F.W. Woolworth Co., Inc. v. Anderson

• Decision Date: 20 December 1984
• Docket Number: No. 1-384A67,1-384A67
• Parties: F.W. WOOLWORTH COMPANY, INC., Woolco, Harry Hare, Everett Basham, Defendant- Appellants, v. Larry ANDERSON, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1249

471 N.E.2d 1249

F.W. WOOLWORTH COMPANY, INC., Woolco, Harry Hare, Everett Basham, Defendant- Appellants, v. Larry ANDERSON, Plaintiff-Appellee.

No. 1-384A67.

Court of Appeals of Indiana First District.

Dec. 20, 1984.

Rehearing Denied Jan. 29, 1985.

Joe E. Beardsley II, Beardsley & Stengel, Clinton, for plaintiffs-appellants.

Dennis R. Majewski, Terre Haute, Clelland Hanner, Gary Hanner, Hanner, Hanner & Hanner, Rockville, for defendant-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

F.W. Woolworth Co., Woolco, Harry Hare ¹ and Everett Basham (appellants) appeal from the entry of a judgment by the Parke Circuit Court following a jury verdict for Larry Anderson (Anderson) on his complaint for defamation and malicious prosecution. We affirm.

FACTS

Between August 1980, and April 7, 1981, Larry Anderson was employed as the automotive department manager at Woolco's North Plaza store in Terre Haute, Indiana. As part of his duties, Anderson made a number of bulk sales of excess automotive department inventory. It is one of those transactions which is at the heart of this case.

On April 3, 1981, Jack Blake, a Woolco employee, met with his close friend Harry Hare, general manager of Woolco's North Plaza store. Blake told Hare that he suspected Anderson was not depositing receipts from bulk sales into the automotive department's cash registers. ² Blake also informed Hare that he was quitting because of the allegedly illegal conduct of Anderson. Previously on April 1, or April 2, 1981, Anderson demoted Blake from assistant department manager to mechanic. Following this incident, Blake told Anderson that he would get even.

The same day Blake met with Hare, Anderson sold a large quantity of oil and oil treatment to Lawson Distributors for $1440.30 in cash. Anderson apparently deposited the proceeds from this sale in the cash registers of other departments throughout the store during the period April 3, 1981 to April 7, 1981. Hare had directed Anderson to record the receipts from bulk sales in this manner both to hide the unusual number of bulk sales being made and to increase net sales figures of the store's other departments.

After learning that Anderson would be making the sale to Lawson, Hare instructed an employee to monitor the automotive department's registers hourly. Subsequently, he also conducted a review of the tapes from the automotive department's cash registers for the sales made on April 3, 4 and 5. He did not review any deposits made to other department's registers or discuss the whereabouts of the receipts from the Lawson transaction with Anderson. After his abbreviated investigation, Hare concluded that Anderson had stolen the proceeds from the sale to Lawson. Subsequently, he contacted Woolworth's regional loss prevention director and Everett Basham concerning the alleged theft.

Everett Basham was employed as a part time security officer at Woolco's North Plaza store. He was also a full-time detective with the Terre Haute Police Department. Basham, acting in his capacity as a Terre Haute police officer, filed a probable cause affidavit seeking to have the Vigo county prosecutor file an information charging Anderson with theft. Anderson apparently had had several clashes with Basham during his tenure at the store. He had informed his superiors that he suspected Basham was removing merchandise from the store with Hare's knowledge. Anderson also had confronted Basham about Basham's harassment of female Woolco employees.

On April 7, 1981, the Vigo county prosecutor filed an information charging Anderson with theft. He was arrested at Woolco's that same day. On October 22, 1981, Anderson was found not guilty after a jury trial on the theft charges. He then initiated this suit for defamation and malicious prosecution against F.W. Woolworth Co., Woolco, Harry Hare and Everett Basham. The jury returned a verdict in favor of Anderson awarding him $110,000 compensatory damages together with punitive damages in the amount of $150,000. Appellants then perfected this appeal.

ISSUES

The appellants essentially raise four issues for our consideration. ³

1. Whether the judgment of the trial court is supported by sufficient evidence.

2. Whether the trial court committed reversible error when it excluded the deposition of an unavailable witness.

3. Whether the trial court erred when it refused an instruction tendered by appellants which set out the advice of counsel defense.

