Teel v. May Department Stores Co.

• Citation: 155 S.W.2d 74,348 Mo. 696
• Decision Date: 21 July 1941
• Docket Number: 37408,37409
• Parties: Mabel Teel, Plaintiff-Appellant, v. May Department Stores Company, a Corporation, and Dewey C. Zytowski, Defendants-Respondents. Mabel Teel, Plaintiff-Respondent, v. May Department Stores Company, a Corporation, and Dewey C. Zytowski, Defendants-Appellants
• Court: Missouri Supreme Court

155 S.W.2d 74

348 Mo. 696

Mabel Teel, Plaintiff-Appellant, v. May Department Stores Company, a Corporation, and Dewey C. Zytowski, Defendants-Respondents.

Mabel Teel, Plaintiff-Respondent, v. May Department Stores Company, a Corporation, and Dewey C. Zytowski, Defendants-Appellants

Nos. 37408, 37409

Supreme Court of Missouri

July 21, 1941

Rehearing Denied October 30, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Reversed and remanded.

B Sherman Landau for plaintiff-respondent.

(1) Defendants' theory in the trial court was that plaintiff had voluntarily accompanied Zytowski and that there was neither arrest nor imprisonment. Defendants cannot, on appeal, change their theory to that of justifiable arrest, as the cause must be heard in the appellate court on the same theory upon which it was tried in the lower court. Benz v. Powell, 338 Mo. 1032, 93 S.W.2d 877; White v. Kentling, 134 S.W.2d 39; Stoll v. First Natl. Bank, 134 S.W.2d 97; Kincaid v. Birt, 29 S.W.2d 97. (2) Although plaintiff was imprisoned by defendants, there was no "arrest" within the meaning of the law, as that term implies the operation of judicial process with attendant right to bail, habeas corpus and other safeguards guaranteed by Constitution. 6 C. J. S. 571, 619, 679; 2 R. C. L. 446. (3) Plaintiff's companion was not guilty of the crime of false personation as (a) The element of criminal intent, or intent to defraud, was lacking; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A. L. R. 1301; 25 C. J. 577, 578; 2 Brill Cyclopedia of Criminal Law, sec. 1277, p. 1941; State v. Weisman, 225 S.W. 949; United States v. Bradford, 53 F. 542; Lamar v. United States, 240 U.S. 60, 36 S.Ct. 258, 60 L.Ed. 526. (b) By representing herself to be married to Foster, she misrepresented her status but not her person. (4) Plaintiff could not have been guilty of the crime of aiding and abetting Leona Teel in the crime of false personation as (a) Leona Teel was not guilty of alleged crime; Cases cited under Point (3). (b) Plaintiff knew that her sister-in-law was authorized to purchase on Foster's account, and (c) Plaintiff's mere presence at the commission of the alleged crime did not constitute "aiding or abetting." State v. Odbur, 317 Mo. 372, 295 S.W. 734; State v. Mathis, 129 S.W.2d 20. (5) Even if Zytowski's imprisonment of the plaintiff were to be termed an "arrest" without warrant, it was illegal and unjustified at law, as the alleged offense was not committed in his presence. 6 C. J. S. 580-581, 608; Gray v. Earls, 298 Mo. 116, 250 S.W. 567, 572. (6) Zytowski did not pretend, at the time of the imprisonment, that he was arresting the plaintiff for the offense here charged by defendants. No private person may, without a warrant, arrest another, and seek to justify the act by attempting to show that the arrested person was guilty of some offense not thought of at the time, and for which no effort was made to convict him. Leve v. Putting, 196 S.W. 1060. (7) If the defendants wanted to arrest the plaintiff, or have her arrested, they were required by law to comply with the requisite of securing the issuance of a warrant. Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270; Leve v. Putting, 196 S.W. 1060; Harris v. Term. Ry. Assn., 203 Mo.App. 324, 218 S.W. 686; Lindquist v. Friedman's, Inc., 366 Ill. 232, 8 N.E.2d 625, affg. 285 Ill.App. 71, 1 N.E.2d 529. (8) Defendants may not complain of Instruction 1, given by the court of its own motion, as that instruction was overly favorable to defendants in that it unduly limited plaintiff's right of recovery. Derrington v. Southern Ry. Co., 328 Mo. 283, 40 S.W.2d 1069, cert. den. Southern Ry. Co. v. Derrington, 284 U.S. 662, 52 S.Ct. 37, 76 L.Ed. 561; State ex rel. state Highway Comm. v. Duncan, 323 Mo. 339, 19 S.W.2d 465; Noonan v. Independence Indemnity Co., 328 Mo. 706, 41 S.W.2d 162, 167, 76 A. L. R. 931.

Roscoe Anderson and Lewis, Rice, Tucker, Allen & Chubb for defendants-appellants.

