Fleisher v. Ensminger , 140 Md. 604 ( 1922 )

On May 15th, 1920, Max Fleisher, the appellant, while in charge of the first floor of his store in Hagerstown, saw Josephine Ensminger, the appellee, who was employed as a saleswoman in said store, sell two hair nets, and drop the proceeds, twenty cents, in the pocket of her apron. It appears from the testimony that the rules of the establishment required the clerks, after making sales, to wrap up the merchandise sold and receive the money for it, before handing it to the customer, and then take the money to the cash register, ring it up, take the receipt or slip from the register, wrap it up with the merchandise, and then hand the parcel to the customer. There is a conflict of testimony as to whether appellee had been instructed in these rules, but she testifies that her practice was to do these things because she saw the other girls doing them. On this occasion, she says, she put the money in her pocket, because a lady was waiting for her to show her goods, and she did not stop to go to the cash register, intending to do so after waiting on the customer; that before she had time to do so she was sent for by appellant to go to his office on the third floor.

Fleisher testified that Hoffman, the manager of the first floor, came in right after the sale of the nets and the deposit of the money by Miss Ensminger in her pocket, and he told Hoffman to watch her pretty close and see if she would ring up the money before he called her to his office; that Miss Ensminger passed the cash register several times while he was talking to Hoffman, and before he left she passed over to the left and was folding some veils; that he then went to the second floor and from there to his office on the third floor and told the operator to call her to his office, and that she came in response to the call.

Miss Ensminger's account of the call to Fleisher's office and the subsequent occurrences was as follows:

That after Mrs. Heckert, the customer to whom she went after selling the nets, left the store, Robert Chatkins, an employee, told her Fleisher wanted to see her on the third floor and she said "all right," and she and Chatkins started to the elevator; that she had started for the register to ring up the twenty cents; that both of them went up in the elevator to the third floor; "we got off and he took me back to Mr. Fleisher's office, and on the way back to the elevator, I saw Mr. Marks coming through there on the first floor — he was getting the money from the registers and I said `why, there is Mr. Marks now,' and he said, `He will be up after awhile,' or something like that. We went on up and he took me back to Mr. Fleisher's office and he said `here she is,' as he opened the door, and Mr. Fleisher said, `tell her to come in.' I went in and he closed the door behind me, and Mr. Fleisher and Mr. Monday were in there." Monday, it appears, was janitor of the building and general utility man.

Continuing, the witness said: "Mr. Fleisher, as soon as I got in the door he said, `Miss Ensminger, how much money have you got in that pocket?' I said, `one dollar and twenty cents; the twenty cents is yours and the dollar is mine.' And then I started to tell him about where I got the twenty cents and the dollar and everything. I would go to say he would call me a liar and a thief. And then I told him that the twenty cents was for hair nets and the dollar was money that mother had given me to buy ribbons for the children. It was close to field day, and they had to have the ribbon for Monday morning, and I could hardly tell him, he kept hollering at me so loud and then calling me a damn liar and everything else. He called me a bastard and most everything else he could think of, and he asked me who my girl friends were, and I told him Miss Mower and Miss Darby, and he said, "Do they steal and lie like you do?" And I wanted to say no, and he kept hollering at me that I was a thief and everything like that, and he asked me what church I went to and I told him St. John's, and he asked me who my pastor was, and I said Reverend Harms, and he asked me how often I went to Sunday school and I said `most every Sunday.' I said, `unless I am sick.' Then he asked me what kind of hose I had on and I told him lisle. He said, `let me see,' and sort of leaned over his desk to see, and then said `you stole them and you have been stealing hose all along. How many pair of hose have you up home that you stole from me?' and I said, `I haven't any,' but he kept saying I was a thief and asked me what else I had up home that I had stolen from him, and I told him `nothing,' and he kept on calling me a thief. Then he asked me if I had a pocketbook, and I told him, `in my locker.' He asked me for my key and I told him that I had lost the key or mislaid it at home. I said I didn't know just where it was, so he asked Mr. Monday to go down and get my pocketbook, and Mr. Monday told him he would not go unless I went along. So he told me to go down with Mr. Monday, and we went down to the first floor on the elevator, and then we had to go down in the cellar like to the lockers, and Mr. Monday went along down with me and I got the pocketbook out of the locker, and he and I went upstairs on the elevator and we went to Mr. Fleisher's office, and I handed the pocketbook to Mr. Fleisher and he opened it and I had $6.21, and there was another piece of paper with a verse on it on one side and my sister's name on the other, and he looked at that and he said, `you stole this money, too,' and he asked me where I got the money and I told him that it was my pay for that week, what I had left of pay when we was paid on Friday night. * * * While we were down stairs, Mr. Fleisher had taken the $1.20 that I had in my pocket into Mr. Sach's office — that was another manager — so he went over there and got the $1.20, and he gave me the twenty cents and he said to take it down and ring it up on the cash register, and he said `here is the dollar, it isn't yours, but I will give it to you,' and I said, `all right' and he said, `go over in the lavatory in the alteration room and wash your face and don't tell anybody anything about it. Just go down and ring up the money and fix up your slips.' Then he asked me if I was coming back on Monday morning, and I said I didn't know." She further testified, that Fleisher said to her in his office, "Do you know what I could do with you? I could have you arrested." That it was over a half hour from the time she went to Fleisher's office until he said, "now you can go"; that while she was in the office she was crying; that she was scared and afraid she would be arrested or "something like that"; that Monday was standing over at the radiator at the side of the room when she first went up; that when she came back after getting the pocketbook, he stood at the door and that the door was closed by him. In answer to the question why she stayed in Fleisher's office, she said, "Because I had to." "Q. Why did you think you had to stay there? A. Because I was afraid to leave. He told me I was a liar and a thief and he told me he could arrest me and I was afraid to leave. Q. Why? A. I was afraid he would arrest me."

