Wright v. Automobile Gasoline Co.

• Decision Date: 09 April 1923
• Docket Number: No. 23145.,23145.
• Citation: 250 S.W. 368
• Parties: WRIGHT v. AUTOMOBILE GASOLINE CO.
• Court: Missouri Supreme Court

250 S.W. 368

WRIGHT v. AUTOMOBILE GASOLINE CO.

No. 23145.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Frank Wright against the Automobile Gasoline Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Foristel & Eagleton, of St. Louis, foe appellant.

R. M. Nichols, of St. Louis, for respondent.

HIGBEE, C.

This is an action for false imprisonment. The petition charges that on or about December 12, 1918, the defendant, acting through its servants and agents and certain detectives and officers of the city of St. Louis, did, without any warrant or other legal process, and without probable cause, falsely, wantonly, maliciously, illegally, and unlawfully arrest plaintiff and take him into custody, and by force deprive him of his liberty, etc., and kept him under arrest for about three hours, to his great humiliation and damage, for which plaintiff prays $10,000 compensatory damages and $10,000 punitive damages. The answer is a general denial. At the close of plaintiff's evidence the court sustained a demurrer thereto. Plaintiff suffered an involuntary nonsuit with leave, and, upon the overruling of his motion to set the same aside, plaintiff appealed.

We adopt the appellant's statement, with a few modifications. The evidence is, in part, reduced to narrative form.

Plaintiff, at the time of the trial, was 52 years of age, a barber by trade, married, and had resided in the city of St. Louis for about 30 years. The defendant is a corporation operating filling stations to supply the retail trade with gasoline, oils, etc. It issued and sold to its customers books calling for a certain quantity of gasoline. Each book contained coupons which could be turned in at filling stations for gasoline. It is said in respondent's brief that the number of the license on the car in which the gasoline is filled is placed on the coupon or ticket taken up in payment for the gasoline.

Plaintiff testified that some time in 1917 he purchased a new Dodge car. Two or three months before December 12, 1918, plaintiff advertised his car for sale. A stranger called. in response to the advertisement, and, after examining plaintiff's car, and having it tested by an engineer, purchased it, giving plain tiff his check for $750, which plaintiff cashed, Plaintiff did not remember his name. Prior to December 12, 1918, plaintiff purchased a new Oakland automobile from the regular dealers. On December 12, 1918, plaintiff wag conducting a barber shop in the Third National Bank Building in St. Louis, and had been for about 12 years.

The evening of December 11, 1918, plaintiff's telephone rang. He testified:

"I went to the phone, and a man said, `Is this Mr. Wright?' I said, `Yes, sir.' He said, `You have got a Dodge car, haven't you?' said `No, sir.' He said, `Aren't you the Frank Wright living at 3956 Juniata?' and I said, `Yes.' He said, `Well, you have got a Dodge car, and you have been getting gasoline on stolen books.' I said `No; I haven't been getting gasoline on stolen books.' I said, `I never used a book in my life.' `Well,' he said, `you have got a Dodge car, and you are the same Frank Wright;' and I said, `Who are you?' said, `I don't knew who you are, or what you are looking for; what information do you want?' He said, `I am with the Automobile Gasoline people;' and he said, `Some one is getting gasoline on stolen books, and it is your car;' and I said, `It is not my car; the car is sold.'"

At about 10:30 a. m. December 12, 1918, Mr. Engel, one of defendant's employees, who had the conversation with plaintiff over the telephone, and Police Detectives Kleinsmith and Heckel (in plain clothes) entered plaintiff's barber shop, and Kleinsmith asked for Mr. Wright, and told him:

"We are officers, and we want to know about them gasoline books—about the automobile you sold. Do you mean to tell these people you don't know the man you sold your machine to?"

Plaintiff admitted he had' said so, and stated that the purchaser had paid cash, and plaintiff did not remember his name. Kleinsmith asked plaintiff if he knew the man's address, and plaintiff said he did not, but could go to his house. Mr. Engel was present during the above conversation.

"Q. What, if anything else, occurred after they had been talking to you there?" A. Well, one of the officers back there walked kind of around over, and he said to Mr. Engel, and he says to him, "That man says he don't know that man's name,' He says, `What do you want us to do with him?' and he said something about taking him to headquarters, and let him tell it to the chief, and the officer turned and said to the other officer, `Tell him to put on his coat and hat and come down to the chief;' and the officer talking to me said, `Get on your coat and hat, and come down to the chief.'

