering judgment for defendants was affirmed by the court of appeals with one judge dissenting. The application of plaintiff to transfer to this court after opinion pursuant to Rule 83.03 was sustained, the appeal transferred, and will be decided as on original appeal.

In deciding whether a plaintiff has made a submissible case, the evidence must be viewed in a light most favorable to the plaintiff giving him the benefit of all inferences which may be reasonably drawn from the evidence in support of his cause of action. Eyler v. Allison, 500 S.W.2d 49 (Mo.App.1973); Chard v. Clarkson Const. Co., 377 S.W.2d 506 (Mo.App.1964).

At the outset it should be noted that it is undisputed that plaintiff was a victim of a false arrest in that he did not write the bogus check which was cashed by defendant Supermarket and for which he was arrested.

Plaintiff was arrested at his home in St. Charles, Missouri, about 11:00 p.m., on October 27, 1970, by the St. Charles police who told plaintiff they had a pickup order on him and was taken to police headquarters in that city. He was then taken into custody by two city of Bridgeton police officers, handcuffed, and transported to the Bridgeton police headquarters in St. Louis County. He was detained there until about 4:00 a.m. the following morning. While at the Bridgeton police headquarters, he was booked, fingerprinted, and photographed. He was told he was to be charged with writing a bogus check. He was interrogated and gave samples of his handwriting. It was finally determined that he was innocent and was released without charges being filed.

Chronologically, the events and circumstances which preceded and bore upon plaintiff's arrest are as follows:

In January 1969, plaintiff and his wife Julia E. Smith applied for check cashing identification cards at defendant Allied Supermarket (K-Mart) in Bridgeton, Missouri. The application shows plaintiff's name as William Marion Smith and his signature as William M. Smith. His wife's signature shows as Julia E. Smith. The address shown is 1817--19 1st Capitol Dr., St. Charles, Mo., the phone number is RA 4--1868 and listed in the name of Dorothie Knight. Plaintiff's bank is listed as 1st National Bank, St. Charles, Mo., checking account No. 745--136--5, and his employer is shown as McDonnell-Douglas, Lambert Field.

Defendant Allied issued one identification card to plaintiff and one to his wife. During 1969 and 1970, plaintiff cashed checks at defendant's store about once every five or six weeks but did not recall cashing checks there between May and October of 1970.

On May 23, 1970, someone appeared at the Allied Store in Bridgeton, of which defendant William May was the manager, and a Thomas Boden was the co-manager, and presented a check to Mr. Boden for cashing. Mr. Boden 'okayed' the check by putting his initials on the reverse side and the customer received cash or merchandise for it.

The check was typical and in the following form:

"WILLIAM M. SMITH 114

Steven Peters

2050 Woodson Rd.

Overland, Mo. 63114 80-1825

May 23, 1970 810

Pay

to the

Order of K. MART $ 64.88

Sixty-four and eighty eight cents DOLLARS

BANK OF OVERLAND

Overland, Mo.

[/s/] William M. Smith" Mr. Boden, who 'okayed' the check, had written a driver's license number and a telephone number on its reverse side. The driver's license number appeared as 'S1334690686851702' and the telephone number was '427--6963'. A line was drawn through the telephone number.

Mr. Boden testified that the store's procedure in cashing checks was as follows. If a customer had a check cashing identification card issued by the store and presented it with a check, then the ID card number would be written on the check by Mr. Boden. If the customer did not have the ID card with him but had been issued one, Mr. Boden would look up the card in the store's files and write the ID card number on the check after comparing the signature and information on the store's card with the signature on the check and the driver's license number as given by the customer with the driver's license number in the store's files. A person can apply for a check cashing ID card and may be permitted to cash a check at the same time. In that event there would be no check cashing ID card number available yet, and therefore none would appear on the cashed check, but the check maker's driver's license number would be written on the check. There is also the possibility that an employee cashing a check for a customer would simply neglect to put an ID card number on the cashed check.

Neither the store manager May nor co-manager Boden recalled whether or not there was a check cashing ID card in the store's files for a William M. Smith of 2050 Woodson Road, Overland, Missouri.

Mr. Boden identified the instant check as one he had cashed by his initials on the reverse side thereof. This check, shown supra, had no check cashing ID number on it; the driver's license number on the check is S--133--4690--6858-- 51702, which is different from plaintiff's license number as shown on the application which was S133--4690--0858--5339. The phone number Mr. Boden wrote on the check was 427--6963 whereas plaintiff's phone number shown on the store's ID card application was RA 4--1868.

In short, the information contained on plaintiff's check cashing ID card application was not similar in any respect to the comparable information on the check that was cashed, except for the similarity of names.

The check was returned to Allied Supermarket by the Overland Bank on May 30, 1970, marked account closed. Mr. May called the phone number on the back of the check and was told the phone had been disconnected. He then mailed three letters to William M. Smith at the Woodson Road address shown on the check advising him that the check had been dishonored and requesting prompt payment. The first letter was not returned; the last two were returned marked 'moved and no forwarding address'. After the last of the three was mailed on June 16, 1970, Mr. May then requested the prosecuting attorney of St. Louis County to send a 'ten day letter', but this too proved fruitless.

Also, in accordance with store policy there was an internal memorandum entitled 'Return Check Report' prepared by the cashier under the supervision of Mr. May. This report showed that the check signed by a William M. Smith drawn on the Overland Bank was returned due to the fact that the account was closed. Written on this report was the notation 'warrant for his arrest'. The report was signed by defendant May, the store manager.

On October 27, 1970, Mr. May called the Bridgeton police and officer Hagen came to defendant's store at which time the officer was given the check cashing ID card application of William Marion Smith and the bogus check. Mr. May did not recall if he reviewed the application before giving it to the police, but he normally would do so, and he did not recall whether he was aware of the differences between the information on the bogus check and that on the application. Mr. May testified at first that he signed a complaint against William M. Smith and later said he did not recall whether he did or didn't sign a complaint. Mr. May testified the Bridgeton police wanted all the information the store had on the check. In compliance with that policy, the Bridgeton police were given the application for check cashing card of plaintiff and the bogus check.

Officer Hagen testified he went to defendant's store in response to a call on October 27, 1970, and contacted Mr. May from whom he received the check cashing application and the bogus check and received a signed complaint in regard to the bogus check for the purpose of a prosecution in municipal court in Bridgeton.

The letter of June 16, 1970, sent by Mr. May to William Smith, 2050 Woodson, stated, 'You are hereby given ten days from the date of this letter to make restitution on the above check, or the check will be turned over to the Bridgeton Police Dept., and the St. Louis County Prosecuting Attorney's Office, for legal action and Prosecution', and shows a copy was sent to the Bridgeton police department. The letter sent to the same addressee on June 30, 1970, stated that if the check was not paid by July 3, 1970, 'I will have no alternative but to refer it to the proper public official for appropriate action.'

After making copies of the documents he received from defendant May and returning the originals to the store, officer Hagen returned to the police station, wrote out the narrative of his report, and caused a teletype communication to be sent out for the arrest of William Marion Smith, 2050 Woodson Road, Overland, Missouri, on a charge of bogus checks. He got the middle name of Marion from the check cashing application of plaintiff. He testified he then checked the telephone directory and the...