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Gill v. Montgomery Ward & Co., Inc.

Supreme Court of New York, Appellate Division

April 2, 1954

DORA GILL, Respondent,
v.
MONTGOMERY WARD & CO., INC., Appellant.

Page 37

APPEAL from an order of the Supreme Court at a Trial Term (TAYLOR, J.), entered November 11, 1950, in Albany County, granting a motion by plaintiff to set aside a verdict in favor of defendant and against plaintiff of no cause of action, and granting a new trial.

COUNSEL

B. R. Sullivan, David L. Dickson and Maurice W. Coburn for appellant.

Arthur J. Harvey for respondent.

HALPERN, J.

The defendant appeals from an order of the Trial Term, setting aside a verdict of no cause of action in an action for false imprisonment. The trial court had set aside the verdict upon the ground that it had committed error in admitting certain evidence over the objection of the plaintiff.

The plaintiff had been employed by the defendant as a saleswoman in its store in the town of Menands in Albany County. The complaint alleged that, on January 24, 1948, store detectives in the employ of the defendant 'willfully, wrongfully, maliciously and forcefully' imprisoned the plaintiff and took her to the headquarters of the detectives in the store and detained her there against her will until she signed a statement which the detectives had prepared and 'for more than one hour

Page 38

thereafter'. The complaint alleged that by reason of the arrest, the plaintiff 'suffered great mental and bodily distress and was made sick' and 'was greatly injured in her character and reputation, all to her damage in the sum of * * * $25,000.00'.

The answer consisted solely of a general denial. No affirmative defense of justification was pleaded nor was there any plea in mitigation of damages.

According to the plaintiff's testimony upon the trial, the events which led up to the alleged false imprisonment were the following: There was a cloakroom at the rear of the store used by all the salesgirls. The plaintiff claimed that she saw a purse lying on the floor of the cloakroom and that she picked it up and put it under one of the boxes in which the salesgirls kept their personal belongings, in the belief that the purse belonged to a fellow employee and with the intention of returning it to her. The plaintiff claimed that she later asked the fellow employee whether she had lost the purse and, upon learning that she had not, the plaintiff removed the purse from the place where she had left it and was on her way to the service desk of the store to turn it in, when she was apprehended by the detectives employed by the defendant. It was proved upon cross-examination that the plaintiff signed a statement prepared by one of the detectives in which she admitted that she had taken the purse from its hiding place at the close of the business day with the intention of keeping the money in the purse and that she was about to leave the store to go home when she was stopped by the detectives. The plaintiff denied the truthfulness of the statement, although she admitted that she had signed it.

As part of its case, the defendant offered evidence that for some time prior to January 24, 1948, there had been complaints from employees about the loss of articles of apparel and money from the cloakroom. The plaintiff objected upon the ground that this had not been pleaded as part of the answer but the court overruled the objection and received the evidence 'on the subject of good faith, lack of malice and probable cause', as going 'to the question of damages'. The same objection was made upon several occasions during the trial and the same ruling was made by the court. Extensive evidence was admitted of prior episodes involving the loss of articles left in the cloakroom and the complaints made by the salesgirls and their efforts to apprehend the thief.

The salesgirls ultimately hit upon the plan of putting two marked dollar bills in a purse and ...


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