619 S.W.2d 326 | Mo. Ct. App. | 1981
Appeal from a judgment of false imprisonment and award of $10,500 actual damages and $20,000 punitive damages. Defendant appeals. We reverse.
The evidence shows that at the time of the alleged false imprisonment plaintiff was eighteen years old and pregnant. Plaintiff was sent to the Zayre store by her mother. Plaintiff had been instructed to complete the purchase of items which her mother had placed in the store’s lay-away department. Plaintiff was driven to the store by a neighbor, Mr. Taylor, and was accompanied by her two sons, ages 1 and 3 years, and by her 14 year old brother. Upon entering the store plaintiff proceeded to the lay-away department. When it was plaintiff’s turn she handed the clerk the lay-away receipt which her mother had given her. Plaintiff claimed that in addition to the items listed on the lay-away receipt, the clerk handed her a box containing a Caleco hockey set. This item, as boxed, was approximately as large as the counsel’s table in the trial court. Plaintiff accepted this item, she argued, because she did not know exactly what was to be picked up
At trial the court submitted plaintiff’s punitive damages instruction.
If you find the issues in favor of plaintiff, and you believe the conduct of defendant as submitted in Instruction No. 3 (plaintiff’s verdict directing instruction) was wilful, wanton, or malicious, then in addition to any damages to which you find plaintiff entitled under instruction No. 5 (plaintiff’s actual damage instruction), you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and deter him and others from like conduct.
It is undisputed that plaintiff failed to submit the instruction which defines “malicious,” MAI 16.01. Defendant alleges that the failure to submit MAI 16.01 constitutes prejudicial error.
It is well settled in this jurisdiction that punitive damages may be recovered in cases of false imprisonment where the captor acts maliciously. Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687, 689-690 (1939). It is equally well entrenched that when punitive damages are sought pursuant to MAI 10.01, “malicious” must be defined in its legal sense. MAI 10.01, Notes on Use (1977 Revision). . Thus, the failure to submit the instruction which defines “malicious,” MAI 16.01, was error.
Plaintiff contends the judgment should stand because the error of failing to define malicious was not prejudicial. “In determining the prejudicial effect of the omission, we can and should consider the totality of the circumstances including the nature of the evidence and the arguments of counsel.” Floyd v. Brenner, 542 S.W.2d 325, 328 (Mo.App.1976). An extremely important circumstance in this case is that MAI 16.01 sets forth in clear and explicit language that “[t]he term ... ‘malicious’ ... as used in ... these instructions does not mean hatred, spite or ill will, as commonly under
Defendant also argues the trial court erred in overruling its motion for directed verdict and after trial motion to enter judgment in accordance with the motion for directed verdict because plaintiff’s pleadings and evidence established that plaintiff had released defendant from any liability arising out of plaintiff’s detention. Plaintiff claims the release was obtained by duress and it’s therefore voidable. Under the circumstances presented defendant’s contention is without merit. However, upon retrial, if plaintiff intends to rely upon this theory, duress should be pleaded. Rule 55.08. Further, the question whether the release was in fact obtained by duress should be submitted to the jury. Because there is no Missouri Approved Jury Instruction directly applicable plaintiff will need to construct an instruction on the issue of whether the release was obtained by the exertion of duress on plaintiff.
Defendant’s other points on appeal need not be addressed as they are not likely to occur upon retrial.
Reversed and remanded for new trial.
. Defendant has not raised nor do we address the issue of whether the facts warranted submission of an instruction requesting punitive damages.
. We direct plaintiff to MAI 32.22 and the Notes on Use thereunder. MAI 32.22 instructs on the issue of whether fraud was employed to obtain a release. Plaintiff may desire to modify this instruction so that it properly sets forth the elements of duress. Further, if upon retrial plaintiff admits she signed the release the instruction on duress should be added to plaintiffs verdict director rather than be separately given. MAI 32.22, Notes on Use (1978 Revision).