Coleman v. Kroger Co.

• Citation: 371 So.2d 1186
• Decision Date: 16 April 1979
• Docket Number: No. 12564,12564
• Parties: Clarence S. COLEMAN, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana (US)

Page 1186

371 So.2d 1186

Clarence S. COLEMAN, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.

No. 12564.

Court of Appeal of Louisiana, First Circuit.

April 16, 1979.

Ralph W. Brewer, Michael W. McKay, Baton Rouge, of counsel, for plaintiff-appellee Clarence S. Coleman.

A. S. Easterly, III, Baton Rouge, of counsel, for defendant-appellant The Kroger Co.

Before CHIASSON, EDWARDS and SARTAIN, ^* JJ.

SARTAIN, Judge.

Plaintiff-appellee Clarence S. Coleman brought suit against The Kroger Company (Kroger) for damages arising out of his arrest and prosecution alleged to be the result of accusations made by Kroger employees acting within the course and scope of their employment. The jury found in favor of plaintiff; Kroger appeals.

Coleman was arrested on August 22, 1975, around 3:00 o'clock p. m. for theft of property belonging to Kroger. The property involved was five or six shopping carts and several hundred metal kick plates designed to attach to the bottom of the shelves in a Kroger grocery store. Coleman was subsequently tried for theft and acquitted.

According to the witnesses for Kroger, the facts leading up to Coleman's arrest were as follows. Four Kroger employees, Roger McDaniels, Marshal L. Wheat, Charles Buckely, and Robert Everingham, all of whom testified at trial, were traveling in a car on Acadian Thruway in Baton Rouge, having just left the Kroger grocery store located in the shopping center at the corner of Acadian and Perkins Road. One of the employees spotted plaintiff's truck carrying several shopping carts, which he was able to identify as Kroger's from the blue plastic signs on the handles. The truck was coming from an alley behind the Kroger store. Wheat, the driver of the car, pulled off the road near a stop light and waited for plaintiff to approach. When plaintiff stopped at the light, Wheat went up to the truck, identified himself as a Kroger employee, and asked plaintiff to return the Kroger property that he was carrying. Plaintiff responded that he had found the carts in the alley or in the ditch behind the store.

When the light changed, plaintiff continued along Acadian for about a block until he was able to pull into a parking lot. The four Kroger employees followed plaintiff into the parking lot thinking he was going to turn around and return to the Kroger store. Instead, after a short delay, he proceeded to travel north on Acadian away from the store. Again the Kroger employees followed him, this time for several blocks. Plaintiff at no time travelled at an excessive speed or made other evasive maneuvers.

When plaintiff apparently realized that he was being followed by the driver that had spoken to him earlier, he pulled off the road. As McDaniels approached, plaintiff asked why he was being followed, and McDaniels answered that he was carrying Kroger property and they wanted it returned. At that, plaintiff replied that they could have it and began throwing the carts out of the truck into the street. According to Wheat, plaintiff explained his actions by saying he thought the items had been discarded as trash. McDaniels went into a nearby office and called the police. A short time later a passing police car was flagged down. The police officer was told that plaintiff had taken Kroger property and was throwing it out of his truck. Plaintiff was arrested and subsequently spent ten hours in jail before being released on bond.

According to Wheat, broken shopping carts are often put in the alley behind the store to await repairs which are made at regular intervals. McDaniel explained that the metal kick plates plaintiff picked up had been removed from the shelves and stacked on wooden pallets in the alley so that the plates and the floor under the shelves could be cleaned before they were replaced.

Plaintiff Coleman substantially agrees with the narration of the incident as related by the Kroger employees, but his version differs in a few significant details. Plaintiff explained that on the day of his arrest he was in his pickup truck looking for scrap metal and trash in the Southdowns neighborhood, the commercial and residential area where the Kroger store was located. His truck had his name, occupation, address and phone number printed on the side. He testified that he found the metal kick plates in the large trash container behind Kroger's and that he picked up the shopping carts at various points along the streets in the Southdowns area. When Wheat approached him at the stop light and asked him to return the shopping carts, plaintiff was puzzled as to what he meant since he had picked the carts up in various locations. Seeking further explanation, he pulled into the next parking lot but since he did not see the Kroger employees follow him, he dismissed Wheat's request as a prank and continued on his way. When he later saw Wheat behind him, he stopped to find out what he wanted, and at this point he was admittedly aggravated. Only then did he notice for the first time that the shopping carts had Kroger labels. He thereupon began removing the items from his truck and told the Kroger employees they could have them but he was not going to return them.

One of plaintiff's witnesses was the arresting officer, Jerry McLin. He testified that he made the arrest on the information given him by McDaniels. McLin explained that he was told by McDaniels that McDaniels had seen plaintiff leaving the Kroger parking lot and had stopped him on the lot and requested that he return the carts. According to McLin, McDaniels said that although plaintiff then agreed to return the Kroger property, he instead drove away as soon as McDaniels turned his back. McDaniels denied that he had ever made such a statement.

Plaintiff's action is one for malicious prosecution. Such an action will lie only where there is concurrence of the following elements: (1) commencement or continuation of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause; (5) the presence of malice; and (6) damages. Johnson v. Pearce, 313 So.2d 812 (La.1975); Robinson v. Goudchaux's, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Insurance, 195 La. 347, 196 So. 554 (1940); Fontenot v. West Bros of Eunice, Inc., 343 So.2d 446 (La.App. 3d Cir. 1977).

The only elements contested on this appeal are malice and lack of probable cause. Appellant Kroger...