Titus v. Montgomery Ward & Co.

• Decision Date: 05 December 1938
• Citation: Titus v. Montgomery Ward & Co., 123 S.W.2d 574, 232 Mo.App. 987 (Mo. App. 1938)
• Parties: GLADYS TITUS, RESPONDENT, v. MONTGOMERY WARD & COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

123 S.W.2d 574

232 Mo.App. 987

GLADYS TITUS, RESPONDENT, v. MONTGOMERY WARD & COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

December 5, 1938

Rehearing Denied January 4, 1939.

Appeal from Circuit Court of Jasper County.--Hon. Ray E. Watson Judge.

AFFIRMED.

Judgment affirmed.

Paul E Bradley, Charles M. Grayston and Robert L. Wright for appellant.

Vern E. Thompson, Loyd E. Roberts and Russell Mallett for respondent.

FULBRIGHT, J. Allen, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.

This is an action to recover damages in the sum of $ 3000 for an alleged false arrest and imprisonment.Trial was had by a jury in the Circuit Court of Jasper County resulting in a verdict and judgment for plaintiff in the sum of $ 300.Motion for new trial was overruled and defendant appealed.

The petition is in conventional form and alleges that Irene Hoffman was a duly appointed and authorized servant of the defendant, Montgomery Ward & Company, a corporation; that plaintiff, in company with three relatives, went to defendant's store December 23, 1933; and that in leaving while plaintiff was upon the sidewalk adjoining and near the store the defendant, by and through its servant and agent, Irene Hoffman, while acting within the scope of employment, without a warrant, process, or authority of law, arrested and restrained plaintiff of her liberty.Plaintiff prayed for $ 3000 actual damages.No punitive damages were asked.

Defendant's answer admitted its corporate existence and authority to do business in Missouri, and that it is engaged in conducting a store in Joplin, but denied each and every other allegation in plaintiff's petition.As an affirmative defense defendant pleaded, in part, as follows: "That at the time of the occasion in front of said store the said sales clerk was engaged in the investigation of circumstances such as caused her to believe and that she did believe that a dress had been unlawfully removed by plaintiff or her companions and that she was engaged in the protection of defendant's interests and property and acting in good faith in so doing and that she had probable cause to believe and did believe that property of the defendant had been taken without right."To this answer plaintiff's reply was in the nature of a general and specific denial.

Plaintiff testified that on December 23, 1933, she, Florinda Gust, Gladys Hurst, Daisy Hurst, and Gladys' little boy went to Montgomery Ward's store to look for a coat for plaintiff's mother; that they looked through the coats, and not seeing one they liked, started out; that when they first looked at coats no clerk was present, but one came later, asked if she might wait on them, and was told that the coats were not suitable; that Gladys Hurst walked over to the coats, Daisy stopped by the door to look at a coat on a model there, and Florinda Gust stood at the door and never did enter; that in leaving, at the top of the stairway they stopped to observe a display of a mechanical toy for a minute or two, but did not go by the furniture department, and were not whispering among themselves.Plaintiff further testified that she and her companions left by the door through which they entered, plaintiff in front of the party, carrying a coat in a large sealed box which she had purchased elsewhere, and was almost to the curb watching the traffic light and waiting for the others, thinking they were near at hand, "but the first thing I knew Irene Hoffman grabbed ahold of me and said, 'Wait a minute, hold on, don't move or I will call an officer and put you in jail.'I just stood there, didn't know what else to do.She went through my coat, clear into the back of it, both sides, and tore the whole end out of the box, didn't tear it open, pulled the coat about half way out and was hollering all the time, 'Stand still, or I will call an officer and put you in jail.'She said 'Don't move' and I stood still.I was afraid.She didn't say what she was searching me for.I said, 'What does this mean?'She kept saying, 'Stand still, or I will call an officer.'Called us shoplifters.I didn't know she had searched the others.She said you couldn't steal anything off of her floor and get away with it, and she went through my box and my clothes and started to run back in the store."This testimony was corroborated in essential parts by the testimony of Florinda Gust and Daisy Hurst.

On behalf of defendant, the evidence showed that plaintiff and her companions walked around the dress racks that Mrs. Hoffman had recently checked; that Mrs. Hoffman had removed all empty hangers and pinned back the dresses; that when the ladies came into the department Mrs. Hoffman was on the opposite side of the room and in about a minute she went over to wait on them; that as she walked around one of the dress racks which she had recently checked she saw an empty hanger still swinging; that she took the hanger down knowing that the dress had been removed, and handed it to Mrs. Van Hoorebeck who was in the department at the time; that when she took the hanger down two of the ladies acted very excited and nervous and one's face got red; that when the women went out two of them acted especially nervous, "just sort of ambled out of the department;" that the largest lady lagged back behind the others looking at some living room furniture; that she stooped over as if she was examining the tapestry or material of the chair and davenport; that the next to the largest lady acted suspiciously holding her coat tight, and this left the impression on the clerk that the dress was under her coat; that all the ladies met at the toy department, then went on down stairs, the clerk following; that at the front of the store they stopped, held a whispered conversation, then went on out; that Mrs. Hoffman said, "Just a minute," and looked inside the coat of one of the ladies, but did not go through her parcels; that she glanced in the other two ladies' coats, but did not touch them or go through their packages; that when she got to the lady on the curb she asked permission to examine the contents of the box, which was given; that the lady opened the box herself and that the clerk did not touch her at all; and that she went immediately to the furniture department where the lady had stood and there found the dress kicked back under the davenport.Mrs. Hoffman testified: "When I was out on the street the full conversation that was had between me and these ladies was: I said, 'Just a minute' to the first lady as I looked in her coat and I might have said 'Wait' to the one that had gone the farthest out and then I asked her if I might see in her box and she said 'certainly.'That is all that was said.I wasn't out there over a minute."

The defendant charges that the court erred in refusing to give instructions E and H.Instruction E is as follows:

"The court instructs the jury that if you find and believe from the evidence that a dress was missing from one of the racks in the fashion department and that at said time the plaintiff and her companions were in said department looking at merchandise on display and that the said dress was missing from said rack under such circumstances as to induce in the mind of the said Irene Hoffman an honest belief, and she did believe, that the plaintiff or one of her companions had stolen said dress, then you are instructed that said Irene Hoffman had the right to detain plaintiff and her companions for a reasonable time to investigate the disappearance of said dress and even though you may find that Mrs. Hoffman forcibly restrained plaintiff, yet if you find plaintiff was not restrained for an unreasonable length of time, then your verdict must be for the defendant."

This instruction is based upon defendant's contention that if Irene Hoffman had cause to believe and did believe that plaintiff or one of her companions had stolen property belonging to the defendant, she had a right to arrest and restrain plaintiff for a reasonable length of time for the purpose of making an investigation.Defendant therefore proceeds upon the theory that probable cause is a defense to false arrest and imprisonment.In support thereof numerous cases from foreign jurisdictions are cited, and one Collyer v. S. H. Kress Co.,54 P.2d 20, a decision of the Supreme Court of California, strongly supports defendant's theory.This opinion may declare the law in that State, but it is in direct conflict with the rule adopted and uniformly followed by the courts of Missouri.Our courts have held that probable cause has no place in a plaintiff's suit for false arrest if compensatory damages only are asked.[Greaves v. Kansas City Junior Orpheum Co.,80 S.W.2d 228;Thompson v. Bucholz,81 S.W. 490;Ahern v. Collins,39 Mo. 91.]However, probable cause may be shown in mitigation of damages, especially if exemplary or punitive damages are involved.[Rice v....