Levy v. Duclaux
| Decision Date | 09 December 1975 |
| Docket Number | No. 7117,7117 |
| Citation | 324 So.2d 1 |
| Parties | Mrs Leonard LEVY v. Mrs. Gayle K. DUCLAUX and Mrs. Patsy Desforges, d/b/a the Lazybug Shop, Defendants-Appellants, and Employers-Commercial Union Insurance Company of America, Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Stephen R. Plotkin, New Orleans, for plaintiff-appellee.
Henican, James & Cleveland, C. Ellis Henican New Orleans, for defendants-appellants.
Drury, Lozes & Curry, Rene A. Curry, Jr., New Orleans, for defendant-third party defendant-appellee.
Before STOULIG, SCHOTT and MORIAL, JJ.
This action for damages arose out of an incident which occurred on September 30, 1971, in a shop owned and operated by defendants, Duclaux and Desforges, where plaintiff was accused of shoplifting by one of defendants' employees. The primary defense was immunity from liability by virtue of LSA-C.Cr.P. Art. 215 and the comment thereunder. Defendant insurer also defended on the basis that its policy of insurance on the shop owners did not protect them against the loss pleaded and proved at the trial. Mrs. Duclaux and Mrs. Desforges also filed a third-party demand against the insurer seeking indemnification and cost of their defense.
The trial judge awarded to plaintiff judgment for $3,250 against Duclaux and Desforges but dismissed the main and third-party demand against the insurer. Mrs. Duclaux and Mrs. Desforges have appealed and plaintiff answered the appeal, seeking an increase in quantum, but the judgment dismissing the main demand against the insurer is final.
Plaintiff's evidence mainly consisted of her own testimony and that of two other customers who were in the store at the time of the incident. Defendants' evidence mainly consisted of the testimony of Mrs. Duclaux, her sister, an employee and another customer. As usual, there are numerous minor discrepancies in the testimony of these various witnesses but certain facts are uncontradicted.
The store operated by defendants was a small ladies dress shop, containing approximately 1,000 square feet of floor space. On the evening of the incident the store was conducting a 'midnight sale' during which the purchase of two dresses would entitle the purchaser to a third one free. Plaintiff entered the store in the company of her four year old child, and after making several selections from a dress rack she stood in a line of customers who were waiting to enter dressing rooms where they could try on the garments they were considering purchasing. Stationed at the head of this line was Carol Johnson, an employee of the store, who had the duty of counting the garments each customer had prior to her entering the dressing room and counting the garments each customer had on her exit from the dressing room so as to eliminate the possibility of a theft occurring while a customer was inside a dressing room. Johnson recorded these numbers on a pad.
At this point the evidence is somewhat conflicting. According to plaintiff, she had selected and had with her five garments with hangers when she arrived at the head of the line and was confronted by Johnson. But Johnson testified that she then counted six garments with hangers at which time plaintiff told her that she had only five. Thus, Carol Johnson was then aware of a serious and significant discrepancy between the number she had counted and entered on her record and the number which plaintiff was saying she had. Yet Johnson said and did nothing to resolve this discrepancy, but, instead, permitted plaintiff to enter a dressing room.
Upon her exit from the dressing room plaintiff had five garments as she had indicated before she went in. She returned the garments to Johnson and returned to the dress rack a few feet away for the purpose of selecting a third garment to go with two of the others which she intended to purchase. At some point in this period of time she was approached by Johnson with questions as to whether plaintiff had taken merchandise belonging to the store. Johnson was apparently convinced that plaintiff had a sixth garment all along since before she entered the dressing room. Plaintiff and her two witnesses testified that Johnson was joined by another store employee, that they grabbed plaintiff while Johnson continued to question her and that they tugged at her purse. This testimony on physical restraint was contradicted by Johnson and another customer called by defendants, but a sister of the store owner who was stationed at the front door of the premises admitted that she stopped plaintiff in an attempt to prevent her from leaving and to enable Johnson to question plaintiff. There is also a conflict as to whether plaintiff left the store or not with plaintiff and her two witnesses saying that she never left the store and defendants' witnesses testifying that she did leave with Johnson right behind her, both to return a few minutes thereafter. Whether she left or not plaintiff then emptied her purse on the floor of the store and raised her blouse and lowered her slacks within sight of the store owner and everyone else in the shop to show the absence of any garment beneath her own clothing. During these events there were from 40 to 60 people in the store and plaintiff became progressively excited to the point of crying and becoming hysterical.
The trial judge in reasons for judgment made a number of factual determinations and resolutions of conflict in the testimony of the witnesses which are accepted by us, since there is no manifest error with respect to these determinations. He found that the trial revolved around the testimony of the various witnesses 'as to whether or not there was . . . an accusation against the plaintiff, a search of the plaintiff and/or a detention of the plaintiff . . .' He summarized the facts as follows:
'The defendants' witness testified that she was checking the customers prior to the time that they went into the dressing room, and, when she reached the plaintiff, she counted the garments and allegedly counted six garments. The employee then asked the plaintiff how many garments she had, and the plaintiff indicated that she had five garments and not six. It would appear to this Court that, since the checker was there and the purpose of the checker being there was to avoid any sort of shoplifting, that the checker should have, at that time, called to the attention of the plaintiff an error, if one existed, as to the number of pieces. The evidence indicated from the testimony of the defendants' witness that she jotted down the number six without calling to the attention of the plaintiff the discrepancy. The plaintiff testified that she picked out five pieces of clothing, but there was a long waiting line at the time that she got there of some five or six people, that she knew they were checking the number of pieces for each person who went inside the dressing room and told the checker that she had five pieces.
'. . . the plaintiff . . . after a series of, evidently, confrontations or conversations with the defendant, or its employees did certain gestures such as dumping her purse on the floor to show that she had nothing that belonged to the defendants, pulled her pants down some four inches to show, evidently, that she had nothing under her pants which might belong to the defendants, and, as indicated by most people, became extremely hysterical and did not completely recover until her husband arrived and calmed her down. . . .'
The court found that plaintiff was 'an extremely high strung individual, evidently easily taken to becoming extremely nervous in any sort of situation of stress' and that she did become 'anywhere from loud to hysterical.' He concluded that plaintiff suffered damage consisting of humiliation and embarrassment in the presence of a crowd of between 40 and 60 people, for which she was entitled to compensation in the amount of $2500 and mental pain and suffering, which he found from her testimony persisted until the trial began in October, 1973, and ended in April, 1974, for which he awarded her $750.
In this Court defendants contend, as they did in the trial court, that they are immune from liability by virtue of LSA-C.Cr.P. Art. 215 and comment (e) thereto which provide as follows:
'OFFICIAL REVISION COMMENT
Defendants argue that there is an implicit error in the trial judge's reasons in that he did not make a factual determination that defendants did not have reasonable cause to believe that plaintiff had committed a theft before they detained her for question. They contend that they had such reasonable cause and were therefore clothed with the immunity from civil liability discussed in the comment (e)....
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