Bonkowski v. Arlan's Dept. Store

• Decision Date: 09 March 1970
• Docket Number: No. 14,14
• Citation: 174 N.W.2d 765,383 Mich. 90
• Parties: Marion BONKOWSKI, Plaintiff-Appellant and Cross-Appellee, v. ARLAN'S DEPARTMENT STORE, a New York corporation, and Earl Reinhardt, defendants-Appellees and Cross-Appellants, v. Gerald C. KAWECK, individually and d/b/a Security Police Service, Third-Party Defendant.
• Court: Michigan Supreme Court

Page 765

174 N.W.2d 765

383 Mich. 90

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

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

Service, Third-Party Defendant.

No. 14.

Supreme Court of Michigan.

March 9, 1970.

van Benschoten & van Benschoten, by Harvey E. ven Benschoten, Saginaw, for plaintiff-appellant.

Gussin, Weinstein & Kroll, by William J. Weinstein, Detroit, for defendant-appellee and cross-appellant, Arlan's Department Store.

Before and Entire Bench.

BLACK, Justice.

This damage action arose out of a security guard's accost and accusation of plaintiff as a suspected shoplifter from defendant Arlan's Department Store in Saginaw. The security guard died before the trial. The date of death does not appear. His testimony was not taken by deposition and so was not available for the issue of probable cause and such other issues as may during the trial have arisen under the 'excepting when it is proved' provision of P.A. 1958, No. 182. For this statute as it presently reads see C.L.S.1961, § 600.2917; Stat.Ann.1962 Rev. 27A.2917. We shall refer to it later. ¹

December 18, 1962, at about ten o'clock p.m., plaintiff and her husband left Arlan's after making some purchases. When she was about 30 feet beyond the door the guard, in some sort of uniform, called her back to a point near the door where he made certain accusatory statements and, with plaintiff's permission, examined the contents of her purse to ascertain whether certain jewelry had been stolen. The husband testified that the event occurred near enough to the door 'for everybody to hear him holler.' However, no other possible witness was known, recognized, or sworn. After it was learned that there had been no such theft, plaintiff and her husband departed. The entire incident lasted some 4 to 5 minutes. For further details see the opinion of Division 3 (Bonkowski v. Arlan's Dept. Store, 12 Mich.App. 88, 162 N.W.2d 347).

Plaintiff sued Arlan's and the security officer, Earl Reinhardt, for $450,000. Her complaint in 4 counts set forth these theories for recovery: Slander, false arrest, assault and battery, and invasion of privacy. Issues framed by the counts for slander and false arrest only were tried. The jury returned a verdict for plaintiff against Arlan's in the amount of $43,750, upon which judgment was entered. On appeal by Arlan's, ² Division 3 concluded that plaintiff's false arrest theory was sufficiently proven to make a jury issue, but that the publication element of her slander theory had not been proven. The judgment was ordered reversed with remand for new trial. Plaintiff's application for leave to review was granted here September 4, 1968.

First: We agree with Division 3 that the judgment of the circuit court should be reversed with remand for new trial. We disagree, however, with the conclusion reached by the seated judges that the record as made authorized submission to the jury of the issue of false arrest. Plaintiff's proof, tested by this Court's adoption in 1959 (People v. Gonzales (1959), 356 Mich. 247, 253, 97 N.W.2d 16) of the definition of 'arrest' appearing in 4 Am.Jur., Arrest, § 2, p. 5, leaves too many voids for any suggestion that Mrs. Bonkowski was arrested by Mr. Reinhardt. ³ See Judge Neal Fitzgerald's apt quotation of Hill v. Taylor (1883), 50 Mich. 549, 552, 15 N.W. 899 (12 Mich.App. 88, 96, 162 N.W.2d 347). Here the first and necessary element which is absent is proof of an intention to take the person accosted into custody. Absent an arrest there could have been no false arrest as charged. Furthermore, both in brief and oral argument, plaintiff's counsel unequivocally abandoned the charge of false arrest and concentrated upon contention that the count for slander was made submissible by the proof. Accordingly, upon retrial, the count for false arrest will be stricken and the trial will proceed solely upon plaintiff's count charging slander.

Second: We disagree with Division 3's view that plaintiff's proofs of the count for slander failed for want of 'the requisite element of publication.' Our view of the proof inclines toward that taken by the favorably-entitled plaintiff; the issue being whether there is proof of fair inference from proof that there was legal publication by what the guard said and did. That publication was made out, by the 'holler' of the guard within hearing of others (whether identified or not) and by the 'dramatic pantomime' or 'transitory gestures' which ensued within sight of others, is fairly established by predominant authority. See Bennett v. Norban (1959), 396 Pa. 94, 151 A.2d 476, 71 A.L.R.2d 803 and accompanying annotation (p. 808) 'Defamation by acts, gestures, pantomime, of the like.'; also authorities cited in the recent annotation, 'Defamation: Actionability of Accusation or Imputation of Shoplifting,' 29 A.L.R.3rd 961, and the still more recent case of Great Atlantic & Pacific Tea Co., Inc. v. Paul (1970), M.D.App., 261 A.2d 731.

