Hemmerle v. K-Mart Discount Stores
| Decision Date | 23 October 1974 |
| Docket Number | Civ. A. No. 74-293. |
| Citation | 383 F. Supp. 303 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Kathleen HEMMERLE, also known as Kathleen Scully, Plaintiff, v. K-MART DISCOUNT STORES, a division of S. S. Kresge Co., Inc., and Richard A. Green, Defendants. |
Edmund H. Monteith and M. Carrington Salley, Columbia, S. C., for plaintiff.
ORDER DIRECTING VERDICT IN FAVOR OF DEFENDANTS
This action was tried before the Court and a jury on October 3, 1974. The plaintiff seeks damages alleging a cause of action for false arrest and false imprisonment because of an incident which occurred in a K-Mart Discount Store in Columbia, South Carolina on or about June 30, 1972. The facts in the case are outlined herein and were not in dispute. Upon motion by the defendants the Court ordered a direction of verdict in their favor, since the only reasonable inference to be drawn from all of the evidence is that the defendants acted reasonably under the circumstances and any restraint upon the plaintiff's liberty was the action of the police and not the defendants.
On June 26, 1972, the plaintiff was residing at Route 2, Hopkins, South Carolina, with one Ramona Wright and Mrs. Wright's husband. Hopkins is located in Richland County near the city of Columbia. On that date the plaintiff and Mrs. Wright traveled to Bamberg, South Carolina, some 60 miles distance, where they went to see a Dr. Hiers to obtain prescriptions for Biphetamines, a controlled drug under the South Carolina Statutes. Dr. Hiers' office is located in a drug store, which he also operates. He has no nurse or receptionist, and a prescription counter is located in the drug store. Dr. Hiers is in excess of 80 years of age and Mrs. Wright had on one or two previous occasions obtained prescriptions for the same drug from him.
After obtaining the prescriptions from Dr. Hiers, no effort was made to fill them at his drug store, but the plaintiff and Mrs. Wright proceeded back to Columbia, South Carolina, in the automobile of the plaintiff, and went to the K-Mart Store on Jackson Boulevard, Columbia, South Carolina, to have the prescriptions filled. The plaintiff testified that she used this pharmacy because its prices were lower than others in the area. On June 26 the plaintiff had her prescription filled, but Mrs. Wright did not present her prescription on that day, testifying that she did not have any money with her at the time.
Two days later, June 28, 1972, the plaintiff and Mrs. Wright, again traveling in plaintiff's automobile went back to the K-Mart Store where Mrs. Wright presented her prescription to be filled. The defendant Richard A. Green, a pharmacist at the K-Mart prescription counter, told Mrs. Wright that he had only ten of the Biphetamines and if she would return the next day he would fill the balance of the prescription from stock which had been ordered. Mrs. Wright did not return the following day, but did return June 30, 1972 again in the company of the plaintiff, having traveled to the K-Mart Store in plaintiff's automobile. On this occasion the defendant Green advised Mrs. Wright the drugs had just come in and had not been unpacked, so it would be necessary for her to wait a few minutes for him to fill the balance of the prescription.
During this wait the plaintiff was looking around in other departments of the store. Mr. Green went to the rear of the store and called the Narcotics Division of the Columbia City Police Department. A Sergeant Galvin was dispatched to K-Mart for the purpose of investigating the purchase of these drugs.
When the police officers arrived they approached Mrs. Wright, checked her identification and questioned her about the prescription presented to Mr. Green. Mrs. Wright insisted that it was a legitimate prescription which she had obtained from Dr. Hiers. At her request Mr. Green called Dr. Hiers by telephone and explained the situation to him. Green then gave the telephone to Sergeant Galvin who discussed the matter further with Dr. Hiers. At this time the plaintiff was in the cosmetics department and was pointed out by an employee of K-Mart Stores as being the individual who had come in with Mrs. Wright on Monday and Wednesday of that week and who had filled a similar prescription on Monday. One of the officers, in the company of an employee of K-Mart, approached the plaintiff and asked her to come back to the prescription department. She followed the officer and was taken behind the prescription counter and questioned by the policemen and Sergeant Galvin. Also present were Mr. Green, a K-Mart Security Guard, Mrs. Wright and another K-Mart employee. The plaintiff testified that she felt she was under arrest and that she was not free to leave the area. She asserts this as being false imprisonment alleging that her activities were restricted by the actions of the defendants and the police officers for a period of approximately ten minutes.
When the officers finished their questions to plaintiff, they advised Mrs. Wright that they were taking her to jail for further investigation and left the store. The plaintiff was not taken to jail and following the questions from the officers left the store.
In the telephone conversation between Dr. Hiers and the police officer, Dr. Hiers had been unable to recall the prescriptions or having written them for the plaintiff and Mrs. Wright. After taking Mrs. Wright to jail, Sergeant Galvin sent another policeman to Bamberg with Mrs. Wright's prescription. It was presented to Dr. Hiers who identified it as having been issued by him. Mrs. Wright was thereupon released from custody. Following the release of Mrs. Wright, both she and the plaintiff obtained counsel and filed suit against the present defendants. Both suits were brought in the State Court, but when the plaintiff thereafter moved to the State of Florida and the complaint was amended to show such residence, her case was removed to this court under the Diversity Statute.
Photostatic copies of the prescriptions were introduced into evidence after being identified by the plaintiff, Mrs. Wright and defendant Green. On the prescription the plaintiff gave her address as Bamberg, South Carolina, although she had never lived in the area. The prescription obtained by Mrs. Wright gave her address as Olar, South Carolina, which is near Bamberg, where Mrs. Wright once worked. At the time plaintiff presented her prescription for filling, she was asked her address by the pharmacist and stated Bamberg, which was written on the prescription by the pharmacist, since the original address was blurred or illegible....
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