Simpson ex rel. Simpson v. Revco Drug Centers of Missouri, Inc.

702 S.W.2d 482, 1985 Mo. App. LEXIS 3193

• Court: Missouri Court of Appeals
• Decided: March 12, 1985
• Docket: No. WD 34983
• Status: Published

Opinions

LOWENSTEIN, Judge.

Fourteen year old Pamela Simpson by a next friend brought a five count petition against the appellant Reveo for false imprisonment, malicious prosecution, battery, negligent hiring of a security guard and slander. As customers she and two friends entered one of Revco’s stores in Kansas City and did some shopping. Simpson was carrying a 14 month old child. She put a box of diet pills in her coat pocket and while the friends were paying for items, she walked past the cash register and sat on a bench just on the other side of a display, but still inside the front door. Fac-klam, a security guard, placed her “under arrest” for shiplifting and took her to the back of the store where an altercation occurred which both Simpson and Facklam say the other started. Facklam said she tried to hit him and run away. She said he grabbed her and threw her to the floor. (Afterwards she was seen briefly in an area hospital for bruises incurred in the scuffle.) As a result of the incident Simpson was handcuffed by Facklam and the Kansas City Police were called. A petition filed against Simpson in juvenile court was found in her favor and dismissed.

Simpson testified she intended to pay for the pills, when one of her friends finished checking out. This would allow the friend to take care of the child while Simpson paid. She was seated on the bench when Facklam approached, having made no effort to leave the store.

The slander count was dropped before trial. Simpson dismissed with prejudice the negligent hiring of Facklam count just before closing argument. This appeal by Reveo is from a jury finding of $25,000 in actual and $100,000 punitive damages on the false imprisonment count and like amounts on the malicious prosecution count. A verdict for Reveo was returned on the battery claim. Additional facts will be added to the appropriate point of error raised on Revco’s appeal which seeks to set aside the total judgment of $250,000.

This case was submitted to the jury in June, 1983. Instruction MAI 23.07 was given, which paraphrased requires: 1) defendant instituted a judicial proceeding; 2) defendant acted maliciously and without reasonable grounds; 3) Damage to the plaintiff. MAI 16.01 was also given which defines “malicious” as not meaning hatred, spite or ill will, but the intentional doing of a wrongful act without just case or excuse.

After argument here, Sanders v. Daniel International Corporation, 682 S.W.2d 803 (Mo.1984), was handed down. In Sanders, the court modified the elements of and instructions on actual and punitive damages for this cause of action. The supreme court has now adopted a standard of legal malice to support an award of actual damages. To receive actual damages a plaintiff must show the defendant acted with an intent to cause the harm, and not merely commit an act that causes harm. A plaintiff must show the defendant acted primarily for a purpose other than bringing an offender to justice and acted without reasonable grounds, at 814. As a result the court said paragraph second MAI 23.07, “... should be amended as follows: ‘Second, in so doing defendant acted primarily for a purpose other than that of bringing an offender to justice and acted without reasonable grounds.’ ”

The Sanders court changed to a higher degree the malice to support punitive damages. Id. 813. Actual malice or ill will, spite or grudge must be shown. As a result MAI 16.01 was amended to define “malice” as an act, “prompted or accompanied by ill will, spite or grudge ...” Id. 815.

The Sanders court did not state whether the changes it announced were to be applied retrospectively or prospectively, so that determination is based here upon whether the new rule is procedural or substantive. State v. Walker, 616 S.W.2d 48, 49 (Mo. banc 1981). If the new rule is substantive it is given both retrospective and prospective application. Id. at 49. Substantive matters generally create and define legal rights. Substantive law relates to rights and duties giving rise to a cause of action. Procedural changes aid and provide the machinery to protect substantive rights. Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 377 (1937).

