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COLLYER v. S. H. KRESS CO. et al.*
Defendants appeal from an adverse judgment in an action for damages growing out of accusations of shoplifting. The sixth amended complaint upon which the case was tried was in two counts, one charging malicious prosecution, and the other false imprisonment. The jury found in favor of defendants on the former, and in favor of plaintiff on the latter, assessing his damages in the sum of $3,500. On motion for new trial the court made a conditional order reducing the amount of damages to $1,500, and plaintiff accepted the lesser amount. Among the grounds urged for reversal are insufficiency of the evidence and excessive damages.
The alleged shoplifting took place between 4:30 and 5 o'clock on Christmas eve in the basement of a department store in Oakland, operated by the defendant S. H. Kress Company. The store was crowded with customers at the time, and according to defendants' evidence, three persons, to wit, a customer, the store detective, Mrs. E. G. Croswell, and her assistant, Sidney Schwartz, saw plaintiff pilfer certain articles from the open counters on which they were displayed and put the articles in his overcoat pockets. He was intercepted at the main exit of the store, just as he was leaving, by Mrs. Croswell and Schwartz, and escorted back into the store to a room on the second floor for the purpose of investigating the matter. The testimony is conflicting as to what actually transpired after they entered the room. However, it appears without dispute that plaintiff was there accused of pilfering, and he denied the accusation, stating he had paid for all the articles in his possession. After considerable difficulty, lasting some twenty minutes, during which an attempt was made by Mrs. Croswell forcibly to search him, it was revealed he had in his possession the articles he was accused of having stolen, and he was asked to sign a statement to the effect that he had taken the articles without paying for them. Still insisting he had paid for the articles, he refused to sign the statement. Meanwhile the police had been summoned, and soon after their arrival, at the request of the store management, the police placed plaintiff under arrest and he was taken to the city prison, where he was searched, photographed twice, and fingerprinted; and about 8 o'clock that night he was released through arrangements made by his nephew with the store management. The day after Christmas, Mrs. Croswell swore to a criminal complaint charging plaintiff with petty theft; but a few weeks later a jury found him not guilty. At the time this happened plaintiff was seventy years of age, and until about a year prior thereto he had been for approximately six years a deputy constable and process server in Oakland. There is some evidence tending to show that he had been drinking when he entered the store, but he denied that such was the fact.
False imprisonment, as defined by section 236 of the Penal Code, “is the unlawful violation of the personal liberty of another”; and as appears from the decisions, a cause of action therefor may arise in a number of ways. It may grow out of an unlawful arrest made by an officer or private citizen without a warrant, or an unlawful arrest made by an officer with an illegal warrant or with a warrant illegally executed. Donati v. Righetti, 9 Cal. App. 45, 97 P. 1128. Or, aside entirely from an attempted arrest, such a cause of action may grow out of the unlawful detention of a person, such as restraining him of his liberty, even temporarily, by means of force or threats, express or implied, in a place where he does not want to go or remain; and such threats may be conveyed by conduct or words, including threats of arrest. Vandiveer v. Charters, 110 Cal. App. 347, 349, 294 P. 440.
The present case is one of alleged unlawful detention. In this regard the evidence shows without dispute that defendants themselves made no attempt at any time to place plaintiff under arrest as they might have done under the authority of subdivision one of section 837 of the Penal Code, which provides that a private person may arrest another “for a public offense committed or attempted in his presence.” Nor is the complaint based on any claim of an illegal arrest by defendants. As stated, the arrest was made by the police when they took plaintiff into custody at the end of the investigation in the room. Furthermore, it is well settled that the two causes of action, false imprisonment and malicious prosecution, are entirely separate and distinct from each other. Donati v. Righetti, supra. Both cannot exist on the same state of facts; or to put it more clearly, if one lies upon the facts, the other does not. Davis v. Pacific Telephone & Telegraph Co., 127 Cal. 312, 57 P. 764, 59 P. 698; Warfield v. Krueger, 96 Cal. App. 671, 274 P. 764. And it follows that since the jury in the present case found defendants liable only on the false imprisonment charge and exonerated them on the malicious prosecution charge, we are not here concerned with anything that occurred after plaintiff was taken into custody by the police (Mackie v. Ambassador Hotel, etc., Corporation, 123 Cal. App. 215, 11 P.(2d) 3), because at that time the detention of plaintiff by defendants ended.
The first question presented for determination is, therefore, whether under the circumstances the detention of plaintiff for the twenty-minute period during which he was detained by defendants for investigation was unlawful; and necessarily in determining that question, due consideration must be given also to the legal rights of the defendants.