On cross-examination she said, when she was told that Fleischer wanted to see her in his office, she was willing to go to see what he wanted, and was satisfied to explain that she did not do what she was accused of doing. "I thought that if I would go he would have me arrested or something else. I don't know what he would do." In answer to the question whether she was satisfied to go down and get her pocketbook from her locker, she said, "Well, I was satisfied to go, but he had to tell me to go. He did tell me to go. He had ordered me to go." "Q. Did he tell you to go and were you satisfied to go? A. Under his orders I was. That is, I wanted to get the pocketbook to prove to him. Q. You were anxious to show him that you hadn't done what he accused you of doing? A. Yes, I wanted to show him. I was afraid if I didn't. He had told me he could have me arrested. Q. Did he tell you that before or afterwards? A. It must have been before, because that was my intention. That is the reason I went. Q. You wanted Mr. Fleisher to see just what money you had down in your locker? A. Yes, sir. Q. Now how far down did Mr. Monday go with you? A. He went clear down to the locker."

She had previously testified that she did not remember whether it was before or after she went to get her pocketbook that Fleisher told her he could have her arrested.

The plaintiff was corroborated by other witnesses as to much of the abusive language which she testified was used toward her by the defendant, all of which was denied by the defendant and several other witnesses. The plaintiff alone testified that defendant said he could have her arrested. Her other witnesses did not hear this; and defendant, and others testifying in his behalf, positively denied that anything of this kind was said. It also appears that a non pros of another suit was taken by the plaintiff when the court was about to direct a verdict for the defendant because of the absence of any such testimony.

This appeal is from a judgment in favor of the plaintiff. There are three bills of exception in the record. The first and second are to rulings of the court on testimony and are clearly unimportant. It is sufficient to say as to them that we find no error in these rulings. The testimony admitted over objections tended to show how the plaintiff came by part of the money which was in her pocket at the time the investigation was made by defendant.

The third is to the granting of plaintiff's first, second, third, and fourth prayers and to the overruling of defendant's special exception to plaintiff's second prayer; and to the rejection of defendant's first, second, third, and seventh prayers, and to the modification of defendant's fourth and sixth prayers.

The Reporter will set out all the prayers of defendant, and the granted prayers of the plaintiff, and defendant's special exception to plaintiff's second prayer.

Defendant, by his first prayer, sought to have the case withdrawn from the jury on the ground that under the pleadings there was no evidence legally sufficient to entitle the plaintiff to recover.

Any deprivation of the liberty of another without his consent, whether by violence, threats or otherwise, constitutes an imprisonment. Bernheimer v. Becker, 102 Md. 254.

And if this is done unlawfully, it is false imprisonment, without regard to whether it is done with or without probable cause. Lewin v. Uzeber, 65 Md. 341.

That being the law, we cannot say that there was no evidence in this case to go to the jury. Its weight, of course, was for them. The prayer was therefore properly refused.

His third prayer is not in a form which we could approve, and, even if otherwise unobjectionable, was calculated to confuse or mislead the jury. His seventh prayer was misleading without proper qualification.

Plaintiff's first prayer correctly defines "imprisonment" and is unobjectionable. Bernheimer v. Becker, supra.

Her third prayer presents the case fairly to the jury and requires the finding of every fact necessary to recovery. It was therefore properly granted.

Her fourth prayer is correct as a legal proposition, and was not specially excepted to.

We find no substantial objection to the court's modification of defendant's fourth and sixth prayers. As offered, the fourth denied the right of recovery if the jury should believe from the evidence that defendant was satisfied and willing to come to and remain at defendant's office, and to go to the cloak room and get her pocketbook, and then to return and remain at the office. The addendum merely told the jury that such satisfaction and willingness alone were not sufficient to defeat recovery if they were produced by the belief that if she did not do any of these things she would be arrested or force would be used. The modification simply qualifies the prayer as to the one proposition contained in it as offered. The majority of the court does not find that the prayer as modified was misleading when considered in connection with the other granted prayers.

His sixth prayer as modified simply told the jury that the facts set out in the original prayer were not alone sufficient to defeat recovery, if the detention or restraint of the defendant was accomplished by force or show of force. If there was any tendency in this prayer to mislead, it was cured by the granting of defendant's eighth and ninth prayers.

It remains to consider plaintiff's second and defendant's second prayers.

The special exception to plaintiff's second prayer was properly overruled.

The majority of the court holds that the omission from this prayer of any specific reference to the alleged threat of the defendant, implied from his alleged statement to the plaintiff "that he could have her arrested," and the rejection of defendant's second prayer, which specifically instructed the jury that the finding that defendant made such statement was necessary to recovery, were not prejudicial errors, in view of the full and fair presentation of the law as applicable to all the facts of the case in plaintiff's third prayer and in defendant's eighth and ninth prayers.

The majority of the court finding no prejudicial error in any of the rulings excepted to, the judgment will be affirmed.

Judgment affirmed, with costs to appellee.