Wehrman v. Liberty Petroleum Co., 31272

• Decision Date: 15 September 1964
• Docket Number: No. 31272,31272
• Citation: 382 S.W.2d 56
• Parties: Christian H. WEHRMAN, Plaintiff-Respondent, v. LIBERTY PETROLEUM COMPANY, Inc., a Corporation, and Wilford Brown, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 56

382 S.W.2d 56

Christian H. WEHRMAN, Plaintiff-Respondent, v. LIBERTY PETROLEUM COMPANY, Inc., a Corporation, and Wilford Brown, Defendants-Appellants.

No. 31272.

St. Louis Court of Appeals, Missouri.

Sept. 15, 1964.

Rehearing Denied Oct. 13, 1964.

Alvin A. Wolff, Hullverson, Richardson & Hullverson, Orville Richardson, Corinne Richardson, St. Louis, for defendants-appellants.

Coleman, Ross & Cekovsky, Hal B. Coleman, Clayton, William L. Mason, Jr., St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

Plaintiff, Christian H. Wehrman, sued to recover actual damages of $4,000 and punitive damages of $15,000 from defendants Liberty Petroleum Company, Inc. and Wilford Brown for causing him to be falsely arrested. The jury returned a verdict against both defendants for actual damages of $100 and punitive damages of $7,500, judgment was entered in conformity therewith, and after unavailing after-trial motions the defendants appealed.

The numerous points and sub-points raised by defendants comprise most of the grounds of appellate review. They contend that error was committed in overruling their motions for a directed verdict at the close of all the evidence; in the giving of certain instructions on behalf of the plaintiff; in the refusal of instructions offered by the defendants; and in the admission of certain evidence. Lastly, they complain that the verdict for $7,500 for punitive damages is excessive.

Defendants' initial contention requires a review of the evidence most favorable to plaintiff. Defendant Liberty Petroleum Company, Inc., whose home office was in Mount Vernon, Illinois, owned and operated a filling station, designated as No. 15 in its chain, at Hebert and Florissant Avenues in the City of St. Louis, Missouri. Defendant Wilford Brown was the manager of the station. Plaintiff, then a salesman for a hearing aid company, was a customer. On September 30, 1957, about 9:00 A.M., plaintiff stopped at the station on his way downtown to his office and had his tank filled with gasoline, for which he paid $4.60 in cash. Around 11:0 A.M. he left his office, obtained his car from the lot where it had been parked, and started to drive home for lunch. Plaintiff experienced trouble with the motor, which repeatedly died, and by the time he reached Delmar Avenue his battery was dead. His automobile was pushed into a nearby filling station where the primary trouble was diagnosed by the attendant as water in the gasoline. The fuel pump was cleaned, part of the gasoline was drained from the bottom of the tank, a can of Heet was put into the tank to cut any water remaining in the gasoline and the battery was charged, for which services plaintiff paid $4.50. Plaintiff then drove to Liberty Petroleum's station where he complained to Brown that the gasoline he had purchased there had contained water. Brown said he knew it had, because he had found water in his own gasoline taken out of the same tank, and because another customer had already been in to complain. Plaintiff pointed out that he had had $9.10 of expense ($4.60 for the gasoline and $4.50 for the service to his car), and Brown stated that he would take plaintiff's name, address and phone number and have the company mail him a check.

On two occasions that afternoon plaintiff experienced further trouble in starting his car, and spent an additional $4.05 for services and cans of Heet. Sometime between October 2 and October 11, plaintiff went back to Liberty Petroleum's filling station and informed Brown on his further difficulties and his additional expenses. Brown told plaintiff that he had been authorized to pay the $9.10 in cash, but in view of the further expense that plaintiff should write to James Dohono, Brown's superior at Liberty Petroleum's office, so that one check could be made out for the entire amount. Brown thereupon wrote out Dohono's name and the company's address, in Mount Vernon, Illinois, on a slip of paper and gave it to plaintiff. Plaintiff wrote Dohono, as Brown had suggested, and advised Dohono that he would call at the station on October 16.

