Lewis v. Farmer Jack Div., Inc., Docket No. 65976

• Citation: 327 N.W.2d 893,415 Mich. 212
• Decision Date: 20 December 1982
• Docket Number: Docket No. 65976,No. 11,11
• Parties: Herbert Smith LEWIS, Plaintiff-Appellant, v. FARMER JACK DIVISION, INC., a Michigan corporation and Borman's, Inc., a Michigan Corporation, jointly and severally, Defendants-Appellees. Calendar415 Mich. 212, 327 N.W.2d 893
• Court: Supreme Court of Michigan

Page 893

327 N.W.2d 893

Herbert Smith LEWIS, Plaintiff-Appellant, v. FARMER JACK DIVISION, INC., a Michigan corporation and Borman's, Inc., a Michigan Corporation, jointly and severally, Defendants-Appellees.

Docket No. 65976.

Calendar No. 11.

415 Mich. 212, 327 N.W.2d 893

Supreme Court of Michigan.

Argued Nov. 12, 1981.

Decided Dec. 20, 1982.

Milia & Curran by Robert P. Milia, Detroit (Faintuck, Shwedel, Wolfram, McDonald, & Zipser, by William G. Wolfram, Farmington Hills, of counsel), for plaintiff-appellant.

Gromek, Bendure & Thomas by Mark R. Bendure, Detroit, for defendants-appellees.

LEVIN, Justice.

Detroit police officers arrested Herbert Smith Lewis on information supplied by Donna Holiday who identified Lewis to the police officers as one of the persons who had committed an armed robbery at a Farmer Jack supermarket in which she had been employed as a cashier. The arrest occurred five months after the robbery, when Lewis patronized another Farmer Jack market where Holiday was then employed. At her request, the police were called.

Subsequent investigation disclosed that Holiday was mistaken in her identification, and the charges against Lewis were dismissed.

Lewis had, however, been incarcerated, and he brought this action for false arrest against Holiday's employer, Farmer Jack.

The Court of Appeals set aside the jury's verdict of $40,000 on the ground that the evidence did not establish a cause of action for false arrest. We agree.

A false arrest is an illegal or unjustified arrest. ¹ On the basis of information provided by Holiday and her identification of Lewis, the police had probable cause to conclude that a felony had been committed and that Lewis had committed it. Thus, looking at the arrest from the point of view of whether the police, who made the arrest, had the legal right or justification to act as they did, the arrest was legal and justified and was not a false arrest. ²

It is said, however, that Holiday and Farmer Jack are subject to liability because Holiday instigated the arrest by pointing to Lewis and saying "Yeah, that's the one". In so pointing to Lewis, Holiday did no more, and the manager in telephoning the police had done no more, than provide information. The police acted on and in the exercise of their own judgment and not at the direction of Holiday or the manager. ³

Lewis argues that Farmer Jack is subject to liability because Holiday and other employees of Farmer Jack withheld information from the police and, thus, the police were not acting on the basis of complete information.

Because we conclude that Lewis failed to establish that information was withheld, we need not decide whether withholding information might justify imposing liability for false arrest. ⁴

Lewis claims that the jury could have reasonably concluded that the employees of Farmer Jack misrepresented or withheld information on the basis of the discrepancy between the composite description and Lewis's physical characteristics. The record does not, however, indicate that Holiday described Lewis in the manner in which the composite description described him. While she participated in supplying information for the composite description, it does not appear whether she saw the composite description after it was prepared. ⁵ At the trial, some seven years later, she could not recall how she had described the robber, and her acknowledgment that she had participated in providing a composite description does not support an inference that she withheld information from the police when they were summoned five months after the composite description was prepared. ⁶ The assistant manager at the store where Lewis was arrested was also at the store that was robbed; he too had been transferred. He did not testify at the trial. There is nothing in the record tending to show that he saw the composite description or that he gave any information describing the robber who had confronted Holiday. ⁷

Lewis stresses that Holiday had claimed to have seen the robber patronizing Farmer Jack stores on a number of occasions after the robbery and had reported these sightings to managers who had not called the police. It is urged that the jury could properly conclude that the reason why the police were not called was because the managers did not credit her identification, that the police should have been told of these doubts, and that information might have caused them to proceed more cautiously in acting on Holiday's identification of Lewis.

