Bonkowski v. Arlan's Dept. Store

• Decision Date: 26 June 1968
• Docket Number: Docket No. 3666,No. 3,3
• Citation: 162 N.W.2d 347,12 Mich.App. 88
• Parties: Marion BONKOWSKI, Plaintiff-Appellee, v. ARLAN'S DEPARTMENT STORE, a New York corporation and Earl Reinhardt, Defendants-Appellants, v. Gerald C. KAWECK, individually and d/b/a Security Police Service, Third-Party Defendant
• Court: Court of Appeal of Michigan — District of US

Page 347

162 N.W.2d 347

12 Mich.App. 88

Marion BONKOWSKI, Plaintiff-Appellee, v. ARLAN'S DEPARTMENT STORE, a New York corporation and Earl

Reinhardt, Defendants-Appellants, v. Gerald C. KAWECK, individually and d/b/a Security Police

Service, Third-Party Defendant.

Docket No. 3666.

Court of Appeals of Michigan, Division No. 3.

June 26, 1968.

Released for Publication Nov. 22, 1968.

John P. Purcell, Heilman, Purcell, Tunison & Cline, Saginaw, for defendant-appellants; William J. Weinstein, Detroit, of counsel.

Van Benschoten & Van Benschoten, Saginaw, for plaintiff-appellee.

Before FITZGERALD, ^* P.J., and BURNS and NEAL FITZGERALD, ^* JJ.

NEAL E. FITZGERALD, Judge.

This appeal from a jury verdict for false arrest and slander, rendered against the defendant store whose agent stopped and questioned the plaintiff whom he suspected of larceny, surprisingly presents questions that are novel to the appellate courts of this jurisdiction.

The plaintiff, Mrs. Marion Bonkowski, accompanied by her husband, had left the defendant's Saginaw, Michigan store about 10:00 p.m. on the night of December 18, 1962 after making several purchases, when Earl Reinhardt, a private policeman on duty that night in the defendant's store, called to her to stop as she was walking to her car about 30 feet away in the adjacent parking lot. Reinhardt motioned to the plaintiff to return toward the store, and when she had done so, Reinhardt said that someone in the store had told him the plaintiff had put three pieces of costume jewelry into her purse without having paid for them. Mrs. Bonkowski denied she had taken anything unlawfully, but Reinhardt told her he wanted to see the contents of her purse. On a cement step in front of the store, plaintiff emptied the contents of her purse into her husband's hands. The plaintiff produced sales slips for the items she had purchased, and Reinhardt, satisfied that she had not committed larceny, returned to the store.

Plaintiff brought this action against Earl Reinhardt and Arlan's Department Store, seeking damages on several counts. She complains that as a result of defendant's tortious acts she has suffered numerous psychosomatic symptoms, including headaches, nervousness, and depression. Arlan's Department Store filed a third-party complaint against Earl Reinhardt's employer, Gerald Kaweck, doing business as Michigan Security Police Service, who defaulted. On the counts of false arrest and slander the case went to the jury, who returned a verdict of $43,750. The defendant's motions for judgment notwithstanding the verdict, remittitur, and new trial were denied by the trial court.

Numerous errors are alleged on appeal; we consider those necessary to the disposition of the case.

We conclude the plaintiff established a case entitling her to go to the jury on a charge of false arrest. ¹ But we conclude on the record before us that the cause of action on the ground of slander was not established with legal sufficiency because, as will be discussed infra, the proofs were not adequate to permit a jury's finding of publication, an essential element of a cause of action for slander. ² Therefore, there must be a new trial.

We first consider briefly the issue whether defendant, Arlan's Department Store, can be held responsible for the acts of Earl Reinhardt, ³ the private policeman employed by Michigan Security Police Service. Defendant Arlan's Department Store had contracted with the third-party defendant to provide private police protection in its Saginaw store. The record makes it clear that the apprehension of shoplifters was within the scope of Earl Reinhardt's authority and that, during the time he was on duty in the defendant's store, his activities were under the direction of Arlan's supervisory employees. Therefore, we agree with the learned trial judge that Earl Reinhardt, with respect to the incident giving rise to this action, was acting within the scope of his authority as the agent of Arlan's Department Store, which must respond for his acts. ⁴

