Sweaney v. United Loan & Finance Co.

• Decision Date: 11 April 1970
• Docket Number: No. 45585,45585
• Citation: 468 P.2d 124,205 Kan. 66
• Parties: Robert E. SWEANEY, Appellee, v. UNITED LOAN AND FINANCE COMPANY, a Corporation, and Jack Bagby, Appellants.
• Court: Kansas Supreme Court

Page 124

468 P.2d 124

205 Kan. 66

Robert E. SWEANEY, Appellee, v. UNITED LOAN AND FINANCE COMPANY, a Corporation, and Jack Bagby, Appellants.

No. 45585.

Supreme Court of Kansas.

April 11, 1970.

Syllabus by the Court

1. Words which import a charge that a party has been guilty of a felony are actionable per se.

2. Words slanderous per se are those which intrinsically, without innuendo, import injury. They are words for which damage, by consent of men generally, flows as a natural consequence.

3. An apology of the defendant does not operate as a bar to recovery of damages and is admissible only as tending to show an absence of malice and in mitigation of damages.

4. Instructions relating to the slander charged and established by the evidence are examined and held to be without prejudicial error.

5. Rulings on the admission of evidence are examined and held to be without error.

6. There is no fixed rule by which the amount of punitive damages may be measured.

7. In assessing punitive damages, the nature, extent and enormity of the wrong, the intent of the party committing it and generally all the circumstances attending the particular transaction, together with any mitigating circumstances tending to reduce the verdict or wholly defeating the damages may be considered.

8. The record in an action to recover damages for assault, slander and wrongful arrest is examined, and it is held: The jury's verdict in favor of the plaintiff and allowing him $3,000 actual and $18,000 punitive damages, was not excessive.

Bill E. Fabian, of McAnany, Van Cleave & Phillips, Kansas City, argued the cause and was on the brief for appellants.

Charles S. Schnider, of Schnider, Shamberg & May, Kansas City, argued the cause, and John E. Shamberg, Jacob F. May, Jr., and Gerald T. Elliott, of Schnider, Shamberg & May, Kansas City, and Thomas Finigan, Kansas City, were with him on the brief for appellee.

FATZER, Justice.

This was an action to recover actual and punitive damages for assault, slander, and wrongful arrest. The jury returned its verdict in favor of the plaintiff and allowed him $3,000 actual damages and $18,000 punitive damages. The defendants have appealed.

The plaintiff, Robert E. Sweaney, was retired from the Kansas City, Kansas, fire department on a disability pension as the result of a leg injury. On November 25, 1966, the date of the incident in question, he was employed by Howard Hart, d/b/a Hart Body Shop, located on Quindaro Boulevard in Kansas City. The defendants-appellant are the United Loan and Finance Company, Inc., and Jack Bagby, the vice president and manager of its office located at the northeast corner of the intersection of 9th and Minnesota Avenue.

Immediately east of the finance company office building is a small used car lot operated by Bagby in conjunction with the finance company. A few days prior to November 25, 1966, a 1965 Yellow Oldsmobile 442 was stolen from the finance company's used car lot. The theft was reported to the police. The vehicle had a 'dealer's' license on it when stolen.

On the date in question, Hart directed Sweaney to deliver an automobile to Van's Chevrolet Company in Mission, Johnson County, and there pick up a 1965 Yellow Oldsmobile 442 and return it to the body shop for repair. Coincidentally, the Yellow Oldsmobile Sweaney picked up also had a 'dealer's' license on it, but it was not the car which had been stolen from the finance company's used car lot. Sweaney's route back to the body shop required him to proceed west on Minnesota Avenue and past 9th and Minnesota in front of the finance company office. The traffic was heavy and Sweaney was driving slowly. Bagby, who was talking on the telephone, saw the Yellow Oldsmobile through the window of the office and shouted, 'that's it, that's the car,' or words to that effect, and he and an employee of the finance company, Richard Pryor, picked up the hue and cry.

