Gathers v. Harris Teeter Supermarket, Inc., 0193

Decision Date20 February 1984
Docket NumberNo. 0193,0193
CourtSouth Carolina Court of Appeals
PartiesLois Green GATHERS, Respondent, v. HARRIS TEETER SUPERMARKET, INC., Appellant. . Heard

Andrew Kenneth Epting, Jr. of Wise, Cole & Pearlman, Charleston, for appellant.

Robert G. Howe of Howe & Howe and J. Kevin Holmes of Steinberg, Levkoff, Spitz & Goldberg, Charleston, for respondent.

SHAW, Judge.

The respondent-Lois Gathers brought this lawsuit against the appellant-Harris Teeter Supermarket, Inc., alleging slander, assault and battery, and false imprisonment. The jury returned a verdict for Mrs. Gathers on the charges of slander and assault and battery, awarding her $10,000 in actual damages on each cause of action. The jury found for Harris Teeter on the charge of false imprisonment. Harris Teeter appeals, making numerous assignments of error. We affirm.

In an action at law, on appeal of a case tried by a jury, the jurisdiction of this court extends merely to the correction of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

At approximately 11:00 A.M. on March 9, 1980, Mrs. Gathers, a school teacher, entered Harris Teeter to purchase a particular brand of cigarettes and some other items for her husband. Mrs. Gathers searched the cigarette displays at each cash register. Unable to find that brand, she then proceeded to the rack containing cartons of cigarettes. There Mrs. Gathers located one package of the brand her husband desired. She picked it up, examined it, and replaced it because it was crushed. Finding no other packages of this brand of cigarettes, Mrs. Gathers selected a few other items and proceeded to a cash register to pay for them.

During this sequence of events, Mrs. Gathers was being observed by County Police Officer Ackerman. He was on duty at this time as a police officer, but had stopped at the store for a coffee break. He was also employed as a security officer for another Harris Teeter store. He observed Mrs. Gathers through the glass wall of the office of Harris Teeter's Assistant Manager, Steven Marks. Mrs. Gathers' actions aroused Ackerman's suspicions. He believed that Mrs. Gathers was attempting to shoplift a package of cigarettes and communicated this belief to Marks. With Marks' full knowledge of what he was about to do, Ackerman first asked a cashier, Mary Jansen, if Mrs. Gathers had purchased any cigarettes. Ms. Jansen replied negatively. Ackerman then detained Mrs. Gathers outside the store and asked her to accompany him back inside.

Mrs. Gathers followed Ackerman into Marks' office. In this glass-walled office, in full view of the store's customers, Mrs. Gathers was interrogated by Ackerman concerning the cigarettes. She was not given the Miranda warning and was not allowed to call her husband nor an attorney. Her three requests that Ackerman check the cigarette display rack were refused. Ackerman told Mrs. Gathers that she would be searched. When Ackerman was informed that a female police officer was not readily available to perform the search, he asked Marks if a female store employee would do it. Mrs. Gathers then reluctantly submitted to a pat-down body search by Ms. Jansen, including the breast and groin areas. Ackerman searched her grocery bag, pocketbook, and raincoat. The searches produced no stolen goods. At this point, a very angry and upset Mrs. Gathers became free to go and reluctantly left the store after engaging in some loud and boisterous behavior.

Harris Teeter first claims that the trial judge erred in failing to rule, as a matter of law, that Ackerman was not an agent of the stores, that Harris Teeter was not liable for the actions of its employees taken at the request of a police officer, that sufficient probable cause existed to detain and search Mrs. Gathers and that all actions taken were reasonable and justified under the circumstances, and that Mrs. Gathers had consented to all actions taken.

Agency is a question of fact. The relationship of agency need not depend upon express appointment and acceptance, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If there are any facts tending to prove the relationship of agency, it then becomes a question for the jury. Reid v. Kelly, 274 S.C. 171, 262 S.E.2d 24 (1980); Hunter v. Hyder, 236 S.C. 378, 114 S.E.2d 493 (1960); City of Greenville v. Washington American L.B. Club, 205 S.C. 495, 32 S.E.2d 777 (1945).