It is arguable the Sanders changes could be either substantive or procedural. The eastern district in Shaffer v. Sears, Roebuck and Company, 689 S.W.2d 683, 686 (1985) construes Sanders as substantive and to be applied to a pending case on appeal. In Shaffer the court said any doubt on the question is resolved by the supreme court’s retransferring another case back to the eastern district to be re-examined in light of Sanders. (That case is Weniger v. Famous-Barr Company, Supreme Court, 686 S.W.2d 553 (Mo.1985). In Lucas v. Daniel International, 682 S.W.2d 820 (Mo. banc), a companion case to Sanders, and Weniger, the defendant, as here, made no direct attack on the elements of a cause of action for malice or the degree of malice to allow punitive damages. Those two cases, like this one were on appeal when Sanders was handed down. The motion for rehearing in Lucas, stressed the need for prospective application of Sanders, but was denied. Coupled with the transfer back of Weniger, leads to the conclusion the Missouri Supreme Court intended Sanders to be applied to cases then pending and retrospective in effect. This conclusion is reached despite the notion retrospective application should not be used, “except under the most compelling circumstances.” Keltner v. Keltner, 589 S.W.2d 235, 240 (Mo. banc 1979). See also State v. Shafer, 609 S.W.2d 153, 157 (Mo. banc 1980) where language in an opinion, as was used in Sanders, to the effect the then applicable instructions “can no longer” be used or followed generally refers to prospective application.

The decision in Sanders mandates a reversal of actual .damages on the count in this case of malicious prosecution and punitive damages in light of the instructional changes in Sanders, and a remand for new trial. This does not cause the same disposition for Simpson’s count on false arrest which preceeded the malicious prosecution count, and if applied can stand independently of the count on malicious prosecution. The rest of this opinion will deal with the points raised on and applicable to false arrest.

Counsel on appeal for Reveo did not participate in the trial. Their main point on appeal is a new trial should be granted because the trial judge allowed into evidence as sanctions under Rule 61.01, a list of arrest records and other unfavorable and inadmissible testimony about the guard Facklam. Since the case really turned on Simpson’s word against Facklam’s on what happened in the store, the question of, as sanctions, admitting the lengthly records of Facklam’s arrests is most important and will be taken up first.

I.

The case was filed in August of 1981, at which time Reveo manuals as to shoplifting, security, hiring in general and the specific hiring of Facklam were requested for production by the plaintiff. After several postponements by Reveo, in August 1982 the depositions of its employees were taken, but the promised documents were not produced. In October 1982, Simpson filed a motion to compel. In December of 1982, the court ordered the production of the documents after having met with counsel for each side. Within two weeks of trial, Simpson’s attorney wrote to Revco’s attorney again requesting the documents. The morning of trial, in April 1983, Reveo brought the manuals, but did not bring Facklam’s application saying the home office had reported it was illegible. It said the delay in production was an “oversight”. The actual box and bottle of tablets taken from Simpson had long since been lost.

Just before trial the court “as a sanction for failure to produce these documents” and as relevant to this appeal, allowed Simpson to mention to the jury the lack of cooperation of Reveo in producing the documents; struck from Revco’s answer a blanket allegation of contributory negligence as causing any act of Reveo. (Rev-co’s answer was filed by still another set of attorneys who apparently did not participate at trial); and, while ruling against Revco’s motion to keep out Facklam’s arrest record, allowed Simpson to refer to his arrests and A.W.O.L. matter with the military.

The arrest records introduced were lengthly, showing speeding tickets, child abandonment, bad checks, fraud, fighting and AWOL. The juvenile court file contained a stipulation that when Facklam applied for a private officer’s commission he had been untruthful. He testified he had lied on the Reveo application about his having been a high school graduate. His ex-wife testified he had struck her with his fist while she was pregnant and also he had used an alias on several occasions.

No objection was made at trial to any of the evidence, questions or argument related to the arrests, nor was any mention made of this impropriety in the motion for new trial or anytime before the case got here.

Reveo argues the allowance of improper evidence as a sanction, foreclosed and excused Reveo from raising an objection at trial when the improper evidence was introduced. Just as a criminal defendant can not let objection at trial go by because of adverse pre-trial rulings, Reveo should not be excused from making objection at trial to preserve the matter. The basic question is whether as a sanction the admissibility of arrest records, and questions about them amounted to plain error.¹ The general rule is evidence of a prior arrest is inadmissible. State v. Connell, 523 S.W.2d 132, 135 (Mo.App.1975).

