Grove v. Purity Stores, Limited

• Decision Date: 15 August 1957
• Citation: 153 Cal.App.2d 234,314 P.2d 543
• Court: California Court of Appeals Court of Appeals
• Parties: Charles David GROVE, Plaintiff and Respondent, v. PURITY STORES, Ltd., a corporation, and Jack N. Young, Defendants and Appellants. Civ. 22067.

Page 543

314 P.2d 543

153 Cal.App.2d 234

Charles David GROVE, Plaintiff and Respondent, v. PURITY STORES, Ltd., a corporation, and Jack N. Young, Defendants and Appellants.

Civ. 22067.

District Court of Appeal, Second District, Division 1, California.

Aug. 15, 1957.

Marion A. Smith, Santa Maria, Fred A. Watkins, San Francisco, for appellants.

Champion & Quinn, Thomas Quinn, Paso Robles, for respondent.

WHITE, Presiding Justice.

Plaintiff instituted this action to recover damages for malicious prosecution. The cause was tried before the court sitting without a jury, resulting in a judgment for plaintiff awarding him damages in the sum of $1,250. This appeal is prosecuted by defendants from said judgment.

Concerning the factual background surrounding this litigation, the record reflects that at the time of his arrest, plaintiff was 69 years of age; he was born in Paso Robles, San Luis Obispo County, California, where his arrest occurred, and he had resided there continuously except during his absence while serving in the Army in World War I, and in the U. S. Coast Guard during World War II. He was retired. His monthly income consisted of $78.73 resulting from his military service in World War I, plus $70.30 derived from his Social Security. He and his three brothers shared ownership of a ranch located some twelve miles southwest of Paso Robles, San Luis Obispo County, and which property had been in the family for some ninety years. There was unchallenged evidence that plaintiff's reputation in the community for truth, honesty and integrity was of the highest. He had never before been arrested, and although he had driven motor vehicles, including trucks, since 1910, he had never 'received a traffic citation' of any kind. For some years plaintiff had been a customer of defendant corporation.

As to the happenings on the day of his arrest, plaintiff testified that about 4 o'clock on the afternoon of November 18, 1954, he entered the store of defendant Purity Stores, Ltd. to purchase groceries, and in particular a package of Jello. He had some $8 and a few cents in his pocket. He testified that upon entering the store he went to 'where I used to find it' (Jello). He encountered a lady acquaintance to whom he spoke. He then 'just reached over and picked up the ham and went on around looking for the Jello'. He 'stuck the ham in his pocket'. Plaintiff then obtained the package of Jello and went up to the checkstand. He testified further that, 'Well, when I got my Jello and got it checked, why, I forgot all about the ham until I just got outside the door. I made a few steps, 'Well, I'll turn back and pay it now', but I didn't get turned around until they (defendant Young and James W. MacDonald, assistant manager of the store) stopped me. I told them I was just going to pay for it. 'No, you are not,' they said. 'You are not going to pay for it.' That is Young. 'Just come back inside.' I said O.K. I walked back inside.' Plaintiff further testified, 'He (defendant Young) kind of talked loud like he was talking to a dog. Asked me why I did it. I said, 'I don't know. I just forgot to pay for it. That is it.' All I was willing to pay for it. 'No you are not. We will go to the police station.' I said, 'O.K. We will go to the Police station.'' Defendant Young then escorted plaintiff to the police station where, according to the latter, the former was advised that if he desired to file a complaint he must do so before Judge Fanning of the local judicial district court. On the following morning, defendant Young appeared before Judge Fanning, advised the latter that plaintiff had taken the ham and walked out of the store without paying for it. The judge thereupon prepared the complaint wherein plaintiff was accused of petty theft, and defendant Young swore to the same.

On the preceding evening at 5 p. m. plaintiff was lodged in jail by the police, where he was incarcerated until 10 a. m. on the following day, at which time he was arraigned before Judge Fanning, entered a plea of not guilty and was released on $50 bail. Trial of plaintiff before a jury on the petty theft accusation resulted in a verdict of not guilty.

