Faniel v. Chesapeake & Potomac Telephone Co.

• Decision Date: 26 June 1979
• Docket Number: No. 13628.,13628.
• Citation: 404 A.2d 147
• Parties: Essie FANIEL, Appellant, v. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND et al., Appellees.
• Court: D.C. Court of Appeals

Page 147

404 A.2d 147

Essie FANIEL, Appellant, v. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND et al., Appellees.

No. 13628.

District of Columbia Court of Appeals.

Argued December 18, 1978.

Decided June 26, 1979.

Gregory E. Kubash, Washington, D. C., for appellant.

Kathryn E. Thiel, Washington, D. C., with whom Robert W. Jeffrey, Washington, D. C., was on brief, for appellees.

Before KERN, GALLAGHER and NEBEKER, Associate Judges.

GALLAGHER, Associate Judge:

A jury awarded appellant $7,000 on a false imprisonment claim. The trial court granted appellees' motion for judgment notwithstanding the verdict (n. o. v.) and set aside the award.¹ Seeking reinstatement of the verdict in her favor, appellant contends the trial court improperly granted judgment n. o. v. for appellees.² We affirm.

Appellant's false imprisonment suit arose out of actions taken by her employer, the American Telephone and Telegraph Company (AT&T) and its subsidiary, the Chesapeake and Potomac Telephone Company of Maryland (C&P) to recover an unauthorized telephone extension in appellant's home. At the time of the alleged false imprisonment, appellant Essie Faniel was employed as a keypunch operator in AT&T's Washington, D.C. office.

On August 20, 1976, a workday for Mrs. Faniel, a supervisor asked her to step into a conference room. There she was introduced to Mr. Aussem,³ who was identified as an AT&T security supervisor from New York, responsible for investigating misuse of equipment by AT&T employees. Mr.

Aussem informed Mrs. Faniel that routine testing had revealed excessive electronic resistance on her line, suggesting the presence of an unauthorized telephone installation.⁴ When asked, Mrs. Faniel told Mr. Aussem she had two phones. Later she admitted having a third, unauthorized telephone, and signed a written statement to that effect. After signing the statement, Mrs. Faniel was told a trip to her home would be necessary to recover the equipment. She did not object, because, as she testified at trial, "I just assumed that I had to go." Appellant testified that her request to call her husband first was denied by Mr. Aussem. However, appellant's supervisor, Mrs. Powell, testified that she placed a call to Mr. Faniel, at appellant's request, from the conference room, and left a message that his wife would be leaving early.⁵

Accompanied by Mr. Aussem and Mrs. Powell, appellant was driven to her home, stopping briefly at a C&P facility in Maryland to pick up a C&P security officer. Mrs. Faniel testified that the stop came as a surprise, although Mr. Aussem testified that he advised her of the need to pick up the C&P security man who had the actual authority to recover the equipment.⁶ During the brief stop at the C&P building, Mrs. Faniel again asked to call her husband. According to appellant's version of the facts, which we must accept, Mrs. Powell refused permission. On cross-examination, appellant could not recall whether Mrs. Powell had offered to make the call for her, as Mrs. Powell testified.

The foursome proceeded to Mrs. Faniel's home where they were greeted at the door by her husband. The telephone was found unplugged and lying on the floor. After recovering the equipment, the telephone company employees left. Mrs. Faniel received a thirty-day suspension from work, but did not lose her job, and was promoted several months later.

At the close of all the evidence, the trial court reserved a decision on appellees' motion for directed verdict, because it appeared to be a close question as to whether the case should be submitted to the jury. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 406 F.2d 653 (1968). After the jury found for appellant, upon granting appellees' motion for judgment n. o. v. the court stated, "[i]n view of the employee-employer relationship and the fact that the trip to her home was made during working hours, when she was being paid, the detention after the questioning, if any, was not unreasonable. I conclude, therefore, that there was no factual issue to present to the jury for resolution in order to determine whether probable cause existed and the evidence established probable cause for any detention as a matter of law."

I.

A judgment n. o. v. provides the means by which a trial court may, after verdict, order the judgment required by law regardless of the verdict entered. See generally 5A Moore's Federal Practice ¶ 50.-07[1] (2d ed. 1977); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2521 (1971). Like a directed verdict, a judgment n. o. v. allows the court to remove from jury consideration those cases in which the facts, viewed most favorably to the nonmoving party, permit but one reasonable conclusion as to the proper judgment.⁷ See, e. g., McKnight v. Wire Properties, Inc., D.C.App., 288 A.2d 405, 406 (1972); District of Columbia v. Jones, D.C. App., 265 A.2d 594, 595 (1970). Thus, upon review of a judgment n. o. v., "[t]he question for us is not whether there is sufficient evidence in the record to support the findings and decision of the judge, but whether . . . a jury of reasonable men could properly have reached a verdict in favor of appellant, the party upon whom the onus of proof was imposed." Baker v. D. C. Transit System, Inc., D.C.App., 248 A.2d 829, 831 (1969).

