Keenoy v. Sears

642 S.W.2d 665, 1982 Mo. App. LEXIS 3321
CourtMissouri Court of Appeals
DecidedOctober 5, 1982
DocketNo. 43002
StatusPublished
Cited by6 cases

This text of 642 S.W.2d 665 (Keenoy v. Sears) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keenoy v. Sears, 642 S.W.2d 665, 1982 Mo. App. LEXIS 3321 (Mo. Ct. App. 1982).

Opinion

STEPHAN, Judge.

Defendants appeal from a judgment in favor of plaintiff on claims for false arrest and malicious prosecution. Judgment was entered against both defendants in the amount of $5,000 actual and $10,000 punitive damages on the false arrest count and $10,000 actual and $50,000 punitive damages on the malicious prosecution count. We affirm.

[667]*667Plaintiff James Keenoy went to defendant Sears, Roebuck’s Crestwood Plaza department store in St. Louis County one night in April 1978. He was accompanied by his then fiance, Cindy Gonzales. Cindy and Keenoy separated shortly after entering the store. She was shopping for a gift for her sister, and Keenoy browsed around the hardware department. He picked up, from a display, a box containing a “router,” an electrical tool used in carpentry to finish beveled edges. Keenoy was a subcontractor engaged in the remodeling and renovation business. Keenoy left the hardware department carrying the boxed router under his arm. Defendant Zeis, employed by Sears as a security guard, pursued Keenoy into another department and caught up with him. Zeis was in plainclothes, and there was a dispute as to whether Zeis identified himself as a security guard and asked for a receipt for the router. A struggle ensued, involving Keenoy, Zeis, and other employees of Sears. Keenoy suffered injuries in the melee. Keenoy was handcuffed. A part-time Sears employee, Stephen Kruse, identified himself to Keenoy as a police officer. Keenoy agreed to stop struggling if the handcuffs were removed. Keenoy was taken to the store’s security office, searched, questioned by the police and detained there for a period of time which may have been as much as an hour.

Keenoy sought medical attention the next evening for injuries incurred in the struggle at Sears. He missed a week of work because of his condition. On the evening of the incident, Zeis spoke to the Crestwood Police Department about Kee-noy’s activities in the store, and the following evening he signed a complaint against Keenoy at the Crestwood city attorney’s office. On the basis of that complaint, a prosecution was initiated against Keenoy in Crestwood. Keenoy received an arrest notice and was charged with stealing under fifty dollars, tried, and acquitted. Cindy was charged by the City of Crestwood with common assault, apparently for her efforts to break up the struggle between Keenoy and Zeis. She was also tried and acquitted in municipal court.

Additional facts will be alluded to as they become necessary in the course of this opinion.

Appellants claim error in the refusal of the trial court to permit them to elicit testimony to the effect that at the time of the arrest in April 1978 Cindy Gonzales and the plaintiff were living together. Appellants argue that, since Cindy’s testimony was in conflict with that of defendant Zeis as to the necessity for and degree of force used by Zeis in detaining Keenoy, evidence of an intimate sexual relationship between Gonzales and plaintiff Keenoy could have shown bias on the part of Gonzales and tipped the scales of credibility in favor of Zeis. In appellant’s argument, the following appears: “If Mr. Keenoy’s account [which was essentially corroborated by that of Gonzales] is to be believed then Mr. Zeis’s behavior could be viewed as unreasonably hasty and violent and indeed of a character that might prejudice a jury against him and elicit an excessive verdict and an otherwise unwarranted award of punitive damages.” We find no abuse of discretion and, therefore, no reversible error in the trial court’s exclusion of evidence that Keenoy and Gonzales were living together in April of 1978.

Juries assess the credibility of witnesses. A close, personal relationship between a witness and a party could lead to biased testimony resulting from favorable emotions, McCormick on Evidence, 2nd ed. § 40 at 78. Missouri courts have approved of inquiry into, inter alia, friendship, affection, or sexual relations between a witness and a party for the purpose of showing partiality. Thornton v. Vonallmon, 456 S.W.2d 795, 798-799 [5, 6] (Mo.App.1970).

Although the trial court could limit, but not prevent entirely, inquiry into facts and circumstances tending to show bias, Thornton, 798, there was no such complete exclusion here. The trial court permitted testimony that the couple had been engaged for two years prior to the arrest, that Cindy had been prosecuted as a result of the incident, and that she had a civil claim similar to Keenoy’s pending against Sears at the time of this trial.

[668]*668Moreover, the trial court’s ruling did not expressly prohibit inquiry into whether Keenoy had ever had sexual relations with Cindy. Defense counsel made no such inquiry. The record does not show whether the trial court intended to preclude such inquiry. Defense counsel ventured no attempt to clarify or plumb the depth of the trial court’s prohibition. In Thornton, supra, the trial court refused to allow defense counsel in a civil suit to cross-examine plaintiff’s witness, one Baker, regarding the nature of his relationship with plaintiff. The Springfield Court of Appeals wrote that, “the trial court should have permitted some inquiry into the relationship which existed between Baker and the plaintiff, (Emphasis in original), including a reasonable inquiry into their sexual relations, if any, although we agree that counsel should not be permitted to inquire into specific acts nor show particular instances of illicit sexual relations by the testimony of other witnesses.” (Emphasis added). Thornton, 456 S.W.2d at 799[7].

We cannot conclude from the record that the trial court in the case at bar prevented inquiry into whether Cindy and Keenoy at one time had a sexual relationship. The admitted testimony that the couple had been engaged for two years at the time of the arrest was sufficient to alert the jury that the couple’s relationship had been closer than that of mere friends. Exclusion of evidence on their living arrangements was not an abuse of the trial court’s discretion.

Further militating against a finding of reversible error in the trial court’s exclusion of evidence concerning cohabitation is the fact that both testified that their romantic relationship had terminated well before the trial. No inquiry was made into the circumstances of the breakup and a jury might infer that the couple had developed predominantly bitter feelings toward one another by the time of trial. Indeed, it is possible that the more evidence the jury saw of former intimacy, the more readily it might infer present hostility between the two, such being common human experience. Given the ambiguous nature of the results of such romantic vicissitudes, the most significant evidence of possible bias in this case might well have been that Cindy had a claim against Sears similar to Keenoy’s. This was before the jury, and any suggestion of error by the trial court concerning evidence of the romance would be nugatory.

In their second point on appeal, defendants urge that the trial court erred in refusing to allow them to call a certain Mrs. Hand as a witness. Mrs. Hand was working in the sewing machine department on the lower level of the Crestwood Sears Store at the time of the altercation involving Keenoy. In his deposition, taken almost a year before the trial, defendant Zeis referred to a woman, in the sewing machine department,-whose name he did not know, who might have been present at the time of the incident.

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642 S.W.2d 665, 1982 Mo. App. LEXIS 3321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keenoy-v-sears-moctapp-1982.