|||SUPREME COURT OF MISSOURI DIVISION 1
351 S.W.2d 729
|||November 13, 1961
|||JOHN VANNEMAN, A MINOR, BY HIS FATHER AND NEXT FRIEND, RALPH F. VANNEMAN,
W. T. GRANT COMPANY, A CORPORATION, RESPONDENT
|||From the Circuit Court of Jackson County; Civil Appeal From Action for
Damages (Monetary Recovery); Judge Joe W. McQueen; Reversed and remanded
|||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
|||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
|||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. 776, Sec. 67. 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. 770, Sec. 64; Comer v. Knowles, 17 Kan. 436, cited with approval
in Perry v. Kress & Co., 187 Kan. 537, l.c. 540.
|||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 garnisheed. After he brought it out I have a right to impeach his testimony
on that point." When the father was on the witness stand, the following
occurred while plaintiff's counsel was examining the witness:
|||"Q John is your grown son?
|||"Q You have three daughters?
|||"A Three daughters.
|||"Q Two of whom now live with your former wife and the other is in
|||"A That is correct.
|||"Q Could you just tell the jury and the Court in your own words how
you raised your son John?
|||"MR. WALSH: I object to that, it wouldn't have any bearing on this
|||"MR. SILKS: If your Honor please, one of the elements -
|||"THE COURT: I will sustain that for the reason he could go on and
on and tell how he raised his son. Ask him some questions.
|||"Q (By Mr. Silks) Are you close to your son John?
|||"A Very close.
|||"Q Do you do things together?
|||"Q Such as?
|||"A We hunt, fish, all sports, baseball, football games, we go to
or he participated in.
|||"Q Has that been true since he was a small lad?
|||"A Since he was a little boy."
|||By that evidence, plaintiff, whose purpose could have been only to impress
the jury, placed in issue the father's attitude toward the son. The evidence
with reference to the mother and plaintiff's sisters had no bearing on any
issue in the case. Defendant had the right to refute the evidence regarding
the father since he (the father) testified as to the relationship between
him and plaintiff. Plaintiff, by offering evidence concerning the good things
about the family, cannot now complain because the opposing party offered
evidence to the contrary. The sour must be taken with the sweet. On a retrial,
the evidence should be confined to the life of plaintiff. He is the person
directly concerned. Evidence relative to the lives of the other members
of the family should not be introduced.
|||Plaintiff based an assignment of error on a ruling of the court which
excluded evidence as to what the witness, then being examined, understood
the words spoken by Ripley to mean. The statements attributed to Ripley
were in our opinion ambiguous. The evidence should have been admitted. See
53 C.J.S. 311, Sec. 201b; Frank v. Herring, 208 S.W.2d 783, l.c. 788(2).
Defendant, to justify the ruling of the trial court, says, among other reasons
in the brief, that the question asked was leading and suggestive. We need
not decide whether that contention is correct because the case must be remanded
for the error in instruction No. 3. On a retrial, similar evidence may be
offered and we therefore ruled the question of admissibility of such evidence.
|||Instruction No. 2, given at defendant's request, of which plaintiff complains,
covered the defense of justifiable detention on the theory that there was
probable cause for Ripley's actions. This subject was considered at length
by this court in the case of Teel v. May Department Stores Co., 155 S.W.2d
74, l.c. 77, 78(1-3). What was said in that case should be a sufficient
guide on a retrial of this case. It may be noted that justification for
the detention of a person based on reasonable cause may be pleaded and by
instruction submitted to a jury provided there is evidence to justify such
|||For the reasons above indicated, the judgment of the trial court is reversed
and the cause remanded. It is so ordered.
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