(1) Plaintiff's own case, by her own testimony, established that she was guilty of the felony of obtaining, or attempting to obtain, property by false personation. (a) Plaintiff's evidence showed that her sister-in-law, Leona Teel, was guilty of the felony of obtaining, or attempting to obtain, property of the defendant The May Department Stores Company, of the value of $ 93.39 and which was intended to be delivered to Mrs. A. F. Foster, by falsely personating said Mrs. A. F. Foster. Secs. 4456, 4488, 4835, R. S. 1939; Secs. 4064, 4096, 4442, R. S. 1929; State v. Kosky, 191 Mo. 1, 90 S.W. 454; Sloan v. Tennessee, 168 Tenn. 573, 79 S.W.2d 1021; State v. Wright, 342 Mo. 58, 112 S.W.2d 571; State v. Logan, 344 Mo. 351, 126 S.W.2d 256; State v. Hyde, 234 Mo. 200, 136 S.W. 316. (b) Plaintiff aided, abetted and encouraged said Leona Teel in the commission of said felony and was guilty of the said offense in the same degree. Sec. 4839, R. S. 1939, Sec. 4446, R. S. 1929; State v. Ring, 141 S.W.2d 57; State v. Cantrell, 320 Mo. 248, 6 S.W.2d 839; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919; State v. Bishop, 317 Mo. 477, 296 S.W. 147. (2) The guilt of the plaintiff was a complete bar to her action Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270; 6 C. J. S., p. 606; State v. Peters, 242 S.W. 894; Harris v. Term. Ry. Assn., 203 Mo.App. 324, 218 S.W. 686; Leve v. Putting, 196 S.W. 1060. (3) The issue submitted to the jury by the court of the court's own motion and over the objection and exception of both plaintiff and defendants was not an issue in the case. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Grosvener v. New York Cent. Ry. Co., 343 Mo. 611, 123 S.W.2d 173; Russell v. Empire Storage Co., 332 Mo. 707, 59 S.W.2d 1061; Morley v. Prendville, 316 Mo. 1094, 295 S.W. 563; Degonia v. Railroad, 224 Mo. 564, 123 S.W. 807; Bach v. Ludwig, 109 S.W.2d 724; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Behen v. Transit Co., 186 Mo. 430, 85 S.W. 346; Blue v. Supreme Camp of American Woodmen, 135 S.W.2d 373; Barber v. Kellogg, 123 S.W.2d 100; Graefe v. Transit Co., 224 Mo. 232, 123 S.W. 835; Evans v. Williams, 222 Mo.App. 705, 4 S.W.2d 867.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for $ 20,000 actual and $ 20,000 punitive damages for false arrest and imprisonment. The jury returned a verdict for $ 500 actual and $ 500 punitive damages, a total of $ 1000 for which judgment was entered. Plaintiff appealed and raises only the issue of inadequate damages. Defendant also appealed and assigns error in the refusal of a peremptory instruction and in Instruction No. 1 on which the case was submitted. Jurisdiction is here because plaintiff seeks a new trial (on issue of damages only) to recover the full amount claimed in her petition.

The facts hereinafter stated were shown by plaintiff's evidence (mainly testimony of plaintiff and A. F. Foster) considered most favorably to plaintiff's contentions. (We use the term defendant to refer to the corporate defendant.) Plaintiff's sister-in-law Leona Teel, who was separated from plaintiff's brother and had a divorce suit pending against him, lived with plaintiff in St. Louis during October and November of 1939. She went by the name of Leona Nesslein the name of her former husband to whom she was married before she married plaintiff's brother. Leona had met Mr. A. F. Foster of Wood River, Illinois, that spring and he frequently came to see her. Plaintiff went out with them for the evening on one occasion. Foster gave Leona $ 125, which it may be inferred she used for her divorce. (She obtained a decree about December 4 or 5, 1939.) Foster also told Leona he would buy her a fur coat. She selected a coat at defendant's store, paid $ 3 on it, and had it "placed in the Will Call." Foster went with her on October 27th, got the coat, and had it ($ 116) charged to his account. Plaintiff rode down town with them on that trip. Foster was married and lived with his wife and thirteen-year-old son. However, Foster showed Leona a clipping from an Alton newspaper stating that a divorce suit had been filed by Fred Foster against Mary Foster (which was his wife's name) and Leona showed this to plaintiff. Foster testified that these were other parties and that he carried it "for quite a while and got many a laugh out of it." (Foster and his wife were never separated and were still living together at the time of the trial.) He did not say whether he told Leona that it did not refer to him, and it may be inferred that she and plaintiff thought it did, and believed that they would be married when both were divorced. Foster also gave Leona a letter addressed to "To Whom It May Concern," which stated that Leona Nesslein was authorized to buy on his account at the Famous-Barr Company, and stated a limit of $ 150 per month. Plaintiff said she saw this letter, but it was never presented to defendant and no notice of any such authorization was given to defendant. (It was not produced at the trial.) Foster told Leona to tell them, at defendant's store, she was Miss Foster because "if she bought something and wanted to take it with her she could not give her name." (Unless she showed the letter.) He said he told Leona that the letter "was not to be used unless she was required to;" that "if anybody questioned it (her right to buy on his account) to produce this letter;" because, if she did not take her purchase with her, "it would have to come to the house, and she would have to come up here and get it." (It is not difficult to understand why that might prove an unworkable arrangement.) After the purchase of the coat, during the latter part of October and first part of November, Leona did buy, on Foster's account, such items as ...