Plaintiff received neither a check nor any reply, and on October 16, 1957, about 9:00 A.M., he drove in to the station to talk to Brown. The latter was waiting on another customer but called to him, '* * * 'I will be right with you, Mr. Wehrman.'' While waiting, plaintiff was approached by another attendant and asked if he needed gas. Plaintiff replied that he didn't have time, but when the attendant said that Brown would be busy for some time, plaintiff stated he might as well get his car filled up. Plaintiff backed his car up to the pump and the attendant put in gasoline and oil amounting to $2.65. Thereafter Brown approached plaintiff, asked plaintiff if he had heard from the company, and when plaintiff answered 'No,' Brown said that he was not going to hear from it because the company was not going to pay plaintiff a cent. Plaintiff rejoined that he didn't understand, and Brown then stated that plaintiff would never prove that they were the ones who sold him the watered gasoline. Plaintiff at first thought Brown was joking, but when he realized that Brown was serious, inquired whether Brown wanted him to get a lawyer. Brown answered that plaintiff should get a half dozen lawyers, that plaintiff would not spend three or four hundred dollars to collect thirteen or fourteen dollars. In an effort to change Brown's mind, plaintiff suggested to Brown that a customer waiting at another pump be told of the controversy and his reaction obtained. Brown told plaintiff to go ahead, that it wouldn't do him any good. Plaintiff and Brown approached the customer, and plaintiff explained about his bills, but the customer said that he didn't want to get mixed up in the matter.

Brown thereupon told plaintiff that he would never get paid, and demanded payment of $2.65 for the gas that had been put in plaintiff's car. Plaintiff replied that he hadn't come in to buy, that the sale had been solicited, that if Brown wanted the gas he could drain it out of his tank, or that Brown could deduct the amount from what was owed plaintiff. Brown refused to drain the tank, stated that he wasn't running a charge account, and that if plaintiff didn't pay he would call the police. Plaintiff said that Brown didn't have to call the police, that he would call them. Brown warned him not to put one foot in the office, and plaintiff again told Brown to call the police, that he would wait. Brown's answer was, '* * * 'I'm telling you for the last time it's pay or get off.' * * *' Plaintiff said, '* * * 'Well, I'll get off.' * * *' and as he was driving away plaintiff told Brown that his car would be parked at Eighth and Market Streets. According to plaintiff, Brown comported himself throughout in an aggressive and nasty manner.

Brown telephoned the police as soon as plaintiff drove away. Officer Hamlin and another policeman, not identified, came to the filling station in answer to Brown's telephone call. Hamlin, whom Brown knew as a customer of the station, was the one who talked to Brown about the matter. By the time the trial was held Hamlin had died. The only evidence as to what Brown told Hamlin was extracts from Brown's deposition, which plaintiff read to the jury over defendants' objections. Since no error is assigned for review with reference to the admission of such evidence we accordingly consider it as if it came in without objection. Myers v. Karchmer, Mo., 313 S.W.2d 697, 708. According to Brown, all that he told Officer Hamlin was that a man came in to the station, made a purchase, refused to pay for it, and drove out without paying. Brown, whose not infrequent answers on both direct and cross-examination were, 'I don't remember that,' testified on direct examination that he gave Hamlin information about the kind of car it was and its license number. On cross-examination he stated that he didn't give Hamlin plaintiff's name and address because plaintiff had never given them to him, but when pressed about plaintiff's prior complaints of watered gasoline, recalled that plaintiff had given such information to him but that he had sent it to the company.

Hamlin's report (not introduced in evidence) reached Detective Thurman, who traced the automobile license number to plaintiff. Plaintiff was arrested at his home by Thurman and Detective Aikens on October 19, 1957, about 8:30 A.M. Thurman advised plaintiff that he was arrested for larceny under fifty dollars. Plaintiff was taken in a police car to the Fifth District police station at 1901 Penrose Avenue, where he was booked under the same charge. Thurman then contacted Brown, and after plaintiff had been at the station about 10 or 15 minutes Brown arrived. According to plaintiff, the detectives asked Brown '* * * if I was the man' and Brown answered, 'Yes.' Plaintiff testified that the detectives questioned Brown, and that Brown finally decided he would pay plaintiff if plaintiff would give him a receipt. Plaintiff agreed to give Brown a receipt provided that he obtained a copy. Brown paid plaintiff $9.00, prepared a receipt and a copy thereof, and plaintiff signed it. The copy, which was read to the jury, was as follows:

'October nineteen, 1957, I paid out to Mr. Wehrman nine dollars. The amount he paid for the purchase price of the Ethyl, gas purchase. Also repair bills for removal of water from tank. Total pay nine dollars. Liberty Petroleum Company. Wilferd Brown. Received payment 10-19-57. C. H. Wehrman.'

Plaintiff insisted that he did not pay Brown $2.65 for the gasoline and oil he had obtained on October 16, and denied Brown's testimony that each had paid the other. Following the payment to him by Brown, plaintiff was released. Detective Thurman testified that as a matter of routine a warrant was thereafter applied for and refused.

As plaintiff points out, in determining whether plaintiff made a submissible case we need not concern ourselves...