In this regard, it is well settled that an owner of property, in the exercise of his inherent right to protect the same, may, under certain conditions, restrain any person who seeks to interfere with his property (11 R. C. L. 805); and in applying this fundamental doctrine, it has been held universally that if there be proof of theft legally sufficient to amount to probable cause, the property owner is justified in detaining the person suspected of stealing for a reasonable length of time in order to investigate the matter in a reasonable manner. Neither mere suspicion of wrongdoing, nor actual belief not based on reasonable grounds, however, will justify such detention; nor may the accused person be detained for an unreasonable time, or the investigation conducted in an unreasonable manner; and if these limitations are exceeded, the detention may amount to false imprisonment. See notes, 26 A. L. R. 1333, and 31 A. L. R. 314; also 25 Cor. Jur. 471; Jacques v. Childs Dining Hall Co., 244 Mass. 438, 138 N. E. 843, 26 A. L. R. 1329; Fenn v. Kroger Grocery & Baking Co. (Mo. Sup.) 209 S. W. 885. It is also held generally that the question of whether there was legal justification for the detention must be determined from the circumstances as they existed at the time of the detention. It does not depend upon the actual guilt or innocence of the person detained; and therefore, even though the person accused be subsequently prosecuted and exonerated, it does not follow that the detention amounts to false imprisonment. Davis v. Pacific Telephone & Telegraph Co., supra; Mackie v. Ambassador Hotel, etc., Corporation, supra; 25 Cor. Jur. 471.
The evidence here shows without contradiction that, in detaining plaintiff for investigation, defendants did not act on suspicion or groundless belief. As stated, they acted upon the positive statements of three persons that they had actually seen plaintiff pilfering. The evidence so introduced by defendants was, in substance, as follows: First, plaintiff was pointed out to the floorman of the store by a customer, who stated he had seen plaintiff take two neckties and a pair of suspenders and put them in his pocket without paying for them. Mrs. Croswell, who for fifteen years had been employed at the store as detective, was notified, and she went to the basement at once, where plaintiff was pointed out to her. Stepping up along side of him, close enough to touch his arm, she followed him about and saw him pilfer certain Christmas tree ornaments from the open counters and put the articles in his overcoat pockets. He first picked up an extension electric light cord strung with eight small sockets, and right afterwards took four small colored bulbs. Meanwhile he purchased a toy wagon and some additional bulbs, which, in conformity with a strict rule of the store, enforceable by summary dismissal of any employee violating the same, were wrapped by the sales girl and sales tags placed in the packages before they were delivered to plaintiff. Schwartz was standing nearby while Mrs. Croswell followed plaintiff about, and he too saw plaintiff reach for and take some of the bulbs. In so testifying, he stated that he was close enough to plaintiff at the time to observe that the tips of plaintiff's fingers on his right hand, with which he took the bulbs, were gone. Thereafter Mrs. Croswell and Schwartz kept plaintiff under surveillance while he made his way upstairs and to the exit door, and just as he stepped outside they stopped him and asked him to return into the store.
In our opinion the evidence above narrated is sufficient under the authorities above cited to establish legal justification for intercepting plaintiff as he was leaving the store and detaining him for investigation.
Plaintiff contends that probable cause is not available to defendants as a defense herein, and that consequently all evidence introduced by defendants for the purpose of showing justification for the detention must be disregarded. We find no merit in the point. The two cases mainly relied upon by plaintiff (Nelson v. Kellogg, 162 Cal. 621, 123 P. 1115, Ann. Cas. 1913D, 759; Neves v. Costa, 5 Cal. App. 111, 89 P. 860) grew out of unlawful arrests made under the authority of illegal process issued in civil actions. In later cases growing out of a certain class of unlawful arrests made without warrants, probable cause is recognized as a defense. Michel v. Smith, 188 Cal. 199, 205 P. 113; Mackie v. Ambassador Hotel, etc., Corporation, supra; Van Fleet v. West American Insurance Co. (Cal. App.) 42 P.(2d) 378; Allen v. McCoy, 135 Cal. App. 500, 27 P.(2d) 423, 28 P.(2d) 56. Here, however, we are not dealing with a case growing out of an unlawful arrest with or without a warrant. As above stated, defendants did not pretend to place plaintiff under arrest; and clearly under the authorities hereinabove cited, in cases such as this of alleged unlawful detention by private persons without an attempted arrest, justification for the detention may be interposed as a defense.
