Vanneman v. W. T. Grant Co.

• Decision Date: 13 November 1961
• Docket Number: No. 1,No. 48025,48025,1
• Citation: 351 S.W.2d 729
• Parties: John VANNEMAN, a Minor, by His Father and Next Friend, Ralph F. Vanneman, Appellant, v. W. T. GRANT COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 729

351 S.W.2d 729

John VANNEMAN, a Minor, by His Father and Next Friend, Ralph F. Vanneman, Appellant, v. W. T. GRANT COMPANY, a Corporation, Respondent.

No. 48025.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Rehearing Denied Dec. 11, 1961.

Louis A. Silks, Jr., John R. Monaghan, Silks, Silks & Curtis, Kansas City, for appellant.

Rodger J. Walsh, Kansas City, for respondent. Davis, Thomson, VanDyke, Fairchild & Walsh, Kansas City, of counsel.

WESTHUES, Presiding Judge.

Plaintiff John Vanneman, a minor, by his father and next friend, Ralph F. Vanneman, filed this suit against the defendant W. T. Grant Company, a corporation, wherein he sought $5,000 actual and $5,000 punitive damages. Plaintiff alleged in his petition that while in defendant's place of business he was willfully assaulted, unlawfully detained, and slandered without just cause.

The case was tried in the Circuit Court of Jackson County, Missouri, where the jury found the issues in favor of defendant and plaintiff appealed from the judgment entered pursuant to the verdict. After motion for new trial was overruled, a notice of appeal was filed in this court on December 23, 1959, which was before our appellate jurisdiction was raised to $15,000.

The occurrence out of which this case arose happened in defendant's storeroom in Mission, Kansas. Plaintiff, a fourteen-year-old student in the tenth grade, and a school companion went to defendant's store on February 17, 1958, at about four o'clock in the afternoon. Plaintiff desired to purchase a watch band. After they entered the store, the boys separated. Plaintiff went to look for a watch band while his companion went to a counter where records were on display and where a record player was available. Plaintiff was unable to find the location where the watch bands were kept for sale and joined his companion at the record counter. After playing a record, they left that counter and approached the man in charge, a Mr. Ripley, and inquired about a watch band. Ripley and the boys went to the place where the bands were on display and after looking at a number of them, plaintiff stated that none of the bands was the kind he wished to buy. The boys then started to leave the store. Plaintiff was wearing a short jacket which, when zipped, bulged somewhat at the chest. After the boys had taken a few steps, Mr. Ripley said to them, 'Just a minute, boys,' or words to that effect. The boys stopped, whereupon Mr. Ripley examined plaintiff's jacket. He testified that he thought the boy might have hidden a record under the jacket. No record was found. Ripley apologized to plaintiff and stated, 'We have had quite a bit of shop-lifting in the store, I naturally had my eyes open.' The boys then left the store. Plaintiff informed his father of what had occurred. The father went to the store and had a conversation with Ripley. Later this suit was filed. The above account is substantially what occurred. There was some difference in the evidence as to just what was said at the time by Mr. Ripley to plaintiff. However, all agreed that the boys were detained for not more than two minutes; further, that no harsh words were spoken and that the assault consisted of Mr. Ripley's pushing on plaintiff's jacket to determine if it contained a record.

On this appeal, in plaintiff's brief, it is stated that the trial court erred in giving, at defendant's request, instructions No. 2 and No. 3; further, that the trial court erred in not discharging the jury when defendant's counsel made statements before the jury to prejudice plaintiff and his witness. In the last assignment, plaintiff says the trial court erred in not admitting evidence showing what the hearer understood by the defendant's alleged slanderous words.

Instruction No. 3, complained of, reads as follows: 'The Court instructs the jury that if you find and believe, that at the time mentioned in evidence, that the defendant's agent, servant and employee did not deprive the plaintiff of his freedom of movement, if so, or restrain his liberty, if so, or did not with malice assault plaintiff, if so, or did not put him in fear for his safety and physical well being, if so, or did not slander plaintiff, if so, then your verdict must be for defendant.'

This instruction in the disjunctive informed the jury that the verdict must be for the defendant if the jury found against plaintiff on any one or more of the elements mentioned in the instruction. In other words, the jury was told that even though plaintiff may have been deprived of his freedom, restrained of his liberty, assaulted, put in fear for his safety, and slandered, yet, if defendant's agent 'did not with malice assault plaintiff, * * * then your verdict must be for defendant.' We find no theory on which this instruction may be justified. The element of malice is, of course, important on the question of punitive damages. 35 C.J.S. False Imprisonment Sec. 67, p. 776. Plaintiff, however, sought actual as well as punitive damages and the case was so submitted. The absence of malice is not a defense to actual or compensatory damages. 35 C.J.S. False Imprisonment Sec. 64, p. 770; Comer v. Knowles 17 Kan. 436, cited with approval in Perry v. S. H. Kress & Co., 187 Kan. 537, l. c. 540, 358 P.2d 665.

In point three, plaintiff says the trial court should have declared a mistrial because the attorney for the defendant made statements concerning plaintiff's father when the father was on the witness stand. In the argument of the brief, plaintiff complains of the following statement made by defendant's counsel in open court: 'Mr. Walsh: The witness testified from the stand he has always had this boy with him, he has a high degree of care for the boy, he has not even paid for the child, support of this boy and had to be...