Gustafson v. Payless Drug Stores Northwest, Inc.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: DENECKE; HOLMAN
• Citation: Gustafson v. Payless Drug Stores Northwest, Inc., 525 P.2d 118, 269 Or. 354 (Or. 1974)
• Decision Date: 08 August 1974
• Parties: Albertina GUSTAFSON, Respondent, v. PAYLESS DRUG STORES NORTHWEST, INCORPORATED, a Maryland corporation, Appellant.

Page 118

525 P.2d 118

269 Or. 354

Albertina GUSTAFSON, Respondent, v. PAYLESS DRUG STORES NORTHWEST, INCORPORATED, a Maryland corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted Dec. 3, 1973.

Reargued May 10, 1974.

Decided Aug. 8, 1974.

A. B. Cummins, Jr., Salem, argued the cause for appellant. With him on the briefs were Geo. A. Photen and Rhoten, Rhoten & Speerstra, Salem.

Samuel R. Blair, Salem, argued the cause for respondent. With him on the brief were Ady & Blair, Salem.

Before DENECKE, P.J., and HOLMAN, TONGUE, HOWELL, BRYSON, SCHWAB ^* and LANGTRY,* JJ.

DENECKE, Justice.

The plaintiff was acquitted of a criminal charge of shoplifting. She brought this malicious prosecution action, the jury awarded her damages and the defendant, Payless Drug Stores, appeals.

The principal assignment of error is that the trial court erred in denying the defendant's motion for directed verdict. Payless urges that the trial court erred in this regard because Payless had probable cause to prosecute plaintiff. Proof of probable cause is a complete defense to the action. We recently discussed the requirement of probable cause in a malicious prosecution action in Varner v. Hoffer, 267 Or. 175, 515 P.2d 920 (1973). We stated:

'We have adopted 3 Restatement, Torts § 662, as a correct statement of when probable cause exists. Kuhnhausen v. Stadelman, supra, 174 Or. (290) at 315, 148 P.2d 239, 149 P.2d 168; Shoemaker v. Selnes, 220 Or. 573, 349 P.2d 473, 87 A.L.R.2d 170 (1960. Section 662, 3 Restatement, Torts, pp. 403--404, provides:

"One who initiates criminal proceedings against another has probable cause for so doing if he

"(a) reasonably believes that the person accused has acted or failed to act in a particular manner, and

"(b)

"(i) correctly believes that such acts or omissions constitute at common law or under an existing statute the offense charged against the accused, or

"(ii) mistakenly so believes in reliance on the advice of counsel under the conditions stated in § 666." 267 Or. at 179, 515 P.2d at 922.

For the defendant to have probable cause it must have both a reasonable belief in the guilt of the accused as well as a subjective belief. Hryciuk v. Robinson, 213 Or. 542, 561, 326 P.2d 424 (1958).

Whether the defendant had probable cause to institute the criminal proceeding is a matter for the court to decide and not the jury. Prosser commented: '* * * (T)he existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court. * * *.' Prosser, Torts (3d ed.), 846--847, § 119. We uniformly have adhered to this principle. For examples, Varner v. Hoffer, supra, 267 Or. 175, 515 P.2d 920; Kuhnhausen v. Stadelman, 174 Or. 290, 310, 148 P.2d 239, 149 P.2d 168 (1944).

'If the facts or inferences are in dispute the jury must decide the facts and the court must instruct the jury what facts constitute probable cause.' Varner v. Hoffer, supra, 267 Or. at 179, 515 P.2d at 921. We pointed out that instructing on the issue of probable cause is very difficult when the jury can find a number of different fact combinations. Another possible procedure is to settle the factual disputes by having the jury answer special interrogatories. Hess v. Oregon Baking Co., 31 Or. 503, 511, 49 P. 803 (1897). If such a procedure were used, the trial court would decide whether the plaintiff had probable cause based upon the facts found by the jury in answer to the interrogatories.

Neither procedure was used in this case. The jury was instructed that it was to determine if the defendant had reasonable cause to believe the plaintiff did not intend to pay for the cigarettes. However, neither party excepted to the instruction and on appeal the defendant does not contend the instruction was erroneous. Despite the absence of objection we might remand the cause for a new trial under proper instructions. This court followed that procedure in Kuhnhausen v. Stadelman, supra, 174 Or. at 311, 148 P.2d 239, 149 P.2d 168, a malicious prosecution case in which the trial court submitted the issue of probable cause to the jury and neither party objected. However, we do not need to decide whether that would be appropriate because we hold that taking the facts most favorable to the defendant, plaintiff has proved that the defendant did not have probable cause.

