Bruce v. Meijers Supermarkets, Inc., Docket No. 9542

• Decision Date: 22 June 1971
• Docket Number: Docket No. 9542,No. 2,2
• Citation: 34 Mich.App. 352,191 N.W.2d 132
• Parties: Linda BRUCE, Plaintiff-Appellee, v. MEIJERS SUPERMARKETS, INC., a corporation, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 132

191 N.W.2d 132

34 Mich.App. 352

Linda BRUCE, Plaintiff-Appellee, v. MEIJERS SUPERMARKETS, INC., a corporation, Defendant-Appellant.

Docket No. 9542.

Court of Appeals of Michigan, Division No. 2.

June 22, 1971.

Released for Publication Nov. 3, 1971.

Robert W. Townsend, Fraser, Trebilcock, Davis & Foster, Lansing, for defendant-appellant.

Allan M. Charlton, Andrews, Stapleton & Harmon, Lansing, for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and O'HARA ^*, JJ.

O'HARA, Judge.

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 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, 151 N.W.2d 210. 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 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, 174 N.W.2d 765, 770; Bonkowski v. Arlan's Department Store (1968), 12 Mich.App. 88, 97, 162 N.W.2d 347.

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 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, 97 N.W.2d 16, 19.

'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, Inc. (1952), 94 Ohio App. 313, 316, 114 N.E.2d 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, 15 N.W. 899, 900, quoted in Bonkowski, supra, 383 Mich. p. 105, 174 N.W.2d p. 771.

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

DANHOF, Judge (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 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, 162 N.W.2d 347, 351, 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...