Davis v. McCrory Corp., 71--263
| Decision Date | 19 May 1972 |
| Docket Number | No. 71--263,71--263 |
| Citation | 262 So.2d 207 |
| Parties | Alma DAVIS, Appellant, v. McCRORY CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
J. E. Satterfield, Clearwater, for appellant.
James B. Thompson, of Fowler, White, Gillen, Humkey, Kinney & Boggs, St. Petersburg, for appellee.
Appellant was accused of and arrested for shoplifting in one of appellee's stores. She was acquitted, however, in a subsequent prosecution in the city court of Clearwater. Thereafter, she brought this action for false arrest, false imprisonment and malicious prosecution. The trial judge granted a motion for summary judgment in favor of defendant-appellee and this appeal ensued. We reverse.
The principal question before us, as it was before the trial court, is whether there is a material factual issue framed herein on the existence vel non of probable cause to arrest and prosecute appellant. Appellant in her deposition pictured her actions in the store at the time of arrest as those of a perfectly innocent customer. She was shopping for panties, she said, and was rummaging through a display bin handling several pairs of panties and panty hose in the process. While thus engaged, and because she had some cookies in her hands as well as some of the panties, she put one pair of panty hose (which she had already selected) in her Overcoat pocket. She maintains that they were in plain view while in her pocket, i.e., not completely within the pocket, and that she had not had a chance to complete her shopping or go to the check-out counter before she was confronted by the store manager, then and there accused of shoplifting, and detained for the police. She maintains that she did then, as she does now, steadfastly proclaim her innocence.
Needless to say, the testimony of the store manager and two women employees of appellee given at the city court trial, together with their subsequent depositions in this case, portray a vastly different version of the facts. The cumulative and mutually corroborative effect of their stories is that appellant had Secreted panties and/or panty hose in the pocket of her Dress which was worn Under her overcoat (and not in the coat itself as appellant says), and that she also secreted some of the panties in her purse and in a small paper bag. When confronted by the manager, they say, she at first denied secreting the merchandise, but then upon threat of police investigation voluntarily produced them from their hiding places. Additionally, they testified that she admitted secreting the merchandise with intent to steal it because she had heard of others getting away with it; and she bemoaned the fact that she got caught on her first attempt. It was upon these admissions, the manager stated, that he decided to arrest her forthwith rather than to wait until she left the store, which was the usual company policy.
The trial judge found that:
'The record, . . . must be viewed in the light of whether or not the circumstances as they appeared to the defendant's store manager and clerk at the time would lead a cautious, prudent person similarly situated to the conclusion that plaintiff was probably shoplifting when accosted . . . by (the) manager.
The testimony of the clerk, . . . and of the store manager, . . . reveals that plaintiff was observed in the store taking from a display table several pairs of panty hose and red panties, some of which she placed in her pocket and some in a brown paper bag.
That when taken into the office by the manager she stated in effect that she did not 'know what had got into her; that she had never done anything like that before,' but she thought she would try it, and 'wouldn't you know she got caught the first time.' It is not disputed that she had the panties in her possession and by her own admission had at least some of them in her pockets; that they were not paid for, although it is to be conceded that defendant's store is a self-service store where...
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