Because of the unique problem presented by the issue of probable cause, we repeat that it is the court's function, not the jury's function, to determine the issue of probable cause. Unless we remand for a new trial we must decide either that the defendant did or did not have probable cause.

Our observation about determining probable cause to arrest is equally applicable to probable cause in a malicious prosecution action. 'The question of whether or not there is probable cause to arrest almost has to be decided on an ad hoc basis because of the tremendous number of fact combinations possible.' State v. Cloman, 254 Or. 1, 10, 456 P.2d 67, 71 (1969).

The evidence is as follows:

The plaintiff and her husband live in California and were visiting relatives in Salem. Plaintiff and her elderly mother-in-law went to the defendant's store to shop. They purchased a bulky swing set and then separated. The mother-in-law looked in one part of the store for a gift and the plaintiff went to another area of to store to pick up film. After plaintiff picked up her film she could not find her mother-in-law so she went up and down several aisles in search of her. While so doing, plaintiff came under the scrutiny of Mrs. Yaw, defendant's security officer, although plaintiff did nothing to excite Mrs. Yaw's suspicion. Mrs. Yaw stayed at a distance and followed plaintiff.

Plaintiff came to a counter containing cartons of cigarettes for sale. She picked up a carton in the manner of an ordinary shopper without putting it in her purse or in another bag she was carrying. At all times thereafter, she carried it so that it was visible. She found her mother-in-law who had selected a pants suit for purchase. The mother-in-law paid for the clothing and the plaintiff attempted to pay for the cigarettes; however, the cashier- checker told her she would have to go to a cash register in another part of the store to pay. Mrs. Yaw witnessed all of this and knew what transpired.

Plaintiff and her mother-in-law went back to the variety section passing the wrong way through a line of check-out counters. The mother-in-law could not find what she was looking for. As they shopped the two had an intense discussion over who should pay for the item previously purchased. Plaintiff became aware that the time had arrived when her husband was to meet them in the parking lot with his pickup. Plaintiff and her mother-in-law walked toward the door of the store by a normal route. They were not required to pass through any check-out counters to get to the store exit.

Plaintiff and her mother-in-law remained right outside the door for about five minutes continuing their conversation. Plaintiff's husband drove up, parked nearby and opended the tailgate of his pickup in order to load the swing set. Plaintiff hurried to the truck, dumped all of her packages, including the carton of cigarettes, in the truck bed and turned to go back toward the store to help load the swing set. At this point Mrs. Yaw stepped up to her and said, 'There's something there that you forgot to pay for.' Plaintiff exclaimed, 'Oh, my God, the cigarettes,' and apologized profusely and told Mrs. Yaw she and her mother-in-law were talking so much she forgot about the cigarettes. Mrs. Yaw said that she should come back in and pay for them. When she got into the store Mrs. Yaw ordered plaintiff to go upstairs into a small room where she told plaintiff she was being arrested for shoplifting. Mrs. Yaw called a police officer who took plaintiff to the police station.

Defendant contradicted this evidence in three particulars. Mrs. Yaw testified that before plaintiff went out of the store she passed through a manned check-stand by walking around the people in line. Mrs. Yaw also testified that Mrs. Gustafson placed the cigarettes on the extreme left side of the bed of the pickup away from her other packages. She also testified that when she accosted Mrs. Gustafson, the plaintiff casually said, 'I must have forgotten,' and plaintiff did not appear flustered and apologetic.

As to Mrs. Yaw's conclusion that plaintiff attempted to hide the cigarettes when plaintiff put them in the bed of the pickup, we find such a conclusion unreasonable and not warranted by what Mrs. Yaw testified she saw. The evidence is uncontradicted that the tailgate of the pickup was down, the objects on the bed of the pickup were plainly visible and the cigarettes were lying not more than a foot from the other objects plaintiff placed in the pickup.

Assuming that the defendant's version of what occurred is correct on the other two disputed issues, we, nevertheless, hold that the plaintiff proved lack of probable cause.

Courts use the same dichotomy here as in determining whether there was probable cause to arrest; suspicion is not enough but belief beyond a reasonable doubt is not necessary.

Comment c. to the Restatement, Torts, 405, § 662, states: 'Furthermore, it is not enough that his reasonable suspicion that the accused may be guilty is so strong that he deems it advisable that the accused be held for further investigation.'

"Probable cause,' of course, is not grounds that carry conviction of guilt beyond a reasonable doubt, but they must do more than to create a mere suspicion or suggestion of guilt.' 1 Harper and James, Law of Torts, 311, § 4.5.

Ordinarily, a storekeeper will have probable cause to believe a customer is shoplifting if the essential facts are that the customer...