False imprisonment is defined, in this jurisdiction, as the restraint by one person of the physical liberty of another without consent or legal justification. See, e. g., Tocker v. Great Atlantic & Pacific Tea Company, D.C.App., 190 A.2d 822, 824 (1963). The essential elements of the tort are (1) the detention or restraint of one against his will, within boundaries fixed by the defendant, and (2) the unlawfulness of the restraint. See Tocker, supra. The threshold question in this false imprisonment action is necessarily, whether a detention of appellant occurred.⁸

As appellant's counsel conceded at trial, any unlawful confinement took place during the automobile trip, not the initial questioning episode. The security officer was entitled to question Mrs. Faniel, an employee, on the employer's premises, about a violation of company policy, without incurring liability for false imprisonment. Lansburgh's, Inc. v. Ruffin, D.C. App., 372 A.2d 561 (1977). As this court has stated,

[o]ne does not lose one's legal rights by virtue of having the status of an employee. On the other hand, up to a point an employer has the right to question employees about their sales practices generally and in a particular case. Proulx v. Pinkerton's National Detective Agency, Inc., 848 Mass. 890, 178 N.E.2d 575 (1961); Roberts v. Coleman, 228 Or. 286, 365 P.2d 79 (1961). Taken too far, however, a detention of the employee may result depending upon the circumstances, including the length, nature and manner of interrogation. [Lansburgh's, supra at 564.]

Here, Mr. Aussem's brief questioning of Mrs. Faniel was directed toward investigation and explanation of suspicious circumstances,⁹ and terminated immediately upon admission of wrongdoing. In Lansburgh's, supra, we held that a detention occurred at a late point in the questioning, when the store security employees told the employee that he would be "booked," and proceeded to search him.¹⁰ Under the facts of this case, however, we cannot say that a detention occurred, even during the subsequent trip to appellant's home for further investigation and for recovery of the unauthorized equipment.

To constitute imprisonment, the restraint of appellant's freedom of movement by appellees must have been total. See 1 Restatement (Second) of Torts §§ 35, 36 (1965).¹¹ Appellant's movements could be restrained, of course, even in a traveling automobile, if she was compelled to go along against her will. See generally Prosser, Torts § 11, at 42-44 (4th ed. 1971); Harper & James, The Law of Torts § 3.6 (1956). The driver of a car imprisons an unwilling passenger by restraining the passenger's liberty. Cheasapeake & Potomac Telephone Co. v. Lewis, 69 App.D.C. 191, 193 n. 2, 99 F.2d 424, 426 n. 2 (1938), citing Cieplinski v. Severn, 269 Mass. 261, 168 N.E. 722 (1929). Even when the place of confinement is in motion,

[i]f the actor by force or threats of force, or by exerting legal authority, compels another to accompany him from place to place, he has as effectively confined the other as though he had locked him in a room. [1 Restatement (Second) of Torts § 36, Comment c at 56.]

However, it is not enough for plaintiff to feel "mentally restrained" by the actions of the defendant. See Riggs National Bank v. Price, D.C.App., 359 A.2d 25, 27 (1976); Herbst v. Wuennenberg, 83 Wis.2d 768, 266 N.W.2d 391, 394-97 (1978).¹² The evidence must establish a restraint against the plaintiff's will, as where she yields to force, to the threat of force or to the assertion of authority. See, e. g., Tocker, supra at 824. Although plaintiff may submit to a confinement without resistance, if the submission is voluntary, as where an accused voluntarily accompanies his accusers to vindicate himself, then no false imprisonment occurs. See, e. g., Bass v. Dunbar House, Inc., D.C. Mun.App., 161 A.2d 50 (1960).

Submission to the mere verbal direction of another, unaccompanied by force or threats of any character does not constitute false imprisonment. See Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.1966). Similarly, fear of losing one's job, although a powerful incentive, does not render involuntary the behavior induced. See, e. g., Prosser, Torts, supra § 11, at 106; Moen v. Las Vegas International Hotel, Inc., 90 Nev. 176, 521 P.2d 370, 371 (1974).¹³

Appellant's testimony at trial indicates that she did not accompany the telephone employees because of threats, either of force or prosecution. She did not at any point object or attempt to leave the car. Her testimony is quite revealing:

Q: Okay. Now after you signed the statement that you had an extra phone, it...