The company should have objected to this evidence prior to introduction and the objection could have been made continuing one and done out of the presence of the jury. Just because this action on the admissibility of arrest records was done as a sanction did not relieve the company of the responsibility of making a record to preserve the matter. Because the court took the action it did, did not relieve Reveo of making an objection.

Reveo was not precluded from timely objection to the admission of the evidence. This is analagous to the court having interrogated a defense witness — defense counsel has a duty to make timely objection. Hilton v. Crouch, 627 S.W.2d 99 (Mo.App.1982); Bova v. Bova, 135 S.W.2d 384, 395 (Mo.App.1940).

Similarly, Reveo cannot be excused for its failure to raise this matter in the new trial motion which would have allowed the trial court to then rule on the point now raised by it on appeal.

Rule 84.13(c) review must control the ultimate issue on the admissibility of the arrest records. Was “plain error” committed here in which hatred, passion or prejudice was engendered causing manifest injustice or a miscarriage of justice? There is no quarrel with the impropriety of the admission as a sanction of otherwise improper evidence. The matter not having been preserved by objection or in the motion for new trial results in plain error review which makes the decision here a close case. When the case came down to the plaintiffs word against that of Fac-klam, the introduction of a string of arrests of Facklam could be most prejudicial. Even under Rule 84.13(c) review, such information could so prejudice the defendant’s case as to arise to a manifest injustice. Had plaintiffs counsel banged the defendant and its witnesses over the head with the most unfavorable character of Facklam’s arrests, or unduly emphasized them in argument, plain error would have been the inevitable result. Such was not the case here.

The record here contains other references to Facklam’s past and possible reflections upon his ability to tell the truth. Had Facklam otherwise been shown to be pristine, the introduction of the arrests would have kept this from having been a fair trial and would have worked a manifest injustice. Since the plaintiff’s version of what happened, if believed, could support a ver-diet in her favor a miscarriage of justice was not possible. A manifest injustice was not the product of this evidence only because the following evidence was before the jury: 1) Facklam had lied on the Reveo employment application and in his deposition as to his having graduated from high school, and about not knowing anyone at Reveo; 2) been untruthful as to his work performance and reasons for leaving two previous jobs; 3) on several occasions used an alias; 4) hit his pregnant wife with his fist; 5) not told he was behind $8767 in child support; 6) a different version of the facts than those shown on the police report; 7) a stipulation from the Juvenile Court of Facklam’s erroneous statements of prior law enforcement contacts on his application for a private officer’s commission. These matters coupled with Revco’s having: 1) lost evidence; 2) not produced Facklam’s original application; 3) produced the company documents sought to be discovered the day of trial; and, 4) not presenting any clerks or other company witnesses to the event in question, could have left the jury with the impression Facklam and Reveo were not credible in the case at bar.

As improper as the questions and comments about the arrests were, it was cumulative to evidence which showed Facklam’s character was less than savory. The jury could have reached the verdict it did without having been presented the improper evidence. Breshears v. Union Electric Company, 373 S.W.2d 948, 952-53 (Mo. banc 1964).

As was said by this court in Sherpy v. Bilyeu, 608 S.W.2d 521, 523 (Mo.App.1980), Rule 84.13(c) is rarely applied in civil cases and is reserved where a manifest injustice or miscarriage of justice has been caused. State ex rel. Missouri Highway and Transportation Commission v. McNary, 664 S.W.2d 589, 595 (Mo.App.1984); Davis v. Mathews, 649 S.W.2d 256, 258 (Mo.App.1983). Though this is a close case, it cannot be said the circumstances here engendered the hatred, passion or prejudice as a necessary prelude to plain error review. Executive Jet Management, etc. v. Scott, 629 S.W.2d 598 (Mo.App.1981). This point is denied.

Summarized and consolidated, the defendant Reveo next asks for a reversal because the trial court would not allow it to amend its answer to include § 537.125 RSMo 1978,² and for striking as a sanction the contributory negligence defenses from its answer. The contention is this action left Reveo defenseless on any issue of liability.

