Lukas v. J. C. Penney Co.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; ROSSMAN; This is an appeal by the defendant; McALLISTER; PERRY; GOODWIN
• Citation: Lukas v. J. C. Penney Co., 233 Or. 345, 378 P.2d 717 (Or. 1963)
• Decision Date: 14 February 1963
• Parties: Jessie E. LUKAS, Respondent, v. J. C. PENNEY COMPANY, a corporation, Appellant.

Page 717

378 P.2d 717

233 Or. 345

Jessie E. LUKAS, Respondent, v. J. C. PENNEY COMPANY, a corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued before Department 1 and Submitted Oct. 4, 1962.

Reargued Feb. 6, 1963.

Decided Feb. 14, 1963.

James W. Morrell, Portland, argued the cause for appellant. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell, Portland.

Roscoe C. Nelson, Portland, argued the cause and filed the brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, J. C. Penney Company, from a judgment which the circuit court entered in favor of the plaintiff in an action which averred that the defendant wrongfully detained the plaintiff in the defendant's custody upon a false claim that she had shoplifted a dress from one of the defendant's Portland stores. The answer, in addition to denials, pled that if the defendant detained the plaintiff, the detention was made in good faith and with reasonable cause for believing that plaintiff had committed the crime of shoplifting. It alleged that all of the defendant's conduct was in good faith, in a reasonable manner, and for no more than a reasonable length of time. The jury's verdict and the court's resulting judgment were in the sums of $4,000 general damages and $500 punitive damages.

The first and the second assignments of error challenge respectively rulings which denied the defendant's motions for an involuntary nonsuit and a directed verdict. The third is based upon a ruling which denied the defendant's motion to withdraw the plaintiff's averments of malice 'on the ground that there is no evidence here of malice sufficient to take the issue of punitive damage to the jury.' The fourth assignment of error is based upon the refusal to charge the jury that 'the defendant's employee had reasonable cause under the statute, which is Section 164.392, ORS,--reasonable cause to detain and interrogate the plaintiff and remaining for the jury the only question as to whether or not the method and time of detention was reasonable.' The fifth (the last) assignment of error complains because the trial judge denied the defendant's motion to strike from the complaint the averments that the plaintiff was subjected to a search.

We will now consider the fourth assignment of error and in so doing will take note of the episode which resulted in the institution of this action.

ORS 164.392, above mentioned, provides:

'(1) Notwithstanding ORS 133.550 and subsection (2) of ORS 133.560, a peace officer, merchant or merchant's employe who has reasonable cause for believing that a person has committed the crime of shoplifting under subsection (1) of ORS 164.390 may detain and interrogate such person in regard thereto in a reasonable manner and for a reasonable time.

'(2) Where a peace officer, merchant or merchant's employe, with reasonable cause for believing that a person has committed the crime of shoplifting as defined under subsection (1) of ORS 164.390, detains and interrogates him in regard thereto, and such person thereafter brings against the peace officer, merchant or merchant's employe a civil or criminal action for slander, false arrest, false imprisonment, assault, battery or wrongful detention based upon the detention and interrogation, such reasonable cause shall be a defense to the action if the detention and interrogation were done in a reasonable manner and for a reasonable time.'

In midafternoon of November 11, 1959, the plaintiff and her granddaughter entered the store of the defendant which is located at Fifth and Washington Streets in Portland and went to the dress department where they hoped to find a white dress suitable to the needs of the granddaughter whose name is Barbara Lukas. The defendant's dress department is upon the second floor of its building. In the morning of that day Barbara had gone to the plaintiff's home and had helped her grandmother with housecleaning. At the conclusion of that work Barbara placed her work clothes in her grandmother's shopping bag and then the two went downtown and eventually entered the defendant's aforementioned store. When they went upon their shopping tour Barbara carried with her the shopping bag and its contents.

