Jacques v. Sears, Roebuck & Co., Inc.

• Decision Date: 08 June 1972
• Citation: 334 N.Y.S.2d 632,285 N.E.2d 871,30 N.Y.2d 466
• Parties: , 285 N.E.2d 871 Henry JACQUES, Appellant, v. SEARS, ROEBUCK & COMPANY, Inc. et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 632

334 N.Y.S.2d 632

30 N.Y.2d 466, 285 N.E.2d 871

Henry JACQUES, Appellant, v. SEARS, ROEBUCK & COMPANY, Inc. et al., Respondents.

Court of Appeals of New York.

June 8, 1972.

Beverly A. Michaels, Syracuse, for appellant.

William L. Allen, Jr., Syracuse, for respondents.

BREITEL, Judge.

Section 218 of the General Business Law gives a retail merchant a defense in an action for false arrest and imprisonment for its detention of a suspect shoplifter if reasonable. The issue is whether the merchant's defense extends to the arrest outside its store and to the continuing custody, including that by the police, of one who left the store with unpaid-for merchandise.

The appeal comes to this court with plaintiff's complaint dismissed, after a general jury verdict in his favor in the City Court of Syracuse. The Onondaga County Court had reversed and ordered a new trial on the ground that the jury's general verdict was inconsistent with its answer to a special interrogatory submitted to it. The Appellate Division modified to dismiss the complaint.

The order of the Appellate Division should be affirmed. The jury response to the interrogatory that plaintiff was detained for a reasonable time and that there were reasonable grounds for detaining him gives the merchant a complete defense under the statute. The ensuing custody in the hands of the police was based on at least the same reasonable grounds and is not distinguishable from the preceding period of detention.

On May 7, 1966, plaintiff Jacques, a self-employed carpenter with only three fingers on one hand, entered a Sears, Roebuck store in Syracuse to purchase business supplies. He picked up 19 reflectorized letters and numbers worth 10 cents apiece and put them in his pants pocket. Hen then selected a mailbox and had two extra keys made. He paid for the mailbox and keys, but not for the letters. He also bought a bulletin board, chalk, an eraser, and a pencil sharpener. He left the store without paying for the letters still in his pocket. At the time he had over $600 in cash and a $400 check in his wallet.

Mr. Varisco, an individual defendant and a Sears security officer, had observed plaintiff put the letters in his pocket and leave the store without paying. As plaintiff approached his automobile in the store parking lot, Varisco stopped him and told him he was under arrest. Varisco took him back to the security office. There plaintiff filled out a questionnaire in which he admitted having taken the letters without paying. He said he wished then to pay for the letters; that he was 'sorry about the whole thing'; and that he 'would never do anything like this again.'

Sears' security officers called the Syracuse police who arrived about 20 minutes after the detention began. With the security officers accompanying them, the police took plaintiff to police headquarters, booked him, and later released him on bail. Two days later plaintiff appeared before the police court and stated that he was guilty of petit larceny. The court, however, refused to take a plea and advised him to get a lawyer. Later the charge of petit larceny was dismissed on motion of an Assistant District Attorney because of lack of proof of intent.

In this action for damages the jury was charged that if the detention by Sears was reasonable, no damages could be awarded from the time plaintiff was taken into custody until the time when he was turned over to police officers. In answer to an interrogatory submitted by the court, the jury found that plaintiff was 'detained for a reasonable time at Sears Roebuck & Co. and (that) there (were) reasonable grounds to detain him.' Nevertheless, the jury returned a general verdict in favor of plaintiff in the amount of $1,600. The trial court sustained the verdict as being consistent, stating that the reasonableness of the 'detention' went 'only * * * to mitigation of damages'. In reversing and ordering a new trial the County Court held the jury's general verdict inconsistent with the finding of reasonable detention. The Appellate Division also held the jury verdict inconsistent, and in light of the 'overwhelming evidence' supporting the finding of reasonable detention, dismissed the complaint.

