Lampos v. Bazar, Inc.

• Decision Date: 24 October 1974
• Citation: 527 P.2d 376,270 Or. 256
• Parties: John N. LAMPOS, Respondent, v. BAZAR, INC., an Oregon corporation, Appellant. . *
• Court: Oregon Supreme Court

Page 376

527 P.2d 376

270 Or. 256

John N. LAMPOS, Respondent, v. BAZAR, INC., an Oregon corporation, Appellant.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted July 11, 1974.

Decided Oct. 24, 1974.

Edward H. Warren, Portland, argued the cause for appellant. With him on the brief were Hershiser, Mitchell & Warren, Portland.

Joseph F. Ceniceros, Portland, argued the cause for respondent. With him on the brief were Bailey, Doblie & Bruun, Portland.

TONGUE, Justice.

This is an action for malicious prosecution of an employee of the defendant who was arrested and charged with stealing two tires from its store in Medford. The jury returned a verdict in favor of the plaintiff for $20,000 general damages and $17,500 punitive damages. Defendant appeals from the resulting judgment.

Defendant's principal assignment of error is that the trial court erred in denying defendant's motion for a directed verdict upon the ground that plaintiff had failed to prove that the criminal proceeding was initiated by the defendant without probable cause.

Summary of the evidence.

On June 1, 1971 Murray Falk, defendant's 'supervisor for security,' went to Medford to investigate reports of 'violations of security' by employees at one of defendant's stores. Upon arrival in Medford he and Glynn Allen, manager of the store, went to the Medford Police Department to ask for assistance. Detective Sergeant Glen Johnston was given that assignment.

Apparently the first person interviewed by Mr. Falk was Leo Galati, who worked with plaintiff in the automotive section of the store. According to Falk, Mr. Galati told him that 'he had observed merchandise being removed from the store by Mr. Lampos with the assistance of Mr. Wilson.' Mr. Galati was not called as a witness by either party and was apparently unavailable.

The next day Mr. Falk talked to Allen Mayo, plaintiff's immediate supervisor. According to Falk, Mr. Mayo said that he had not authorized Mr. Lampos to take merchandise from the shop and pay for it later and also said that Mr. Lampos 'informed him that he had a special deal worked out with Mr. Wilson' as the result of which Mayo paid Lampos $19.95 for a blender for which the retail price was $26. A statement signed by Mr. Mayo was offered in evidence. In that statement Mayo admitted selling tires and other items for which no payment was made at the time of the sale and admitted forgetting over a weekend to put into the till money received from the sale of other tires. The statement also admitted purchase of the blender from Lampos. Mr. Mayo was also not called as a witness by either party and was apparently unavailable.

Mr. Falk next interviewed Mr. Wilson, another employee. According to Falk, Mr. Wilson told him that 'he had given Mr. Lampos merchandise without benefit of payment.' A copy of a statement signed by Wilson was received in evidence to the effect, among other things, that Wilson gave to Lampos without payment a blender, a mixer and a stuffed dog.

Mr. Wilson was called as a witness by the plaintiff and testified that at the beginning of that interview Mr. Falk said that he had signed statements from employees saying that Wilson was responsible for missing merchandise and cash; that Falk also accused him of lying on his employment application and said that Wilson could not support his five children on his 'net' salary of $139 per week without 'stealing in order to survive' and also told him that for him to allow discounts to employees was 'the same as stealing.' Mr. Wilson testified that he did not tell Mr. Falk that Mr. Lampos was a 'thief,' but had said that he 'had given him (Mr. Lampos) merchandise' and 'had sold to John Lampos certain merchandise at a discount.' Mr. Wilson testified, however, that he made it clear to Falk that by giving merchandise to Lampos and other employees he was referring to giving discounts to them; that these items were sold at a discount, not stolen; and that it was common practice to sell items to employees at a discount.

On June 3, 1971 Mr. Falk and Mr. Allen interviewed the plaintiff. On the previous evening Mr. Wilson had called him and had told him that he was 'suspected.' According to Mr. Falk, plaintiff said that he had paid for the stuffed dog, but admitted that 'he had a set of recap tires that he hadn't paid for but that he had been given authorization by Mr. Mayo to use them and pay later'; that there was then some conversation about paying for the tires, in the course of which plaintiff said that he was willing to pay at the same discounted price that he would pay 'down the street' to another dealer, but that if Falk wanted the tires he could have them. He and plaintiff then went to plaintiff's house, where plaintiff removed the tires from one of 10 cars at plaintiff's home.

