Dangberg v. Sears, Roebuck & Co.

• Decision Date: 06 April 1977
• Docket Number: No. 40946,40946
• Citation: 252 N.W.2d 168,198 Neb. 234
• Parties: Ellen M. DANGBERG, Appellant, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 168

252 N.W.2d 168

198 Neb. 234

Ellen M. DANGBERG, Appellant, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellee.

No. 40946.

Supreme Court of Nebraska.

April 6, 1977.

Syllabus by the Court

1. A petition which fails to plead actionable facts is vulnerable to a general demurrer.

2. A general demurrer tests the substantive legal rights of the parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from the facts which are pleaded.

3. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object or a lawful object by unlawful or oppressive means.

4. A communication is privileged if made bona fide by one who has an interest in the subject matter to one who also has an interest in it, or stands in such relation that it is a reasonable duty or is proper for the writer to give the information.

5. False imprisonment consists in the unlawful restraint against his will of an individual's personal liberty. Any intentional conduct that results in the placing of a person in a position where he cannot exercise his will in going where he may lawfully go may constitute false imprisonment.

Henry G. Brown and Robert P. Miller, Omaha, for appellant.

Marer & Lazer and Michael L. Lazer, Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

SPENCER, Justice.

In this action to recover damages for slander and false imprisonment, the trial court sustained a demurrer and dismissed plaintiff's last amended petition.

The only issue involved in this appeal is whether plaintiff's amended petition states a cause of action. We affirm.

Plaintiff originally commenced this action against Sears, Roebuck and Company and J. L. Brandeis & Sons, Inc. After demurrers were sustained to the original petition and an amended petition, plaintiff was given leave to docket the cases separately against Sears and Brandeis. This appeal is from the dismissal of plaintiff's last amended petition against Sears.

A petition which fails to plead actionable facts is vulnerable to a general demurrer. Clark & Enersen, Hamersky, S., B. & T., Inc. v. Schimmel Hotels Corp., 194 Neb. 810, 235 N.W.2d 870 (1975).

A general demurrer tests the substantive legal rights of the parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from the facts which are pleaded. Johnson v. Ruhl, 162 Neb. 330, 75 N.W.2d 717 (1956).

For the purposes of this opinion, we summarize all allegations of plaintiff's last amended petition which may be deemed pertinent. Sears and Brandeis operate stores in the Crossroads Mall in Omaha, Nebraska. Employees of both Sears and Brandeis held one or more meetings to discuss mutual security problems. Sears was represented at these meeting by Duane Berry and Brandeis by Mr. Muse.

At one of these meetings the name of the plaintiff was given by Berry in conjunction with the names of other parties who were known to Berry to be shoplifters or persons of unsavory character. Berry on that occasion advised Muse that plaintiff was a frequent shopper between the stores of the defendant and Brandeis. He further advised Muse that he suspected plaintiff of being a shoplifter because he had frequently observed her on the premises carrying shopping bags filled with merchandise. He stated it was his experience such a person usually was engaged in shoplifting but he had not been able to catch plaintiff in any criminal act.

Berry and Muse jointly agreed to attempt to catch plaintiff in the act of shoplifting. Mr. Muse instructed Berry to notify him of the presence of plaintiff whenever Berry saw her on the premises of Sears. Muse also requested that he be advised if plaintiff were to leave the premises of defendant for the premises of Brandeis. Berry agreed to so advise Muse.

On August 22, 1974, Berry observed plaintiff walk through the retail display of defendant's store. She made no purchase. He saw her enter the Brandeis store where she made a purchase. Pursuant to agreement, Berry notified Brandeis by telephone that plaintiff was in its store.

Subsequently, the person with whom Berry communicated notified a Brandeis security guard to pursue plaintiff. This security guard stopped her at a bus stop and there publicly and within the hearing of other people demanded that she accompany him to the premises of Brandeis so he could inspect the contents of her shopping bag and purse. Plaintiff alleges by this action she was imprisoned, detained, slandered, and held up to public ridicule, and that such slander was malicious and without reasonable cause.

Giving plaintiff the benefit of every inference which may legitimately be drawn from her pleading, the Sears representative did no more than advise Brandeis that plaintiff was in its store. Sears had not detained plaintiff in any way. Its employee merely observed her while she was in the store to be certain she did not engage in any unlawful activity there.

It is evident the cause of action plaintiff is attempting to plead against Sears for slander and false imprisonment concerns the action of a Brandeis security guard at the bus stop. He there publicly accused her of shoplifting and actually took her into custody. No representative of Sears was present or involved at that time, or at any time she was in Brandeis. The most that Berry had done was to advise Brandeis by telephone that plaintiff was in its store.

Plaintiff is attempting to plead a civil conspiracy. She has failed to do so. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object or a lawful object by unlawful or oppressive means. Buhrman v. International Harvester Co., 181 Neb. 633, 150 N.W.2d 220 (1967). Plaintiff's petition alleges only that the employees of Sears and Brandeis agreed to attempt to catch her in the act of shoplifting and a Sears employee was to notify Brandeis when plaintiff was in the store. There is nothing unlawful in this agreement.

The meetings of the Brandeis and Sears employees to discuss mutual security measures is within the ambit of their responsibilities and employment. There is no way their conduct in that respect can be characterized as unlawful or oppressive. Plaintiff has failed to plead a cause of action premised on conspiracy.

It seems to be plaintiff's position that Berry and Muse conspired to slander her at their meeting on security measures. If that is her contention, we hold the statement Berry made at the security meeting that he suspected plaintiff of being a shoplifter would not be actionable. A communication is privileged if made...