We agree further with plaintiff that a defamation, though uttered or dramatized in the presence of one's spouse only, constitutes some evidence of publication. It is true as pointed out below that the husband knew she was innocent. But that fact does not dilute the fact of legal publication, or affect the cause except as it may bear upon the recoverable amount of the plaintiff's damages. We may fairly presume that, in the uneven course of marital life, the humiliation suffered by a plaintiff in like circumstances is more likely to be recalled--and brooded over--than if the event in question had occurred in the presence of strangers then and strangers forever. In short, there was legal publication to the husband. This brings us to questions that are likely to arise on retrial of plaintiff's count for slander.

Third: The most substantial question arising from plaintiff's counsel for slander and proof thus far submitted is whether she has overcome the privilege which at common law (Bufalino v. Maxon Bros., Inc., 1962, 368 Mich. 140, 117 N.W.2d 150, and cases therein cited) is qualifiedly enjoyed by those charged with slander, as in this case. In Bufalino Justice Kelly, writing for the Court, quoted and approved the general rule appearing in 33 Am.Jur., Libel and Slander, § 126, pp. 124, 125, 126 (p. 153). His opinion concluded (pp. 157, 158, 117 N.W.2d p. 158):

'A notice of justification is not evidence of malice and should not be treated as a republication of the libel and no facts are put in issue except those declared on (Wheaton v. Beecher, 79 Mich. 443, 44 N.W. 927); in an action of libel where it appears that the occasion is subject to a qualified privilege, the burden is upon the plaintiff to prove the untruth of the statements and actual malice (Van Vliet v. Vander Naald, 290 Mich. 365, 287 N.W. 564); where a privilege is qualified the communication is not actionable if made in good faith, and dishonesty of purpose may not be lightly inferred from acts which are just as consistent with good faith as with bad faith and if the circumstances relied on as showing malice are as consistent with its nonexistence as with its existence, the presumption of good faith has not been overcome (Powers v. Vaughan, 312 Mich. 297, 307, 20 N.W.2d 196).

'There is nothing in the record to prove that the report of investigation was prepared with an intention to injure plaintiff, nor is there proof of express or actual malice.

'The trial court correctly ruled that qualified privilege was not lost because of malice.'

Malice, in its common acceptation, means ill will toward some person. In its legal sense, it applies to a wrongful act committed intentionally against that person, without legal justification or excuse. To establish malice plaintiff called to the stand a former employee of the defendant Kaweck, one Anthony Zerlengo. We discuss Mr. Zarlengo's testimony since its purport and effect, if admissible (it came in without objection), is bound to arise on retrial.

Mr. Zarlengo testified that he was engaged as a 'floor walker' in defendant's Saginaw store. The incident in question took place just outside the store. He knew nothing of the incident but was questioned by plaintiff's counsel to establish that the defendant had set up a "Contest' for Most Arrests By Defendant's Security Guards.' The quoted terminology is that of plaintiff's counsel. Their brief describes--a bit expansively--the Zarlengo testimony:

"Because Earl Reinhardt, the guard who had stopped and searched Mrs. Bonkowski, died before the trial, plaintiff subpoenaed Anthony Zarlengo, the security guard who was working 'as a team' with Reinhardt in defendant's Saginaw store in December, 1962. Mr. Zarlengo told the jury that he knew district manager Falk, and that Mr. Falk had called him and his boss, Gerald Kaweck, into the office in December, 1962, and asked him 'to break the record' for apprehensions for that month of December, 1962. He wanted Zarlengo to do between '60 and 65' for December, and promised him a 'nice bonus' if he could 'break the record' for December. Zarlengo told the jury that he then broke the record by getting 75 arrests that month.

'Defendant Arlan's district manager, Mr. Falk, first said that he 'could have' talked to the stores' guards 'about the number of arrests They ought to make,' but then flatly denied that he ever did talk to them. Zarlengo's testimony, of course, tended to impeach Mr. Falk on this denial.' (Emphasis by counsel) ⁴

Later on in the course of his testimony, Zarlengo said that in one month (not shown to be the one in which the mentioned incident occurred) he had apprehended '60 or 65 people' and that all had 'actually shoplifted.'

The question naturally arising from the Zarlengo testimony is whether it constituted evidence of malice sufficient to carry to the jury, as against the rule of Bufalino,...