Jacques v. Sears Roebuck & Co.

Hehby, J. In this action for false arrest and imprisonment defendants pleaded and proved and the jury found that there were reasonable grounds for detaining plaintiff and that the detention was for a reasonable time. “ Section 218 of the General Business Law makes reasonableness of arrest available to retail stores and their employees as a defense to civil false arrest suits ” (People v. Horman, 22 N Y 2d 378, 380, cert. den. 393 U. S. 1057), and when they “ have reasonable grounds for suspecting a person of having in his possession unpurchased merchandise * * * such person may be detained in a reasonable manner for a reasonable time for the purpose of making an investigation ” (Roker v. Gertz Long Is., 34 A D 2d 680). The law gives a storekeeper this defense to an action for fal-se arrest when he has reasonable grounds to believe that the plaintiff was committing or attempting to commit larceny. The question here is not whether the arrest was lawful or unlawful but is whether plaintiff was arrested and detained in a reasonable manner and detained for not more than a reasonable time. Plaintiff selected several items of merchandise in defendant Sears Roebuck & Company’s (Sears) self-service store. He put some of them in his pocket and did not exhibit them to the store cash register operator. When he left the store without paying for them defendant Varisco, a Sears security guard, who had observed his actions told him that he was under arrest and asked him to surrender the articles that were in his pocket. Plaintiff gave them to Varisco and went with him to Sears security office where he wrote answers on a printed questionnaire disclosing that he had taken merchandise that he had not paid for, that the interview in the security office lasted 10 minutes and that the company representative had acted reasonably. Plaintiff was taken from the store by a police officer. He was charged with petit larceny and released on bail. Thereafter the charge against him was dismissed on motion of the District Attorney. There being no allegation of. malicious prosecution nor allegation or proof that defendants procured or instigated an unlawful arrest by the police officer, detention of plaintiff by defendants terminated when the police officer [123] took plaintiff into custody. (Francis v. Taft Cleaners & Dyers, 281 App. Div. 893.) The record clearly establishes that plaintiff was arrested and detained by defendants in a reasonable manner and for not more than a reasonable time. The Trial Judge correctly charged the jury: “ If you find under the General Business Law this detention was reasonable, you cannot award the plaintiff any damages for the time he was taken into custody by Mr. Varisco and turned over to the police officer”, and submitted questions to the jurors which they were directed to answer when they reported their general verdict. The jurors unanimously answered “yes” to the question “ Was Mr. Henry Jacques detained for a reasonable time at Sears Roebuck & Co. and were there reasonable grounds to detain him? ”, but they also announced a general verdict in favor of plaintiff in the amount of $1,600. The answer to the quoted special question was inconsistent with the general verdict. The trial court could have directed the entry of judgment for defendants dismissing the complaint in accordance with the answer to the special question or it could have required the jury to consider further its answers and verdict or it could have ordered a new trial. (CPLR 4111, subd. [c].) The trial court failed to act in accordance with any of the procedures specified in CPLR 4111 (subd. [c]) but instead denied defendants’ motion for judgment in accordance with the special finding and erroneously rendered judgment on the general verdict for plaintiff. Considering the overwhelming evidence in support of the jury’s special finding, the trial court should have directed the entry of judgment for defendants dismissing the complaint. Upon this appeal from the order of County Court determining the appeal from the City Court judgment we review questions of law and fact (CPLR 5501, subd. [c]) and in disposing of the appeal we may reverse, affirm or modify the order and render a final determination (CPLR 5522) “ and on such review [we are] empowered to and should render such judgment as should have been granted by the trial court ”. (Humble Oil & Refining Co. v. Jaybert Esso Serv. Sta., 30 A D 2d 952.) The order appealed from should be modified to provide that judgment be entered in favor of defendants dismissing plaintiff’s complaint.