Bagby dropped the telephone and sped out of the office, running westerly down the center of Minnesota Avenue until he caught up with Sweaney in the Yellow Oldsmobile. Sweaney was proceeding in the north traffic lane nearest the curb-he had stopped about a half block west of the 9th and Minnesota Avenue intersection due to the traffic. He testified he heard a man shouting who later was identified as Bagby. By this time he had the car in motion. Bagby took hold of the left door handle and attempted to get into the car. He was not talking in a conversational tone, but was hollering and screaming at Sweaney and told him to 'stop that car-stop that car.' Sweaney asked 'what do you mean, stop this car,' and Bagby said, 'you will find out.' Sweaney said, 'what's the matter with you,' and Bagby said, 'you will find out.' When Sweaney could not ascertain what was happening, he became frightened and stopped the car. He left the motor running, quickly moved over to the righthand seat, opened the righthand door and jumped out into the street. He felt that more than one person was following him, with Bagby being the closest. In his haste, Sweaney tripped as he jumped out of the car and fell to the pavement injuring his left leg, but pulled himself up and over the curb. He ran into the Western Auto Store, which was immediately north of the curb and across the sidewalk. When he was five or six feet inside the door, he looked back over his shoulder and saw Bagby just entering the door. Pryor was running into the store behind Bagby.

After Bagby entered the store, he hollered, 'stop thief, don't let that man get away.' The frightened Sweaney, with Bagby in hot pursuit, ran toward the rear of the store and took sanctuary behind the mail order counter where two or three women clerks were working. When Bagby reached the mail order counter, Sweaney asked, 'what's the matter with you?' and Bagby again replied, 'you will find out.' Sweaney said, 'well what is happening?' and Bagby said, 'you stole that car.' Sweaney said, 'stole that car?' and Bagby said, 'yes.' Bagby then hollered for someone to call the police, and said, 'don't let this man jump the counter, don't let him get away.'

Elliott L. Teters, a sergeant of the Kansas City, Kansas, police department, was off duty, and was present in the store as an employed security man. He was the only disinterested eyewitness who testified at the trial. He estimated there were approximately 40 people in the store when the incident occurred. He saw Sweaney running down the aisle of the store with Bagby pursuing five or six feet behind-Pryor was running behind Bagby. The evidence was undisputed that Bagby, in a hard breathing voice, shouted for someone to stop Sweaney. The evidence was conflicting as to what Bagby said, but he admitted he was convinced that Sweaney was a thief and that the car was the car stolen from his lot. He admitted he told Sweaney, 'don't try to jump over the counter,' and not to leave. Bagby also admitted he told Teters that Sweaney stole the car he was driving and asked that the police be called.

Sweaney made two or three requests that someone call his boss or Van's Chevrolet to verify the fact the car was not stolen, but Teters denied his request.

Teters testified that while the men were running in the store, Bagby shouted 'stop, stop, you're a thief,' several times. He also testified that after Sweaney got behind the counter, and after he showed Bagby his credentials as a police officer, Bagby said 'call the police-he's a thief, he stole a car,' in a loud tone of voice. By this time, there were approximately 20 to 25 people gathered in the vicinity of the mail order counter.

Bagby left the store to check the serial number on the car Sweaney had been driving. Before he left, Bagby stated words to Teters implying that Sweaney was a thief and that he was to be held until he (Bagby) got back. Bagby returned in a few minutes, and, according to Teters, said in a low voice, 'I'm sorry, it's all a mistake.' Bagby then wanted to leave, but Teters required that he wait for the police district car to arrive so that a report of the incident could be made. By this time, the frightened Sweaney was mad. He demanded that Bagby be arrested, which the officers of the district car refused to do. After a report was made, Bagby returned to his office and Sweaney drove the Yellow Oldsmobile to the body shop.

Bad news travels fast. By the time Sweaney arrived at the body shop, his boss, Mr. Hart, and his fellow employees had already been informed he was in trouble with the police.

In seeking reversal, the defendants complain of several alleged trial errors. They first contend the district court erred in refusing their request to amend their answer so as to include the defense provided in K.S.A. 21-535b. The point is not well taken.

The statute (21-535b) is captioned '* * * defense to actions by persons detained for questioning,' and provides a defense to actions for assault, false arrest, false imprisonment, unlawful detention, defamation or slander, brought by any person by reason of having been detained for questioning on the premises of, or in the immediate vicinity of, a store or other mercantile establishment. The statute contemplates the detention of a person for questioning in a reasonable manner immediately after the suspected shop lifting and before the person leaves the premises, or the vicinity thereof-not several days later. It specifies 'if there was reasonable grounds for believing that such person was committing the offense.' (Emphasis supplied.)

In the instant case, the theft of the car had been committed at least two days before and probably longer. Clearly, there was no question of immediate detention or pursuit of the person suspected, and the provisions of the statute which must be strictly construed, do not apply. This court has repeatedly held that amendments to pleadings are within the discretion of the district court (K.S.A. 60-215(a)), and no error will lie unless such discretion is...