"Q. Kleinsmith was talking to you, and Officer Heckel went to Engel, and Engel said to take him to headquarters, and let him talk to the chief? A. Yes, sir.

"Q. Now, who told you to put on your coat and hat? A. Officer Kleinsmith.

"Q. And did you put on your coat and hat?

A. Yes; I went to the hack end of the shop where my clothes hung, and got my coat and hat.

"Q. Now, in what manner did you leave the place, so far as the officers or Mr. Engel were concerned? A. Mr. Engel walked out first and the officers were behind me, and then they got on each side of me, and we got in the elevator, and one had me by the arm, and then, after getting out of the elevator one of them had me by the arm going across the street to their automobile."

They entered an automobile, which Engel drove. One officer sat by plaintiff in the rear seat, the other in the front seat with Engel. They drove to police headquarters. One officer had plaintiff by the coat sleeve and the arm when they went into the station and into the elevator. Engel accompanied them.

"Q. After you got into the chief's office, what took place? A. Well, the officers were standing alongside of me, and the chief walked over to me and he said, `What do you mean by trying to keep information from my men?' I said, `I am not keeping information; I gave them all the information I could give them.' He said, `Do you mean to tell me you sold that car and don't know the man's name you sold it to?' I said, `Yes, sir; he paid me cash for it, and I don't know his name; I didn't pay much attention to him.'

"Q. What other conversation took place there between you and the chief? A. Well, the chief said, `You know, I have got a mind to lock you up.' I said, `That is all right; you have me here; you can lock me up;' and they stood there a minute, and that was all the conversation that he had with me until the officers said to come along and go with them, and they had a little conversation with the chief along the side, and then they took me out again."

They took plaintiff back to the automobile and drove to one of the defendant's filling stations, where the officers and Mr. Engel got out. They came back with a couple of other men, and stood 10 or 12 feet in front of the machine talking to them a second and they both looked at plaintiff. Plaintiff couldn't hear what they said, but they shook their heads. They all (except the filling station men) then drove to the Sperreng-Oakland Automobile Company, and, the "force" there being out to dinner, they took plaintiff in the automobile to plaintiff's garage back of plaintiff's house, and looked at plaintiff's automobile. They then took plaintiff back to the Sperreng-Oakland Automobile Company, and plaintiff asked the salesman if he knew the name of the young man who tried out plaintiff's car for the man plaintiff sold it to, and the salesman knew where he worked and called him on the telephone.

"Q. What further conversation was had there about this automobile? A. Well, I don't remember of any conversation after that, but the two officers walked over and talked to Mr. Engel, and they had a little consultation, and Mr. Engel walked out the door and across the street and got in his car and drove away, and the officers walked over to me and said, `Well, Mr. Wright, I guess he found he made a mistake, and he is gone; we will have to let you go.'"

On cross-examination, plaintiff testified that he gave the Automobile Gasoline Company all the information he could give it; that he told the company he did not know who the man was that bought his car, but knew where his home was, and could go to his home; did not offer to go; they did not ask him to go.

"In the talk on the telephone I told him I didn't have any Dodge car; that it wasn't mine; that I sold it.

"Q. And then they asked you to whom you had sold it, and you told them you didn't know who it was, and didn't you hang up the phone then and there? A. Well, I suppose maybe I did; I don't remember. That ended the conversation."

H. C. Grenner, called by plaintiff, testified:

"I am Henry C. Grenner, president of the Automobile Gasoline Company that operates oil stations about St. Louis, and was its president on December 12, 1918, and Mr. Engel was in its employ at that time.

"Q. Did you and Mr. Engel have any conversation on the morning of December 12, 1918, pertaining to having some detectives go over to Mr. Wright's place of business on an investigation concerning some stolen books or gasoline books? A. I had no conversation with Engel in regard to the matter; I had a conversation with the chief of detectives. I told Engel to accompany me to the chief of detectives. I believe it was the morning of December 12th, about 10 or 11 o'clock. Mr. Engel, from my office, telephoned me that the boy was apprehended that had stolen the books, and I then inquired if they knew who the owner of the car was that presented the books. Mr. Engel informed me over the telephone that the supposed owner of the number of the car had absolutely refused to give any information. I was at...