Where a general verdict is inconsistent with answers to interrogatories, the trial court, after the jury is discharged, has discretion to enter a judgment in accordance with the answers or order a new trial (CPLR 4111, subd. (c)). Thus, if there was an inconsistency, the trial court did not have the choice of entering a judgment on the general verdict. The Appellate Division has the same power to exercise discretion as the trial court (CPLR 5501, subd. (c); 7 Weinstein-Korn-Miller, N.Y.Civ.Prac., 5501.22; Cohen and Karger, Powers of the New York Court of Appeals, p. 583). Consequently, assuming that the jury verdict was inconsistent, and assuming that reasonableness of the detention was a complete defense, this court may not review the Appellate Division's determination to enter judgment on the interrogatory based on what it termed 'overwhelming evidence' rather than ordering a new trial (cf. Kennard v. Welded Tank & Constr. Co., 25 N.Y.2d 324, 328, 305 N.Y.S.2d 477, 479, 253 N.E.2d 197, 199).

Plaintiff contends that the term 'detention' in section 218 does not encompass an arrest, and that, therefore, it does not provide a defense for a 'reasonable' arrest. Under this theory, reasonable detention of plaintiff for questioning would not provide a defense for an arrest not resulting in conviction. Plaintiff also contends that the arrest continued during the time defendant Varisco accompanied plaintiff and the policemen to the police station. Thus, plaintiff would explain the jury's finding of reasonable detention as not foreclosing damages either for the arrest or for the continued detention after the police arrived.

Section 218 of the General Business Law, enacted in 1960, provides merchants a defense in various types of actions including actions for false arrest: 'Defense of lawful detention. In any action for false arrest, false imprisonment unlawful detention, defamation of character, assault, trespass, or invasion of civil rights, brought by any person by reason of having been detained on or in the immediate vicinity of the premises of a retail mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense to such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer or by the owner of the retail mercantile establishment, his authorized employee or agent, and that such peace officer, owner, employee or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny on such premises of such merchandise. As used in this section, 'reasonable grounds' shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a retail mercantile establishment, and a 'reasonable time' shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise.' The section has been interpreted to make 'reasonable detention' a defense in an action against a merchant for false arrest, thus wiping out plaintiff's asserted distinction between 'arrest' and 'detention'. In People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625, this court stated that 'Section 218 of the General Business Law, Consol.Laws, c. 20, makes reasonableness of arrest available to retail stores and their employees as a defense to civil false arrest suits' (Id., at p. 380, 292 N.Y.S.2d at p. 876, 239 N.E.2d at p. 627). In Roker v. Gertz Long Island, 34 A.D.2d 680, 310 N.Y.S.2d 536, the court held that where the plaintiff was arrested and taken to the police station as part of a continuing investigation, section 218 would provide a complete defense if the jury found the continued detention reasonable (accord, Tota v. Alexander's, 63 Misc.2d 908, 910, 314 N.Y.S.2d 93, 94).

The legislative history indicates a purpose to protect merchants from false arrest suits even where the criminal actions are eventually dismissed (N.Y.Legis. Annual, 1960, pp. 146, 568). The Governor's memorandum stated in part: 'The sponsors of this measure urge that it will reduce such costs by helping to overcome the extreme reluctance with which merchants now attempt to interfere with or apprehend shop-lifters. This reluctance is apparently caused by the vulnerability of merchants to suits for false arrest in the event of dismissal of the criminal case against a shop-lifter.'

The words 'arrest' and 'detention' have traditionally been used interchangeably. Professor Alexander in his treatise, The Law of Arrest, uses the following definition: 'An 'arrest' is the detaining of a person, the obtaining of the actual physical control and custody of him, and retaining it against his will and without his consent, under some real or assumed authority' (vol. 1, at p. 353). He notes that the word "arrest' is derived from the French word Arreter, which means to stop, to detain, to hinder, to obstruct' (id.). He defines 'imprisonment' as 'an arrest, a detention, a...