The next question arising is whether in making such investigation defendants detained plaintiff for an unreasonable length of time, or the investigation was conducted in an unreasonable manner. There is no substantial conflict in the evidence as to what was said and done on the way to the room to which plaintiff was escorted. Apparently plaintiff made no objection to returning other than to inquire why they wanted him, and in reply Mrs. Croswell told him he knew as well as they. Plaintiff declared, however, he did not know, and just as they were about to ascend the stairway leading to the room he stopped and demanded to know “what it was all about.” Mrs. Croswell replid, “Come on, you will learn later,” but plaintiff was not inclined to go further, until Mrs. Croswell threatened to call the police. He then stated she need not do so, that he would go along; and he did without further hesitation. There is a sharp conflict, however, as to what happened after they entered the room. According to the evidence introduced on behalf of defendants, the following occurred: Mrs. Croswell asked plaintiff to remove all of the merchandise from his pockets, and he refused to do so. She then asked him to produce the string of electric light sockets, which he refused also to do; whereupon she advanced toward him, saying, “Well, then I will take them out of your pocket”; but when she attempted to do so plaintiff resisted, and during the scuffle which followed, plaintiff grabbed her arm and twisted it, and then advanced toward her with his arm raised and fist clenched as if he were going to strike her. She called for help, and two or three other store employees responded. About the same time, unknown to plaintiff, Mrs. Croswell summoned the police; but before they arrived plaintiff reached in his overcoat pocket, took therefrom the disputed four electric light bulbs and string of sockets, which were not wrapped, and for which he had no sales tags, and throwing them on a couch in the room, said, “Here they are. If you think I didn't pay for them I'll pay for them again.” Mrs. Croswell then asked him to sign a document prepared and used by the Kress Company in such cases, to the effect that he had taken the articles described therein without paying for them; but plaintiff refused to sign the paper, or to give his name or address, telling her it was none of her business. It was about then that police inspectors Jewell and Trowbridge arrived; whereupon Mrs. Croswell told them in plaintiff's presence she had seen him pilfering, and how, after entering the room, he removed from his pockets the articles they had seen him pilfer and threw them on the couch; she also related to them the conversation which had taken place up to that time. The officers then asked plaintiff if he had any other articles in his pockets, and he replied he had not, whereupon they searched him and found the neckties and suspenders. They too were not wrapped, nor did plaintiff have any sales tags therefor. When plaintiff was asked to explain why the disputed articles were not wrapped and he had no sales tags for them, he replied merely that it was strange he could not purchase goods without having them wrapped and accepting sales tags therefor. Plaintiff's name and address were revealed when he was searched by the police, and Mrs. Croswell again sought to have him sign said document, but he refused to do so; whereupon the store manager, C. F. Clifford, who had entered the room while the investigation was going on, told Mrs. Croswell, in plaintiff's presence, that under the circumstances the only thing they could do was to cause his arrest; and accordingly, at Mrs. Croswell's request, the officers placed him under arrest, and he was taken to the city prison. The officers took with them also as evidence the string of light sockets and the four bulbs plaintiff was accused of having stolen.
Plaintiff's version as to what transpired after they entered the room was quite different. He stated that as soon as the door was closed Mrs. Croswell began calling him a “robber,” “thief,” and “skunk,” and said she wanted the things he had stolen downstairs; that she fairly screamed the words at him; that he replied he had purchased and paid for everything he had in his possession; that she then attempted forcibly to search him and he pushed her away with his hands, whereupon she screamed for help and ran out of the room; that she returned immediately, accompanied by other store employees and the manager; that she told the manager she had caught him, plaintiff, stealing, and that he refused to give up the stolen articles. Continuing, he stated he denied having stolen anything, and asked them to take him downstairs to the girl who waited upon him “and prove he had not paid for the articles,” but that they refused to do so; that Mrs. Croswell then produced the document he was asked to sign, but after reading it he refused to do so; whereupon the manager, after hesitating a moment, said to Mrs. Croswell: “If he don't give up those things we will have to make an example of him.” About this time, so he testified, the police inspectors arrived, and Mrs. Croswell told them he had taken some articles without paying for them and would not allow her to search him; whereupon they searched him and took from his pockets all of the articles in his possession; and shortly afterwards, acting under the manager's instructions, they took him to jail. Plaintiff denied he had placed the sockets and four bulbs on the couch before the inspectors arrived, or that he said he would again pay for them; but in apparent contradiction thereof Inspector Jewell and Clifford both testified that said articles were on the couch when they entered the room, and that the inspectors took from his pockets only the remaining ones. At the trial, in explanation of the possession of the unwrapped articles and the absence of sales tags, plaintiff stated that the neckties and suspenders were wrapped when he purchased them, but that on account of the crowd in the store it was inconvenient for him to carry so many packages, so he slipped the articles out of their wrappings into his pocket, and threw the wrappings away; and that upon purchasing the string of light sockets and additional bulbs he told the salesgirl she need not wrap them, that he would put them in his pocket, which he did; and that he had no recollection of having been given sales tags for either.
