Daugherty v. Kuhn's Big K Store

663 S.W.2d 748, 1983 Ky. App. LEXIS 394
CourtCourt of Appeals of Kentucky
DecidedAugust 26, 1983
StatusPublished
Cited by9 cases

This text of 663 S.W.2d 748 (Daugherty v. Kuhn's Big K Store) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daugherty v. Kuhn's Big K Store, 663 S.W.2d 748, 1983 Ky. App. LEXIS 394 (Ky. Ct. App. 1983).

Opinion

MILLER, Judge.

This is an appeal from a judgment of the Graves Circuit Court entered upon a jury verdict in favor of the defendant in an action for false arrest and imprisonment.

On April 24, 1981, the appellant, Jesse Daugherty, and his wife went to the Kuhn’s Big K Store (hereinafter referred to as “Big K”) in Mayfield, Kentucky, one of the ap-pellees herein. After they had made the purchase of some white rocks, the appellant noticed some men unloading tomato plants from a truck and displaying them on the sidewalk in front of the store. Appellant [749]*749asked the price of the plants of one of the men who, not knowing this information, volunteered to go inside the store to find out.

Some time passed and the employee did not return. Afraid he would be late for work, the appellant went inside the store and asked a cashier for the price of the tomato plants. The cashier, not knowing the price, asked another cashier who informed her that the tomatoes cost sixty-six cents each. Appellant then paid for six plants and went back outside to pick them out and load them in his van.

In the meantime, Paul Strickland, the assistant manager with whom appellant had originally spoken about the plants, was in the back of the store attempting to get the price information. He returned to the front of the store in time to see the appellant load the plants in his van and drive off. Strickland assumed the appellant was stealing the plants and took down his license plate number and informed the store manager of his suspicion. The two then made some inquiries of the cashiers as to whether any plants had been sold; but no such inquiry was made of the cashiers who dealt with the appellant until after the police were called.

In route to their home, the appellant and his wife were pulled over by several police cars. Even though the appellant presented his receipt for the plants, a police officer required the appellant to return to Big K where he and his wife were detained for approximately thirty minutes.

When the appellant arrived at work that afternoon, word had already spread about the incident. He testified that since that day he has been known as the “Tomato Man,” and has frequently been called names and been booed in the lunch room at work. He has been teased about the incident at social functions and restaurants. The men he supervises have lost respect for him and, according to his testimony, he has become nervous and “awfully depressed” and “awfully ashamed.”

On May 4, 1981, the appellant filed his complaint against Big K and Nathaniel Welch, the manager of the Mayfield store, in Graves Circuit Court seeking damages resulting from the alleged unlawful detention and for the humiliation and embarrassment and mental anguish he suffered, as well as damage to his reputation, in the sum of $750,000.00. The appellees answered the claim by asserting that they acted with probable cause. KRS 433.236.

During the trial which commenced on September 22,1982, the court, after a hearing in chambers, allowed the appellees to question the appellant’s wife about her husband’s previous criminal record who testified that, to her knowledge, her husband had never had to appear in criminal court and never had pled guilty to any criminal charges. Thereafter, the court permitted the appellees to call the Graves District Court Deputy Clerk to the stand who testified that, approximately two years prior to the detention at Big K, the appellant had been charged under a warrant with a felony and had subsequently pled guilty to a misdemeanor, theft by deception under $100.00. This charge arose after a post-dated check issued by the appellant was presented for payment prior to the date thereof and was returned for insufficient funds.

The only issue herein is whether the trial court erred by allowing the appellees to introduce evidence of the appellant’s prior guilty plea to a misdemeanor.

The appellant argues that it was improper for the trial court to allow the appellees to introduce evidence of his prior guilty plea to a misdemeanor for the following reasons: CR 43.07 does not allow a party to be impeached by evidence of a particular wrongful act, except evidence of a prior felony conviction. Specific acts of misconduct are inadmissible under the foregoing rule as proof of character and reputation of parties in civil litigation. Doubtless the basis of the foregoing rule is that the value of such evidence is slight when compared to its prejudicial nature and the possibility of the jury’s misuse thereof. See Baker Pool Company v. Bennett, Ky., 411 S.W.2d 335 (1967), and Caulder v. Commonwealth of Kentucky, Ky., 339 S.W.2d 644 (1960).

[750]*750The appellees argue that the fact the appellant pled guilty to the misdemeanor “affects the measure of each and every element of damage appellant sought.” They contend the evidence is relevant and competent on the issue of damages, particularly those relating to emotional anguish. They also contend that the appellant cannot complain of the court’s failure to admonish the jury concerning the proper use of the evidence of the misdemeanor charge because he did not request an admonition.

The appellee concedes that the appellant “may be correct” in his belief that it is improper to impeach a witness with evidence of a prior misdemeanor conviction and certainly CR 43.07 so provides. However, while the evidence of appellant’s guilty plea directly contradicted the wife’s testimony on that subject, the evidence was not admitted for the purpose of impeaching Mrs. Daugherty, although that was its effect. During the hearing in chambers regarding this issue, the trial court announced that it was going to allow the evidence to be introduced for the purpose of establishing mitigation of damages to appellant’s reputation. Such is indicated by the following statement of the trial judge:

This is a man claiming his reputation has been damaged and I think you can show anything you can show about the reputation to refute that.

It is well settled in Kentucky that where damages are sought for injuries to reputation, evidence of the plaintiff’s bad reputation may be shown in mitigation of damages. See Louisville & N.B. Co. v. Owens, 164 Ky. 557, 175 S.W. 1039 (1915). See also Eastland v. Caldwell, 5 Ky. (2 Bibb) 21, at 24 (1810), which holds as follows:

In the estimation of damages, the jury must take into consideration the general character of the plaintiff and his standing in society ....
This appears to us to be the only correct and rational rule upon the subject; for while it affords the jury a fair opportunity of weighing the injury, it cannot take the plaintiff by surprise, as every man is presumed prepared to show his general character.

(A trite basis for the rationalization of the foregoing rule may be that if a man has no reputation then he is not likely to be injured in that area). It is, however, equally well-settled that such evidence of bad character may not include specific acts of the plaintiff’s conduct. Campbell v. Bannister, 2 Ky.L.Rptr. 72, 79 Ky. 205 (1880).

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663 S.W.2d 748, 1983 Ky. App. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daugherty-v-kuhns-big-k-store-kyctapp-1983.