Before the two reached the defendant's dress department they visited similar departments in other stores. When they came to the defendant's dress department no clerk was available so they took a couple of dresses from a hanger into one of the dressing rooms and Barbara tried them on. Presently a clerk (Mrs. Groom) approached the dressing room and after speaking to the plaintiff brought some dresses. Barbara tried on the dresses which were rendered available to her, but none of them seemed suitable except a white one. Upon that development the plaintiff recommended that Barbara should keep the white dress in mind and that before making a choice they should visit a store known as Bedell's. She further testified that since the hour was in the vicinity of 4:30 p. m. she suggested that they should proceed rapidly lest the Bedell store close before they could reach it. Barbara acquiesced and redressed. In the meantime the plaintiff returned some dresses to the racks. When Barbara was prepared to leave, the two looked for a clerk but finding none returned, so they swore, the white dress to a rack and left for Bedell's. When they had gone a few feet upon the Fifth Street sidewalk toward Bedell's the incident occurred upon which this case is based. In describing it the plaintiff (referring to Barbara as Jeanie) testified:

'We got down about halfway to the corner from the store and that is Washington Street corner there, and there was a man come running up behind us and he said we had a white dress in that shopping bag. And Jeanie, she told him, 'If you want to see in that shopping bag, you show your credentials.' He said, 'I don't have to show anything,' he said. And so he kept pulling at the bag and he kept getting so loud and boysteriouslike [sic] and so I was afraid that he might get so mad he might hit one of us because we wouldn't let him have the shopping bag; I took ahold of the shopping bag to keep him from jerking it away from her. And so then he kept getting more louder and boysterous [sic] and all of this bunch of people standing on the corner there, they was a-looking at us, and I was so embarrassed and upset about the whole thing. And Jeanie, she started to cry. And so I said to him, I said, 'If you want to see in this shopping bag,' I said 'there is no white dress in there and no dress of any kind,' but I said, 'I will let you see into it,' because I was getting scared. * * *'

The store employee concerning whom the plaintiff spoke was Mr. Paul N. Hales. When he was granted permission to do so, he looked into the shopping bag but found no dress. He then returned to the store.

Mrs. Groom swore that when she first saw the Lukases she was waiting upon a customer, but spoke to them and brought a couple of dresses to them. She then returned to her customer. Later, when she saw the plaintiff again Barbara had on the white dress and, concerning it she (Mrs. Groom) inquired of the plaintiff, 'Have you decided on this one?' and received the reply, 'Yes.' She further testified that she thereupon wrapped her customer's parcel and after handing it to her 'went back to the dressing room and there was nothing there except an empty hanger.' By 'the dressing room' she referred to the one the Lukases had used. By that time the plaintiff and her granddaughter had left. We quote again from Mrs. Groom's testimony:

'Q. Now, did you look on the rack to see if the dress was back there on the rack?

'A Yes, sir.

'Q Did you find the dress?

'A No, I didn't.'

She next swore that she reported the incident to her superior (Mrs. Turnage) and that the two of them made a quick search for the white dress but could not find it. According to her, she was not told that the Lukases were going to the Bedell store. She thought that the Lukases were in the dress department 'maybe 30, 45 minutes,' and she did not see them depart. According to her, 'We only had one white sheath dress in size 14, the only one in the store.' It was that dress that Barbara tried on and which, it is claimed, disappeared. Mrs. Groom testified that before she reported the incident to her superior she had examined the rack from which the white dress was taken and 'I would say approximately four' others. Immediately thereafter, according to her, 'all the girls got together and we went through everything' in search for the dress. By the term 'all the girls' she referred to the six salesladies in the department. Mrs. Turnage, upon receiving the report from Mrs. Groom, went to the first floor where she reported the incident to Mr. Hales. Through quotation from the plaintiff's testimony we have mentioned the plaintiff's version of what then took place.

The Lukases testified that they found a suitable dress in Bedell's and purchased it. Further, they testified that on the afternoon of the day following the unfortunate episode they returned to the dress department of Penney's and found the white dress 'right where we put it' the preceding afternoon. The Lukases did not give any impression of the length of time that the incident in the street lasted by estimating it in terms of minutes, but Mr. Hales testified, 'It couldn't have been over two minutes.' The Lukases mentioned incidents and exchanges of words that occurred in the street; from them the jury could have inferred that the incident consumed two minutes or possibly more.

It will be noticed from the testimony which is reviewed in preceding paragraphs that Hales was prompted by a belief that the white dress was in the shopping bag. He wished to gain control of the bag in order to search its contents. Such being his purpose, he took hold of Barbara's arm and...