Bruce v. Meijers Supermarkets, Inc.

34 Mich. App. 352 (1971) 191 N.W.2d 132 BRUCE v. MEIJERS SUPERMARKETS, INC. Docket No. 9542. Michigan Court of Appeals. Decided June 22, 1971. Andrews, Stapleton, & Harmon, P.C. (by Allan M. Charlton), for plaintiff. Fraser, Trebilcock, Davis & Foster (by Robert W. Townsend), for defendant. Before: DANHOF, P.J., and FITZGERALD and O'HARA,[*] JJ. O'HARA, J. The plaintiff brought this action for false arrest and imprisonment against defendant supermarket arising out of her alleged illegal detention by one of the defendant's employees. Following trial by a jury, a verdict for $1,500 was returned for plaintiff. On this appeal of right, defendant has alleged two errors. Initially, defendant asserts that the trial court should have granted its motion for a directed verdict *354 at the close of plaintiff's proofs or, in the alternative, when the motion was renewed at the conclusion of all the proofs. According to the settled practice in this state, the trial court must view all facts and legitimate inferences therefrom most favorably for the party against whom the motion has been sought. GCR 1963, 515.1; Accetola v. Hood (1967), 7 Mich App 83. It is claimed by the defendant that the record is devoid of any evidence of intention by its employee, Mr. Lingo, to make an arrest, and that the plaintiff, furthermore, returned voluntarily to the store in order to clear up the misunderstanding. Contrariwise, the plaintiff asserts that an examination of the record amply demonstrates the intention of Mr. Lingo to make an arrest when he accosted her and that he did, in fact, take her into custody. The following summary of the testimony is made on plaintiff's "favorable view" as that phrase has been precedentially used. On January 19, 1968, plaintiff was a customer in one of the defendant's stores in Lansing, Michigan. As was her usual practice, she took a cart to carry her prospective purchases. She then picked up two pairs of panties, placed them in her cart, and continued her shopping. Later, through inadvertence or otherwise, she laid these two items on a counter other than that at which they had been picked up. Thereafter, she completed her shopping and checked out with the cashier. After she had left the store, she was stopped by a man whom she had observed in the store on previous occasions. He asked her where she had put the articles he had observed on the cart but which were not among the items she had paid for when checking out. Although the man was not in uniform and did not show any *355 identification, the plaintiff assumed that he was an employee of the store. He made repeated requests that she return to the store and show him where she had put the merchandise. Plaintiff indicated that she wanted to leave because she felt ill and for the additional reason that her children would soon be coming home for lunch. Nonetheless, plaintiff voluntarily opened her purse and opened her clothing in an effort to prove that she had not taken the panties. Plaintiff estimates that the foregoing discussion encompassed approximately five minutes. Once the plaintiff complied with the employee's request and accompanied him back inside the store, she quickly found the panties lying on a counter adjacent to the lingerie display. She then left the premises without further ado. We believe we should, and we do — as both the Supreme Court and another panel of this Court have previously done — take judicial notice that shoplifting has reached "most serious if not unrestrained proportions". Bonkowski v. Arlan's Department Store (1970), 383 Mich 90, 103, 104; Bonkowski v. Arlan's Department Store (1968), 12 Mich App 88, 97. Given what the security guard observed himself, viz., that the customer picked up two articles of merchandise from a display counter and did not check them out with the cashier, we think the agent of the owner was entitled to question plaintiff and to ask that she return to the store with him. In so doing we think he committed no tortious act upon which a recovery could be had. We have reviewed the record with extreme care. No matter how favorably we view the testimony from plaintiff's standpoint, we can find no evidence that defendant's representative placed plaintiff under *356 arrest. Our Supreme Court in Bonkowski, supra, reaffirmed the definition of arrest which was set forth in People v. Gonzales (1959), 356 Mich 247, 253. "An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested." We are, of course, not unmindful that "arrest" in the language of the law has a variety of meanings depending on the attendant circumstances and the purpose thereof. The Ohio Court of Appeals in a case of striking similarity to the one at bar discussed "arrest" in this context and said, we think, significantly: "Nothing was done to indicate that she was being taken into custody, or that she was being held for delivery to a peace officer to answer a criminal charge." Lester v. Albers Super Markets (1952) 94 Ohio App 313, 316 (114 NE2d 529, 532). We hold as a matter of law that no arrest was made. Absent an arrest no false imprisonment could have occurred. "There can be no such thing as an action for false imprisonment where the plaintiff has not been arrested; and while, as has been held, manual seizure is not necessary, there must be that or its equivalent in some sort of personal coercion." Hill v. Taylor (1883), 50 Mich 549, 552, quoted in Bonkowski, supra, p 105. *357 For the reason herein stated, we are constrained to vacate the judgment entered upon the verdict of the jury and remand the cause for entry of a judgment of no cause of action. In view of this holding it is unnecessary to discuss any other issue. We do deem it appropriate to add the footnote which appears at the end of this opinion.