As will be seen from the testimony introduced by both plaintiff and defendants, despite plaintiff's persistent denials that he had stolen any of the goods he had in his possession, and his repeated assertions that he had purchased and paid for all of them, an attempt was made by the store employees forcibly to search him and coerce him, under threats of arrest, into signing a confession of guilt. It would appear, therefore, that the jury was warranted in concluding therefrom that defendants went beyond the legitimate bounds of an investigation and committed acts which amounted to an unlawful violation of the personal liberties of plaintiff, for which he was entitled to reasonable damages.
We are convinced, however, that the amount of damages awarded plaintiff, even as reduced by the trial court, is grossly disproportionate to any injury he may have suffered as the result of such excessive acts. No punitive damages were asked, nor did plaintiff plead any special damages; and as already pointed out, the cause of action of false imprisonment pursuant to which the award was made ended and the cause of action for malicious prosecution began at the close of the investigation in the room, and when plaintiff was taken into custody by the police. Such, apparently, was the position taken by plaintiff during the trial. But despite the adverse finding of the jury on the malicious prosecution charge, it would appear that, in assessing plaintiff's damages under the cause of action for false imprisonment, it took into consideration also and included in the amount awarded the elements of damage flowing from the malicious prosecution charge, and in doing so was influenced by a feeling of prejudice and passion generated by the thought, which counsel for plaintiff has stressed to a considerable extent on the appeal, that plaintiff was an old man of previous good character who had been jailed, photographed, and fingerprinted, prosecuted criminally, and eventually acquitted on a charge of having stolen 90 cents' worth of Christmas tree ornaments, on Christmas eve, from a chain store. And on this appeal counsel for plaintiff earnestly contends in support of the amount finally awarded that the matter of the incarceration, photographing, and fingerprinting of plaintiff, all of which occurred subsequent to the detention of plaintiff by defendants, are proper elements of damage under the false imprisonment charge. We are unable to sustain such contention. In view of the amounts awarded in like cases, as shown by the decisions, and especially in Vandiveer v. Charters, supra, wherein the circumstances were far more aggravated than those of the present case, it is our opinion that an award of $500 will fully and fairly compensate plaintiff for whatever damages he may have suffered as the result of the illegal acts committed by defendants during the twenty-minute period he was detained by them.
Defendants further contend that in any event the evidence fails to show that plaintiff was involuntarily “confined or imprisoned,” and that consequently there was no false imprisonment. There is no merit in the point. As above stated, the “imprisonment” may consist in restraining a person of his liberty even temporarily, by means of force or threats, express or implied, in any place where such person does not wish to go or remain; and that such threats may be conveyed by conduct or words, including threats of arrest. Vandiveer v. Charters, supra.
Nor do we find any error in the trial court's ruling admitting the testimony showing that upon entering the city prison plaintiff was searched, photographed, and fingerprinted. Such testimony was properly admitted in support of the cause of action charging malicious prosecution, which the jury decided in defendant's favor.
There is much force in defendants' contention that the allegations of the second cause of action were defective. But it appears that they had no difficulty in answering the same; consequently, it cannot be said they were misled or prejudiced thereby; and under such circumstances, the defects do not call for a reversal of the judgment. Section 4 1/212 art. 6, Constitution.
Therefore, in accordance with the conclusions above stated, and in conformity with the procedure followed in Shaffer v. Arnaelsteen, 54 Cal. App. 719, 202 P. 946, and the cases therein cited, it is ordered that the judgment herein be reversed, and the cause remanded, unless within thirty days from the filing of the remittitur in the trial court plaintiff shall remit from the judgment all except the sum of $500 and the costs already taxed; and if such remission be so made, then the judgment shall stand affirmed. Plaintiff will recover his costs of appeal.
KNIGHT, Justice.
I concur: TYLER, P. J.
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Docket No: Civ. 9253.
Decided: April 27, 1935
Court: District Court of Appeal, First District, Division 1, California.
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