The record does not, however, support an inference that managers on duty when Lewis was arrested did in fact doubt her identification. It is as likely that the managers decided not to call the police on the earlier sightings because the man she thought was the robber had left the store on each occasion before she was able to reach the manager's office. The jury had no basis for inferring that the reason the police were not called was doubt regarding Holiday's identification on these earlier sightings rather than the managers' believing that it would not have been appropriate to call the police after the man sighted could not be readily apprehended.

Lewis did not show that Holiday had on an earlier occasion identified someone other than Lewis. ⁸ It is nevertheless separately urged that the police should have been informed that Holiday thought she had seen the robber a number of times. The failure to inform the police that there had been earlier sightings by Holiday does not alone make a prima facie case in false arrest for withholding information, assuming, again, that withholding information may be actionable as false arrest.

Affirmed.

FITZGERALD, C.J., and KAVANAGH, COLEMAN and RYAN, JJ., concur.

WILLIAMS, Justice.

This case involves a false arrest. One of defendants' stores was the scene of an armed robbery during which a cashier was confronted by one of the two armed robbers. Subsequently, the cashier reported to the store manager on several occasions that she had seen the robber at the store where the robbery occurred and at another one to which she had been transferred. However, not until months later when she complained of seeing him three times at the store in one day did the manager call the police. On arrival the police were directed by the manager to the cashier, in hiding, who described, then pointed out, plaintiff as the robbery suspect. The police arrested, handcuffed and jailed plaintiff. In point of fact, plaintiff was a Farmer Jack check-cashing-card customer and was out of the state on business on the day of the robbery. He sued and won a jury verdict for false arrest, despite defendants' motion for directed verdict. The Court of Appeals reversed.

This case raises two major issues. First, whether the facts established merely a citizen reporting information to the police who in their independent judgment arrested an innocent shopper, or a police arrest "instigated" or "directed" by a citizen. Mere citizen reporting is not actionable, whereas citizen "instigating" or "directing" may be actionable. Second, what constitutes legal justification for a mistaken arrest? This issue includes three sub-considerations: (a) whether the arrest in the instant case was the result of mere citizen reporting or active citizen "instigation" is important because legal justification is different for a police officer than for a citizen making an arrest; (b) what constituted legal justification under Michigan common law prior to 1927 P.A. 175; and (c) whether 1927 P.A. 175, which defines the power of a private person to arrest, changed the common law of legal justification.

We hold (1) that, giving the plaintiff the benefit of the most favorable inferences from the facts, as we must on defendants' motion for directed verdict, the jury was entitled to find, as they did, that defendants' employees did more than merely report information to the police but, rather, "instigated" plaintiff's arrest; (2) that therefore the question of legal justification for the arrest related to whether defendants' employees, not the police, had legal justification; and (3) that prior to the enactment of 1927 P.A. 175 an arrest by a citizen was legally justified, if (a) in fact a felony had been committed, and (b) the citizen had probable cause to believe that the person arrested committed that felony; (4) that 1927 P.A. 175 may well have changed the common law of justification for arrest. As a consequence, (1) we reverse the Court of Appeals decision that a directed verdict was proper as to defendants' instigating the arrest; (2) we do not decide whether there should have been a directed verdict because of justification on the facts, because we do not decide whether 1927 P.A. 175 changed the common law, as that issue was addressed neither by the Court of Appeals nor the trial court nor argued by the parties before them or before us. We therefore remand the issue of legal justification for the arrest, particularly whether 1927 P.A. 175 changed the common law, to the Court of Appeals for plenary consideration. Since the Court of Appeals did not have occasion to consider the correctness of the trial court's action with respect to jury instructions, the parties shall be given the opportunity to argue this question before the Court of Appeals.

I. FACTS

On Friday evening, October 6, 1972, two armed men entered a Farmer Jack supermarket at 6561 Gratiot at Bellevue in Detroit, subdued a security guard, and proceeded to rob the store. Donna Holiday, a part-time employee of defendant supermarket, was ringing up an order when one of the robbers grabbed her by the arm from behind. When she turned around, the assailant pointed a gun in her face and said: "This is a hold up" [Tr. III, pp. 54-55]. Ms. Holiday followed the gunman's instructions and emptied the contents of her cash register into a paper bag [Tr. III, pp. 58-59; Deposition, p. 10]. Meanwhile, the second robber was taking money from the manager,...