4. Whether the trial court erred when it read two of the appellee's punitive damages instructions.

DISCUSSION AND DECISION

Issue One

Initially, appellants assert that there is insufficient evidence contained in the record to support the trial court's judgment. Of course, our appellate review of such questions is necessarily limited. We will neither reweigh the evidence nor judge the credibility of witnesses. Rather, we will consider only the evidence most favorable to the judgment along with all reasonable inferences which may be drawn from that evidence. Only in those instances where the evidence points to a single conclusion different from the one reached by the trial court may we reverse on grounds of insufficient evidence. Kiracofe v. Reid Memorial Hospital, (1984) Ind.App., 461 N.E.2d 1134, 1140; Trinity Lutheran Church, Inc. v. Miller, (1983) Ind.App., 451 N.E.2d 1099, 1102, trans. denied. A careful review of the record before us reveals that it contains sufficient evidence to support the trial court's judgment.

The essential elements of a malicious prosecution action have been set out by the courts of this state on a number of occasions. In order to succeed, the plaintiff must prove, by a preponderance of the evidence, that: (1) the defendant instituted or caused to be instituted a prosecution against the plaintiff; (2) the defendant acted maliciously in so doing; (3) no probable cause existed to justify institution of the prosecution; and, (4) ultimately the prosecution was terminated in the plaintiff's favor. Duckwall v. Davis, (1924) 194 Ind. 670, 675, 142 N.E. 113, 114; Wong v. Tabor, (1981) Ind.App., 422 N.E.2d 1279, 1283; Barrow v. Weddle Brother's Construction, (1974) 161 Ind.App. 601, 605, 316 N.E.2d 845, 849; Boyd v. Hodson, (1947) 117 Ind.App. 296, 301, 72 N.E.2d 46, 68. It is absolutely clear from the record that appellants caused to be instituted a prosecution of Anderson which was ultimately resolved in his favor. Appellants argue, however, that there is insufficient evidence in the record to establish either that the prosecution was instituted without probable cause or that they acted maliciously.

"Probable cause for the institution of a criminal prosecution exists where the facts found on reasonable inquiry would induce a reasonably intelligent and prudent person to believe that the accused had committed the crime charged." McQueen v. City of Indianapolis, (1980) Ind.App., 412 N.E.2d 138, 140. The evidence most favorable to the judgment is sufficient to support a finding that the appellants acted without probable cause. That evidence establishes that Anderson deposited all of the cash received from the sale to Lawson Distributors in the cash registers of various departments throughout the store during a five day period following the sale. Additionally, appellants were aware, or should have been aware, of this since Hare had been the one who instructed Anderson to record bulk-sales in this manner. The appellants, therefore, had no reason to believe that Anderson had committed theft. Consequently, no probable cause existed to institute, or cause to be instituted, a criminal prosecution of Anderson.

There also was sufficient evidence presented at trial from which the jury could have inferred the existence of malice. First, malice may be inferred from the institution of a criminal prosecution without probable cause. Satz v. Koplow, (1979) Ind.App., 397 N.E.2d 1082, 1085, trans. denied; Stivers v. Old National Bank, (1970) 148 Ind.App. 196, 200, 264 N.E.2d 339, 342. As we indicated above, probable cause did not exist to justify the institution of a criminal prosecution of Anderson. Secondly, malice may be inferred from the failure to conduct a reasonable or suitable investigation. Pontius v. Kimble, (1914) 56 Ind.App. 144, 146, 104 N.E. 981, 982; 10 I.L.E. Malicious Prosecution Sec. 9 (1959). The appellant's investigation consisted largely of reviewing cash register tapes from the registers in the automotive department alone. No investigation was conducted to determine whether or not Anderson might have deposited the money in another department's registers. From these facts, the jury could have concluded that the appellants did not conduct a reasonable investigation and, therefore, acted with malice. Finally, malice may properly be inferred from the existence of personal animosity. Satz, at 1085. During the trial, Anderson produced substantial evidence which tended to establish that personal animosity did exist between himself and the appellants. For instance, Anderson admonished Basham for harrassment of female Woolco employees. Anderson had also reported Basham and Hare to his superiors for allegedly stealing merchandise from the store. Consequently, sufficient evidence existed from which the jury could have properly inferred the existence of malice.

Appellants also assert that there was insufficient evidence to support an award of punitive damages. However, as our discussion above discloses, there was substantial evidence tending to show that the appellants acted maliciously. In addition, we note that the jury was instructed on the proper standard of proof. We think that the award of punitive damages was based on sufficient evidence.

Issue Two

On October 17, 1983, appellants served notice on Anderson informing him that a former Woolco employee would be deposed in Dallas, Texas, on October 20, 1983, just five days prior to trial. At trial, Anderson objected to the admission of the deposition...