At no time during that interview or visit to plaintiff's home did plaintiff contend that he had already paid for the tires, either in full or in part, much less that he had a receipt or any other proof that he had purchased the tires and had made a down payment on them.

Plaintiff testified that Mr. Falk's attitude during the interview was 'very harsh' and 'accusatory'; that Falk said that he had eyewitnesses who had seen Lampos take merchandise from the store and presented him with a written 'confession of a sort,' which he refused to sign, and that as a result of Falk's conduct he was 'rather rebellious.'

Mr. Lampos also testified that Falk asked 'if he could have the tires back and I offered to pay him off,' but at a 'discount price.' He also testified that Mr. Falk asked him directly if he had paid for the tires and that he said 'No, I haven't paid for them yet,' and that he did not tell Falk that he had paid $5 down on the tires, although he knew that Falk was investigating the theft of the two tires.

Plaintiff testified, however, he told Mr. Falk that 'I was buying them (the two tires) on credit and that I had the O.K. of Allen Mayo.' He also testified that at the time of that interview he forgot about a receipt that he had in his wallet that showed that on May 6, 1971 (four weeks prior to the interview) he had paid $5 as a down payment on the tires because he was 'rather frightened at the time' at the thought of going to jail and 'didn't think about it until after I was in jail.'

Mr. Falk and Mr. Allen then concluded the investigaton the next day by talking again to Mr. Mayo. Falk testified that the reason they went back to talk with Mr. Mayo was 'to ask Mr. Mayo whether or not, in fact, he had given any permission or authorization for merchandise to be taken from the shop by Mr. Lampos or * * * to take merchandise and pay for it later'; that Mr. Mayo's reply was 'an emphatic 'no," and Mayo also said that 'he did not know about the two tires and had not given permission to Mr. Lampos to remove the tires and pay later.' Mr. Falk testified that he believed Mr. Mayo even though Mayo was also being investigated.

Mr. Allen, who was present, testified that at the time of that interview 'Mr. Falk asked Allen Mayo if he had given permission to John to purchase two tires on credit, or take two tires, and Mr. Mayo said he knew nothing about it, he had absolutely not given any permission,' and that he had no reason to doubt Mayo's answer at that time. Mr. Allen also testified, however, that in asking that question he 'didn't tie it down with Mr. Mayo as to any particular time when the tires went out,' or 'the place or value' or 'number of tires,' but asked only 'if he had given John permission to take some tires.'

Mr. Falk admitted that the transaction between Lampos and Mayo, as testified to by Lampos, was similar to other transactions in which it was discovered upon investigation of Mayo that he had 'pocketed' money paid to him for goods sold by him at a 'discount.' As previously stated, Mayo had also signed a statement admitting the sale of other tires without receiving payment at the time of the sale. Plaintiff also offered the testimony of another witness, the husband of an employee, who said that he had made discount purchases from employees at the store and that discount sales to employees was a common practice.

After the second interview with Mr. Mayo, Mr. Falk, Mr. Allen and Detective Johnston went to the district attorney, Mr. Justin Smith. In addition to talking to Mr. Smith a police report by Detective Johnston was given to him to read. Mr. Smith testified that he could not recall 'specifically what information' was given to him, but that he recalled reading the police report and discussing it with Detective Johnston; that he 'had the information that the tires had been taken by Mr. Lampos; and according to the police report and what the people in my office told me, they had been taken illegally' and that 'he had taken the tires without paying for them * * * and that there was no record of any purchase by him.'

There was no evidence, however, that any investigation had been made at that time to find out whether or not there was any record of any such purchases by plaintiff. Also, the police report was not offered in evidence. It appears, however, that the report included some statement to the effect that 'the arrangement was to pay for them later' and that plaintiff admitted taking the tires from the store, but denied stealing them.

Detective Johnston testified that 'to the best of his knowledge' there 'was a full disclosure made from what (he) could hear at that time,' without stating details of the conversation. Neither Mr. Falk nor Mr. Allen attempted to testify to any of the specific facts as communicated by them to the district attorney as the result of their investigation. Falk testified, however, that he did 'discuss fully with the District Attorney what (his) investigation had disclosed up to that point' and that he relied upon the advice of the district attorney.

At the conclusion of that meeting, District Attorney Smith told Mr. Falk and Mr. Allen 'that...