Defendant contends the charge of false arrest was erroneously allowed to go to the jury. There is dispute whether or not the judge's final instruction to the jury actually included the charge of false arrest. We think it did. The trial court, in setting forth the claims of the parties to the jury, said:

'Briefly, this is an action brought by the plaintiff against the Arlan's Department Store in which she claims damages for Slander and False arrest, and before the attorneys introduce any evidence, each of the attorneys will make a full and fair statement of their case and the facts they intend to prove, but I merely briefly tell you what this case is about. The Arlan's Department Store denies any Slander or False arrest and therein lies the issue which you people are to decide.' (emphasis supplied)

And we find in the trial judge's clear and careful instruction to the jury at the close of the evidence:

'Defendant Arlan's Department Store claims that if Earl Reinhardt did stop the plaintiff that according to her testimony he only detained her for a period of four minutes and Did not attempt to arrest her.' (Emphasis supplied.)

Although the trial court in its final instruction to the jury did not elaborate on this charge of false arrest that it had mentioned to the jury at the outset of the case and early in the charge, nevertheless at no point did the court remove the charge from the jury's consideration, and therefore we conclude that in fact the charge of false arrest was left to them for consideration in their deliberations.

When Reinhardt called to the plaintiff to stop, he was clothed in the blue and black of a police officer, ⁵ and was wearing a badge inscribed 'Michigan Security Police'. ⁶ These are facts warranting submission to the jury of the charge of false arrest.

Hill v. Taylor (1883), 50 Mich. 549, 15 N.W. 899, argued by defendant, although not factually on point since it involved the problem of an arrest by a police officer on an invalid warrant, nevertheless provides Dictum of Justice Campbell useful to our consideration of the issue of false arrest involved here. Justice Campbell said:

'There can be no such thing as an action for false imprisonment ⁷ 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.' 50 Mich. 549, 552, 15 N.W. 899, 900. (Emphasis supplied.)

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. See also Justice Campbell's opinion in Brushaber v. Stegemann (1871) 22 Mich. 266. Therefore on remand this allegation may go to the jury in accordance with the rule we now set down.

To the common-law tort of false arrest, privilege is a common-law defense, and we recognize as applicable here a privilege similar to that recognized by the American Law Institute in the Restatement of Torts, 2d. In section 120A, the Institute recognizes a privilege in favor of a merchant to detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully. We adopt the concept embodied in section 120A, and we state the rule for this action as follows: if defendant Arlan's agent, Earl Reinhardt, reasonably believed the plaintiff had unlawfully taken goods held for sale in the defendant's store, then he enjoyed a privilege to detain her for a reasonable investigation of the facts.

The Commissioners' comment states the strong reason behind recognizing such a privilege:

'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.' 1 Restatement of Torts, 2d, page 202.

That the problem of shoplifting, faced by merchants, has reached serious dimensions is common knowledge, and we find compelling reason to recognize such a privilege, similar to that recognized in other jurisdictions. Collyer v. S. H. Kress & Co. (1936), 5 Cal.2d 175, 54 P.2d 20; Montgomery Ward & Co., Inc., v. Freeman (CA4, 1952), 199 F.2d 720.

In Montgomery Ward & Co., Inc., v. Freeman, the United States Court of Appeals for the Fourth Circuit, in a case arising in Virginia and involving a detention considerably longer than the detention here of Mr. Bonkowski, reversed a verdict for the plaintiff because of the trial court's too narrow instruction on the point of justifiable detention and sent the case back, stating that 'the instruction should submit the reasonableness of the detention to the jury and should set out the facts which, if found, would constitute reasonable grounds for the defendant's conduct.' 199 F.2d 720, 724. ⁸

The privilege we recognize here goes beyond that set forth in the Restatement, for the Commissioners there stated a caveat that 'the Institute expresses no opinion as to whether there may be circumstances under which this privilege may extend to the detention of one who has left the premises but is in their immediate vicinity.' 1 Restatement of Torts, 2d, page 202.

In their comment, the Commissioners state that, by their caveat, in the absence of express authority, they intended to leave the question open. 1 Restatement of Torts, 2d, page 204. We think the privilege should be so extended here because we think it entirely reasonable to apply it to the circumstances of the case at bar, for the reason that a merchant may not be able to form the reasonable belief justifying a detention for a reasonable investigation before a...