There was sufficient evidence to submit the question of Ackerman's agency to the jury. Ackerman was employed by another Harris Teeter store as a security guard. Even though he was employed as a police officer at the time of the incident, Ackerman was off-duty and taking a coffee break at Harris Teeter store in question. Marks, the assistant manager, allowed Ackerman to take the coffee break in his office. Ackerman specifically told Marks he was about to catch a shoplifter and stated at the trial that Marks was aware of what he was going to do. After he had detained Mrs. Gathers, Ackerman asked Marks if he could use Marks' office. Marks agreed. Ackerman then requested a female employee be allowed to search Mrs. Gathers' person rather than waiting on a female police officer. At no time during her detention was Mrs. Gathers given the Miranda warning. Based on this evidence, the jury could have reasonably concluded that Ackerman was acting as an agent for Harris Teeter. We cannot say as a matter of law that there is no evidence to support the jury's finding. Townes Associates, supra.

Under fundamental principles of South Carolina law, a master is liable for and is charged with knowledge of the acts and conducts of his servants operating within the scope of their employment. Bradley v. Hullander, 272 S.C. 6, 249 S.E.2d 486 (1978). An act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and is in furtherance of the master's business. Lane v. Modern Music, 244 S.C. 299, 136 S.E.2d 713 (1964). A master or employer will not be responsible for the acts of its employees where the employee is not in the execution of the employer's business, but rather is engaged in the servant's own private business. Lane v. Modern Music, supra; Tucker v. U.S., 385 F.Supp. 717 (D.S.C.1974).

It is clear that both Marks and Ms. Jansen were acting in furtherance of Harris Teeter's business when they took part in the detention and search of Mrs. Gathers. While these activities may not have been of the type usually performed by the two employees, protecting a master's property is within the scope of every servant's employment and in furtherance of the master's business. Long v. Eagle 5, 10 and 25cents Store Co., 214N.C.146,198S.E.573 (1938). Marks knew what Ackerman was about to do, allowed the use of his office for the interrogation, and was present during the questioning. He allowed Ms. Jansen to conduct the body search for Ackerman. There was abundant testimony from which the jury might have inferred that the employees of Harris Teeter participated in the proceedings. Falls v. Palmetto Power and Light Co., 117 S.C. 327, 109 S.E. 93 (1921).

Harris Teeter seeks to relieve itself of liability for its employees' actions by claiming that Ackerman ordered the two employees to help him, that they were under a legal duty to help Ackerman, and that the law imposes no civil liability upon a private person for doing what the law requires him to do. In support of this proposition, Harris Teeter cites Section 16-5-50 of the 1976 South Carolina Code of Laws which makes it illegal to "hinder, prevent, or obstruct" a police officer in the performance of his duties.

Harris Teeter is misreading Section 16-5-50 as it imposes no affirmative duty upon private citizens to actively aid in the apprehension of suspected criminals. The only duty imposed upon a private citizen is to communicate such facts and information to a police officer as are necessary to allow the officer the opportunity to apprehend the offender. Wingate v. Postal Telegraph, 204 S.C. 520, 30 S.E.2d 307 (1944); State v. Carson, 274 S.C. 316, 262 S.E.2d 918 (1980). Any further actions taken by a private citizen must be justified under the circumstances, Hemmerle v. K-Mart Discount Stores, 383 F.Supp. 303 (D.S.C.1974), which brings us to the issue of probable cause.

Section 16-13-140 reads

In any action brought by reason of having been delayed by a merchant or merchant's employee or agent on or near the premises of a mercantile establishment for the purpose of investigation concerning the ownership of any merchandise, it shall be a defense to such action if: (1) the person was delayed in a reasonable manner and for a reasonable time to permit such investigation, and (2) reasonable cause existed to believe that the person delayed had committed the crime of shoplifting.

In Faulkenberry v. Spring Mills, Inc., 271 S.C. 377, 247 S.E.2d 445 (1978), the S.C. Supreme Court stated that probable cause is now a defense under Section 16-13-140 to actions arising from a merchant's delay of suspected shoplifters. Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise. State v. Roper, 274 S.C. 14, 260 S.E.2d 705 (1979); State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967). The issue of probable cause is essentially a question of fact and ordinarily for the determination of the jury. Parrott v. Plowden Motor Co., 246 S.C. 318, 143 S.E.2d 607 (1965).

The trial judge properly submitted the issues of probable cause and reasonable delay...

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