Jack Eckerd Corp. v. Smith

• Decision Date: 09 March 1990
• Docket Number: No. 88-2775,88-2775
• Citation: 558 So.2d 1060
• Parties: 15 Fla. L. Weekly D680 JACK ECKERD CORPORATION, Appellant, v. Delores SMITH, Appellee.
• Court: Florida District Court of Appeals

Page 1060

558 So.2d 1060

15 Fla. L. Weekly D680

JACK ECKERD CORPORATION, Appellant, v. Delores SMITH, Appellee.

No. 88-2775.

District Court of Appeal of Florida First District.

March 9, 1990.

Rehearing Denied April 19, 1990.

Jeptha F. Barbour of Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, for appellant.

S. Perry Penland, Jr., of Penland, Penland & Pafford, P.A., Jacksonville, for appellee.

CAWTHON, VICTOR M., Associate Judge.

Jack Eckerd Corporation (Eckerd) appeals a final judgment awarding Delores Smith compensatory and punitive damages in her action for false imprisonment and malicious prosecution. The only point which merits discussion is Eckerd's contention that the award of punitive damages was error. We agree that the evidence presented was legally insufficient to support an award of punitive damages and that the trial court should have directed a verdict in Eckerd's favor on this issue.

This case arises out of an alleged shoplifting incident at Eckerd. Late one evening after work, Delores Smith went to a Jacksonville Eckerd to pick up two prescriptions of medicine. She went to the pharmacy counter where she received her medicine from a clerk, Maurice Hodges, and signed a prescription log book. Because of her husband's insurance, Smith was only required to pay $1.00 on each prescription. According to Smith, she offered to pay Hodges, but was told that she needed to pay at the front of the store. She picked up a few more items and returned to the front counter. Smith testified that she laid all of her items, including the medicine in a prescription bag, on the counter. The cashier, Elizabeth Robinson, rang up the items and asked for $11.18. Smith gave Robinson $20.00 and received $8.82 in change. According to Smith, Robinson put the household items in a small bag and she put her prescription medicine in her purse. Smith attempted to leave the store and an alarm went off. A checkpoint alarm system in the store is activated by a tag on merchandise which is normally detuned and deactivated upon receipt of payment.

Smith returned to Robinson in an attempt to determine what had caused the alarm to go off. They determined that the household items were accounted for on Smith's receipt and were somewhat perplexed when the assistant manager, Alfred Lederer, joined them at the cashier's desk. At this point, Smith took the prescription bag from her purse commenting that perhaps her medicine was the problem. According to Smith, she paid Robinson $2.00 for the medicine in Lederer's presence; but Lederer disputes this, testifying that without authority, Robinson permitted Smith to pay when Lederer had gone to the back of the store to talk to Hodges.

When Lederer returned from the back of the store after talking to Maurice Hodges, he asked Smith to accompany him to his office. He began filling out a report and shortly thereafter, Officer Green arrived. Smith became upset and started crying and Officer Green testified that he didn't remember her offering any explanation of the circumstances. Based on the facts that Officer Green learned from Lederer--that appellant had been told by Hodges to return to the front of the store to pay for her medicine, that her medicine was concealed in her bag, and had not been paid for when she attempted to leave the store--Officer Green determined there was probable cause to arrest. He did not take Smith to the jail to book her, but instead gave her a notice to appear. Before Smith left, Lederer took her medicine as evidence and gave her $2.00 back.

A criminal prosecution followed. Smith's lawyer, Dave Douglas, had difficulty locating Elizabeth Robinson but eventually her deposition was taken. For trial, the assistant state attorney didn't subpoena either Robinson or Hodges, so Douglas subpoenaed them. After the jury was sworn for Smith's criminal trial, and while the jury was being given its preliminary instructions, Robinson appeared at the courtroom door and attempted to come in. There was a slight commotion at the door, noticed by both attorneys and the court. The assistant state attorney asked for a brief recess to talk to Robinson. Both attorneys stepped outside the courtroom, where the assistant state attorney confirmed that the individual at the courtroom door was Elizabeth Robinson. The assistant state attorney returned to the courtroom and nolle prossed the state's case against Smith.