[1] FITZGERALD, J., concurred. DANHOF, P.J. (dissenting). I dissent from the result reached by the majority, although I would reverse the judgment and remand for a new trial. In examining the record and construing the testimony and the legitimate inferences therefrom in a *358 light most favorable to the plaintiff, I agree with the trial court that while the proofs were not overwhelming in relation to the matter of arrest there was sufficient evidence to go to the jury. In Bonkowski v. Arlan's Department Store (1968), 12 Mich App 88, 96, this Court said: "From the facts of the incident established at trial, a jury could find such implicit coercion as would support a finding of that unlawful restraint of freedom of action which lies at the heart of a cause of action for false arrest." This is also true in the instant case. However, the trial court erroneously instructed the jury on the defendant's burden of proof. The instruction to which defense counsel made timely objection reads: "Now, the plaintiff, in order to recover here, must show that she was unlawfully arrested and imprisoned. And, secondly, that she suffered injury or damage as a result thereof. The burden is upon the plaintiff to prove those items by a fair preponderance of the evidence. The defendant store on the other hand, if the plaintiff meets her obligation and proves by a preponderance of the evidence the matters I have just enunciated to you, it then falls to the lot of the defendant to demonstrate by a preponderance of the evidence that probable cause existed to believe the plaintiff had committed or attempted to commit an unlawful taking of property that was for sale at the store; and, secondly, that its employees did not use unreasonable force, did not detain the plaintiff an unreasonable length of time, did not act with unreasonable disregard of her rights or sensibilities and did not intend to injure the plaintiff." The applicable statute, MCLA § 600.2917 (Stat Ann 1962 Rev § 27A.2917) reads: *359 "In any civil action against a merchant, his or its agent, for false imprisonment, unlawful arrest, assault, battery, libel or slander, if the claim arose out of conduct involving a person suspected of removing or of attempting to remove from a store without right or permission goods held for sale therein, where the merchant, his or its agent had probable cause for believing and did believe that the plaintiff had committed or aided or abetted in the larceny of goods held for sale in the store, no damages for or resulting from mental anguish and no punitive, exemplary or aggravated damages shall be allowed a plaintiff, excepting when it is proved that the merchant, or his or its agent used unreasonable force or detained plaintiff an unreasonable length of time or acted with unreasonable disregard of plaintiff's rights or sensibilities or acted with intent to injure plaintiff." This instruction was erroneous. See Bonkowski v. Arlan's Department Store (1970), 383 Mich 90. In order for the plaintiff to recover damages for mental anguish she has the burden, under the statute, of proving that the defendant's employee used unreasonable force or detained the plaintiff an unreasonable length of time, or acted with unreasonable disregard of plaintiff's rights or sensibilities, or acted with intent to injure the plaintiff. The burden is not upon the defendant to show a lack of unreasonable action. Reversed and remanded. NOTES [*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6 § 23 as amended in 1968. [1] MCLA § 600.2917 (Stat Ann 1962 Rev § 27A.2917) is not here involved since it deals only with a limitation upon damages recoverable when a cause of action has been sustained. However, as Mr. Justice BLACK pointed out in his opinion in Bonkowski, supra, the statute does not afford any substantive relief or achieve its apparent purpose. The opinion then quotes the Practice Commentary of Professor Carl S. Hawkins. We quote it again and include, as did the Supreme Court, the comment from § 120A Restatement of Torts 2d (p 202). "RJA § 2917 was derived from PA 1958, No 182, which was apparently intended to assure the merchant a measure of statutory relief. However, the statute does not give the merchant a privilege of reasonable detention as a complete defense, but rather precludes the recovery of damages attributable to mental anguish and punitive damages, if the merchant had probable cause for suspecting the plaintiff and did not use unreasonable force or detain him for an unreasonable length of time." * * * "120A. Temporary detention for Investigation "One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts." "Comment: "(a) The privilege stated in this Section is necessary for the protection of a shopkeeper against the dilemma in which he would otherwise find himself when he reasonably believes that a shoplifter has taken goods from his counter. If there were no such privilege, he must either permit the suspected person to walk out of the premises and disappear, or must arrest him, at the risk of liability for false arrest if the theft could not be proved."