Sworn as a witness in his own behalf at the malicious prosecution trial, defendant Young testified that he was the manager of defendant corporation's store at Paso Robles and had been such for some three or four months prior to the arrest of plaintiff; that he had been in the employ of the corporate defendant for some three and a half years. He testified that among his duties as store manager was 'the observation of possible shoplifters in the store'; that thefts of merchandise from the store presents 'quite a serious problem', resulting in a monthly loss of approximately $100 at the Paso Robles store. As to the occurrences on the afternoon here in question defendant Young testified he observed a man 'lingering' in front of the delicatessen case, and 'I observed Mr. Grove (plaintiff) looking from side to side and then putting a package of boiled ham in his pocket of his jacket' where it was completely concealed from view. The witness then observed plaintiff walk up the aisle, pick up the package of Jello and proceed to the checkstand. The witness followed plaintiff to the checkstand where the latter paid the former for the Jello and was 'checked out'. Defendant Young further testified that he knew at that time that plaintiff had the ham in his pocket, but did not ask the latter whether he was going to pay for it--'I thought perhaps maybe he would pay for it. I didn't know, but I wanted to find out.' After the Jello had been paid for, defendant Young and James W. MacDonald, assistant manager of the store, followed plaintiff outside and accosted him some 30 or 40 feet away on the sidewalk. Defendant Young testified that, 'I stopped him and asked him what he had in his pocket and as I recall he didn't say much of anything until I asked him whether he had the ham in his pocket. He admitted having that and so I asked him, I said, 'Well, would you mind walking over to the police station with us?' and he said, 'No,' and we walked through the parking lot around up through the alley and around the corner to the police department.' That plaintiff said, 'I wonder what I'll get; $30 or 30 days.' and that plaintiff further stated, 'I took it, but I don't know why * * * I have never done anything like this before.' Defendant Young further testified that upon arrival at the police station 'I told the sergeant at the desk that he had taken the package of ham and I was just bringing him over to the police department because I fully believe and I still do that he had taken it and I wanted to report him.' That plaintiff made no statement. That the police officer advised him he would have to file a complaint with Judge Fanning. Mr. Young, accompanied by an officer, repaired to the court of said judge, and the latter's secretary informed defendant Young that the judge was busy and that he would have to return the next morning. This was between 4:00 and 5:00 p. m. Defendant Young returned to the police station and informed the police officer that he couldn't file the complaint until the following morning; the police officer thereupon informed Young that he should go to the judge's office the next morning. Defendant Young testified that he made no statements to the police requesting that plaintiff be retained in jail pending filing of the complaint; nor did Mr. Young, according to his testimony, know that plaintiff would be detained in jail pending the filing of the complaint. In that regard, defendant Young testified as follows:

'The Court: Did you make any inquiry whether the man was going to be held in jail? A. No, I didn't assume that he would.

'Q. Why didn't you assume that? A. Well, I didn't see----

'Q. Any reason why he should. A. Well, as far as I was concerned he was--I had seen him do this and I was just performing my duty in bringing him to the police.

'The Court: But you didn't see why he should be held in jail. A. Not unless I had signed a complaint.'

James W. MacDonald testified at the trial of the malicious prosecution case that he was assistant manager for the corporate defendant at its Paso Robles store, and had been for eight months. That he had been employed by such defendant in all, about eight years. The witness testified that on the day here in question he was in the store and 'watching through a peephole'. He corroborated the testimony of defendant Young as to the conduct of plaintiff in the store and upon the sidewalk when the latter emerged from the store, as well as the testimony of Mr. Young concerning what transpired at the police station. When this witness was asked whether on the sidewalk outside the store plaintiff offered to pay for the ham, his answer was, 'I can't remember, no, no.'

In rebuttal, Thomas D. Quinn, one of counsel for plaintiff herein, testified that 'By my own personal recollection, Mr. MacDonald (the previous witness and assistant store manager) swore under oath at the time of the trial, at the criminal case, that Mr. Grove (plaintiff) right outside Purity Store at the preliminary...