Thereafter, Delores Smith and her husband filed a complaint against Eckerd alleging false imprisonment and malicious prosecution. Neither Elizabeth Robinson nor Maurice Hodges could be located to testify in this civil trial, and the trial court determined that the plaintiffs could not use their deposition testimony. At the civil trial, Officer Green testified that when he was called to Eckerd, Lederer told him that Mrs. Smith attempted to leave the store without paying for her prescriptions, the alarm went off, and he confronted her. He gave himself as a witness, but did not tell Officer Green that there were other witnesses, namely Robinson or Hodges. Officer Green was asked if he would have arrested Mrs. Smith if he had known that Elizabeth Robinson, the cashier, forgot to ring up the purchase, and that after the alarm went off, Mrs. Smith paid for the medicine, and Officer Green answered that under those circumstances, he wouldn't have arrested Mrs. Smith.

Mrs. Smith testified that after the alarm went off, she realized that Robinson had mistakenly overlooked her prescriptions. She testified:

Q. Now, the prescription comes out of your bag--I'm trying to orient you. At the time after the prescription comes out of your bag, he says, "No wonder you didn't pay for it?"

A. "No wonder, she didn't ring it up because it was in your purse."

* * * * * *

Q. Let me ask you a question, Ms. Smith. Now, does the manager in your presence ever ask Elizabeth Robinson if you put the prescriptions up on the counter, if you paid for it?

A. No, sir.

She described Lederer:

He was very calm. He didn't act nasty with me at all. He just told me to come up in his office and he got the papers and wasn't nasty or anything. He just, like he said, he did what he had to do. That's what he said to me.

Lederer testified that he didn't actually see Robinson ringing up Smith's purchases or even become aware of Smith until after the alarm sounded and Smith returned to the cashier. He had no recollection of asking Ms. Robinson if she had forgotten to detune and deactivate the tag on Smith's prescriptions. He had no knowledge of whether or not Smith put her prescription on the counter for Robinson to ring up. He did not remember talking to Robinson or Smith ¹ and made up his mind to call the police after Smith removed the unpaid-for prescription from her purse where they had been concealed and after talking to Hodges and learning that Smith had been told to pay for the prescriptions at the front counter. Though he admitted that it would have been a good practice to talk to the cashier and suspect, he commented that they never offered any explanation to him of the incident. Neither of them told him about a potential mistake, Mrs. Smith's only comment being "this must be it" when she removed the prescription bag from her purse. He testified that he gave Officer Green all of the information he knew and that he called the police so that the police could determine if Smith should be arrested for shoplifting. He testified that he never called the state attorney's office or put pressure on the state attorney's office to continue the shoplifting prosecution against Smith. He followed Eckerd's policy to call the police and report the incident because there had been "concealment" of the prescription in Smith's purse.

The jury returned a verdict finding that Eckerd had maliciously prosecuted Delores Smith and falsely imprisoned her. They awarded her $25,000.00 compensatory damages, but they awarded her husband, Wilbur, zero damages. They awarded punitive damages of $100,000.00 against Eckerd.

In opposition to Eckerd's motion for a directed verdict, Smith argued to the trial court that the proof of malice required to make out a cause of action for malicious prosecution is also sufficient evidence of malice to permit a jury to award punitive damages as punishment. This is not necessarily true. Legal malice, which may be implied or inferred from an absence of probable cause, must be proved in order to recover compensatory damages in a malicious prosecution action, and such proof of legal malice may be sufficient for recovery of punitive damages as well, if it encompasses a showing of moral turpitude or willful and wanton disregard of the plaintiff's rights, which presupposes the defendant's knowledge or awareness of the risk to plaintiff's rights, or evidence of excessive and reckless disregard of the plaintiff's rights. ² Legal malice based solely upon the want of probable cause is not sufficient to support an award of punitive damages. Winn Dixie Stores, Inc. v. Gazelle, 523 So.2d 648, 650 (Fla. 1st DCA 1988); and Harris v. Lewis State Bank, 482 So.2d 1378, 1385 (Fla. 1st DCA 1986). In Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 223 (Fla.1936), the court commented on the evidence necessary to support punitive damages as follows:

Turning now to the case at bar, it is evident upon the statement of the facts heretofore given that there is present in the case no such evidence of evil intent, actual or presumptive, as is necessary to sustain a recovery of punitive or exemplary damages for the particular wrong shown. On the contrary, it appears from the evidence that while the defendant has become liable to plaintiff to make compensation to her for humiliation, indignity, and mental suffering occasioned by the defendant's wrongful interference with her peaceful security of person and reputation, the wrong done was the result of an honest, but mistaken suspicion on the part of the defendant's...