.The problem is there is nothing to show preservation of these arguments. Contrary to Rule 78.07, nothing in the motion for new trial mentions these points raised in the brief here. Rule 78.07 is to give the trial judge the opportunity to correct errors without the delay, expense and hardship of an appeal. Skelton v. General Candy Co., 539 S.W.2d 605, 610 (Mo.App.1976). See also Pruitt v. Community Tire Company, 678 S.W.2d 424, 429 (Mo.App.1984). Alleged instructional error arising out of these points is likewise not preserved. Pruitt, supra. As was done in the previous point plain error review under 84.13(c) will not prevail. The jury having returned a verdict favorable to Reveo on the battery count considered with the entire record does not rise to a finding of plain error on the remaining counts.

Reveo also challenges counsel for Simpson being allowed, as a sanction, to recite to the jury the delays encountered by her in receiving the manuals and documents requested in the motion. This issue, like the introduction of arrest records, is not preserved and is reviewed only as plain error. Normally, the court’s discretion is enforcing rules of discovery will not be disturbed unless done unjustly, In Re Marriage of Dickey, 553 S.W.2d 538, 540-41 (Mo.App.1977).

Although not deliniated as an order for failure to produce under 61.01(d), and under the applicable standard of review, the disregard of Reveo for authority served as a proper basis for this order. Cf. Portell v. Portell, 643 S.W.2d 18, 20 (Mo.App.1982). Reveo ignored its obligation under discovery rules, and after repeated notice made no attempt to comply until the day of trial. Russo v. Webb, 674 S.W.2d 695, 698 (Mo.App.1984). Since the rule allows for a judgment to be taken by default, plain error did not result from this order.

II.

In its last point Reveo points to the trial court’s committing error for entering a total judgment of $250,000 as the judgment was as a result of bias and prejudice requiring “substantial remittitur” or a new trial. Reveo says the excessive amounts followed inflammatory closing argument by the plaintiff’s attorney. This relates back to the issue of Facklam’s arrest records being in the case. A reading of the closing argument does not bear out this allegation.

Reveo goes on to say the $25,000 award of actual damages on each count is far beyond the evidence and greater than shown in other reported cases involving false arrest or malicious prosecution. Rev-eo states Simpson suffered minimal physical injuries and has not lost employment because of this incident. Although a close question, the $25,000 judgment for the false arrest, must be allowed to stand. Simpson suffered injuries, though minimal, had the physical confrontation with Fac-klam, along with being taken to the police station. As a matter of law it cannot be said this judgment was excessive. Keenoy v. Sears Roebuck and Co., 642 S.W.2d 665, 672 (Mo.App.1982).

The other prong of this argument is the award of $100,000 of punitive damages on this count is likewise excessive. The trial court’s refusal to alter these verdicts is affirmed. Punitive damages were properly submitted to the jury, and it was within their province to make such verdicts, to assess a penalty sufficient to punish Reveo and deter others. Holcroft v. Missouri-Kansas-Texas R. Co., 607 S.W.2d 158, 163-64 (Mo.App.1980). The jury was aware of the size and worth of Reveo, and had before it the elements of malice or positive wrongdoing. Id. at 164. “There is no fixed relation between the amount of actual (nominal) damages and the amount of punitive damages awarded.” Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 58 (Mo. banc 1981). Once decided as a matter of law the issue of punitive damages should go to the jury, the discretionary act will not be reversed except upon a clear showing of abuse of discretion. Id. at 58.

The judgment as to the false arrest count of $25,000 actual and $100,000 punitive damages is affirmed. Those portions of judgment on the malicious prosecution count, of $25,000 actual and $100,000 punitive damages are reversed and remanded for a new trial.

PRITCHARD and LOWENSTEIN, JJ. concur.

CLARK, J., dissents in separate opinion.

1 . As pertinent here Rule 61.01(d) reads as follows:

If the motion for inspection or production is granted and if the party against whom the order is entered fails to comply as stated, the court may, upon motion, make such orders in regard to the failure as are just and among others the following:

(1) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibit him from introducing designated matters in evidence.

(2) An order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or, rendering a judgment by default against the disobedient party.

2 . At the close of Simpson’s case, Reveo made an oral motion to add to the answer this statute, which, paraphrased allows a merchant who has reasonable or probable cause to believe a person has been shoplifting to detain them in a reasonable manner and to investigate without incurring a civil liability. The law also sets up a presumption of an intent to commit a wrongful taking of a person who willfully conceals unpur-chased merchandise.