Vest v. S. S. Kresge Co.

• Decision Date: 26 May 1919
• Docket Number: No. 13239.,13239.
• Citation: 213 S.W. 165
• Parties: VEST v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

213 S.W. 165

VEST v. S. S. KRESGE CO.

No. 13239.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Ben Vest against the S. S. Kresge Company and another. From judgment for plaintiff against the named defendant, the latter appeals. Reversed and remanded.

Jay Richardson and J. M. Johnson, both of Kansas City, for appellant.

M. J. Kilroy and E. A. Scholer, both of Kansas City, for respondent.

TRIMBLE, J.

This action for false imprisonment was brought against S. S. Kresge Company, a corporation, and one Enoch P. Bamford. Upon a trial, the jury returned a verdict against the corporation, assessing $2,500 actual damages and a like sum as punitive damages, but found in favor of Bamford the individual defendant. The corporation has appealed.

About 8:30 on the evening of October 30, 1915, the plaintiff and a companion named Hill were in the store of the defendant corporation making some purchases. As they were about to leave the store, they were arrested by two men, one of whom, if not both, was in the defendant's employ, being defendant's house detective, and taken to the police station, where they were locked up in the "bull pen" or hold-over with depraved and drunken denizens of the underworld, and kept there until 2:30 p. m. the next day, which was Sunday, when they were released on bail. The following Monday morning they were arraigned in police court, but no one appeared against them except the arresting detectives who, according to the evidence in plaintiff's behalf, were unable to testify against them, as they did not know anything of the charges against the young men, but had merely arrested them on the orders of the house. They were discharged by the police judge.

The store in question was one of several ten cent stores operated by the defendant, S. S. Kresge Company, in various cities, this one being located in Kansas City. Fisher was its general manager and Bamford the assistant general manager.

It was Saturday and Hallowe'en night, and the store was unusually crowded. According to the evidence in plaintiff's behalf, the two boys, Vest, 19, and Hill in his 18th year, went into the store, Vest desiring to buy a pair of socks. They proceeded to the second floor, where Vest made his purchase, after which they returned to the first floor by a stairway, at the foot of which was a calmly counter presided over by a young lady clerk. Hill told Vest to select some candy and he would pay for it. Vest did so, and Hill purchased a sack of the candy selected. The young saleslady, seeing that Vest's friend was paying for the candy, remarked to Vest that she "would hate to go out with a fellow who had to let his friend do the buying for him." To this Vest replied that he had not asked her to go out with him. The boys then started toward the door, but when about 10 feet from the candy counter, they felt themselves suddenly seized from behind, firmly held, and rapidly pushed through the crowd out of the store to the sidewalk by two men, who said they were the defendant company's house detectives, and who told the boys they were under arrest and would be taken to the police station and locked up. To the boys' inquiry, "What for?" the reply was that the manager had ordered their arrest. The men showed the star they wore and said they were the house detectives. They were also armed with revolvers. The man who held Vest was named Schyllerup, and the one who held Hill was named Butcher— so the boys afterwards learned in police court. The man who held Vest ordered the other man to take both boys to the nearest telephone and call the patrol wagon and have them locked up. After directing this, he returned to the store. Despite the boys' protests they were taken by Butcher to a nearby cigar store and made to stand in a corner until the patrol wagon came, when they were taken to the station and held as above stated. According to the boys' contention they were not misbehaving in the store and had done nothing beyond what has been stated.

The testimony in plaintiff's behalf tends to show that on Monday morning the two detectives appeared in court, but disclaimed any' personal knowledge of any misbehavior on the part of the boys. The charge in police court was disturbing the peace, but as no one appeared to testify against them they were by the magistrate discharged.

There is no question but that the arrests were made, the boys locked up as stated, on the charge of disturbing the peace, and that they were discharged.

According to defendant's evidence, Butcher had formerly worked as a detective at the store, but at this time he was employed at Bernheimer's store, and on the evening in question had "just dropped into" the Kresge Company's store. He also had a commission from the city as a "special" police officer. He testified that the boys had been cutting up, making a noise, throwing spitballs, and pushing their way through the crowd; that Bamford came to him and told him to watch them; that he did so, and requested them three times to desist, which they promised each time to do, but did not. According to his evidence, however, he did not arrest them for this, but because Hill struck him, whereupon he, upon his own responsibility, made the arrest, and called upon the other man, Schyllerup, to assist him; that the blow from Hill caused a wound upon his cheek, making it bloody and blacking his eye. Schyllerup testified that he was the defendant's house detective; that he was in the store, but did not see the boys do anything, but did see Butcher with blood on his face, and the latter asked him to assist him and hold one of the boys, which he did; that he was working in the store, and if trouble happened "it would be up to" him to make the arrest; he could make it himself. Butcher testified that he appeared in police court and told the police judge of: As being struck, and showed his cut cheek and black eye and yet the magistrate discharged the boys, for which he was unable to give any explanation. He further said Schyllerup did not appear in police court. Schyllerup did not remember whether he did or not, but thought he did not. Evidence was, however, offered by plaintiff in rebuttal, tending to show that there were no wounded cheek nor black eye exhibited in police court; that no charge of that kind was made by Butcher, nor was any evidence given the police judge as to what the boys had done since the men disclaimed any knowledge thereof.

Defendant introduced the evidence of several of the clerks, who testified to the boys singing, jostling the crowd, throwing spitballs. The record shows that these witnesses did not testify till at the second trial of Hill's damage suit, which was 2 years after it was pending, and it was the first suit tried.

Appellant contends that the petition can only be construed as charging that the Kresge Company caused the arrest through Bamford; that the plaintiff's evidence shows that it was solely through Bamford that the arrest was caused; and that, therefore, the liability of the corporate defendant resting on the doctrine of respondeat superior, the exoneration of the servant Bamford by the jury ipso facto exonerates the master. In a proper case, this is good doctrine. McGinnis v. Chicago, etc., R. Co., 200 Mo. 347, 358, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656; Hobbs v. Illinois Central Co., 171 Iowa, 624, 152 N. W. 40, L. R. A. 1917E, 1023; Sparks v. Atlantic Coast Line R. Co., 104 S. C. 266, 88 S. E. 739. But such rule should not be applied to this case. The petition charges that "S. S. Kresge Company and Enoch P. Bamford, through certain police officers and employés, * * * did cause and procure plaintiff * * * to be arrested." And the evidence is such as that a jury could find that the Kresge Company acted through the two arresting officers and was responsible for their acts, aside from and independent of whatever was done by Bamford, and even if he did also direct the arrests to be made. Without going further into details of the evidence, the record clearly discloses evidence from which the jury could find that the arrest and imprisonment of the boys was the act of defendant, the S. S. Kresge Company, and for which it was responsible, independent of and aside from the part therein taken by the defendant Bamford. And when we speak in this regard of what the evidence discloses, we eliminate entirely the evidence contained in Bamford's deposition taken in Hill's Case, introduced by plaintiff as an admission against Bamford alone, since such evidence could not, either at the...