May Department Stores Company, Inc. v. Devercelli, 6052.
| Citation | 314 A.2d 767 |
| Decision Date | 14 December 1973 |
| Docket Number | No. 6052.,6052. |
| Parties | MAY DEPARTMENT STORES COMPANY, INC., t/a the Hecht Company, Appellant, v. Elsa V. DEVERCELLI, as Administratrix of the Estate of Rudolfo Devercelli, Appellee. |
| Court | Court of Appeals of Columbia District |
J. Roy Thompson, Jr., Washington, D. C., with whom John Jude O'Donnell, Washington, D. C., was on the brief, for appellant.
Before GALLAGHER, NEBEKER and YEAGLEY, Associate Judges.
This is an appeal from a judgment for $165,000 based on a verdict awarding appellee's decedent $25,000 compensatory damages and $50,000 punitive damages for false imprisonment; $40,000 compensatory and $40,000 punitive damages for assault and/or battery; and $10,000 for insulting words. The action arose out of the apprehension, detention, and interrogation of appellee's decedent1 by the employees of appellant for suspected "willful concealment" of merchandise.
Appellant primarily raises three contentions on appeal: (1) that the trial court should have ruled as a matter of law that appellant's employees had probable cause to detain and hold appellee's decedent for questioning; (2) that the civil release signed by him is a bar to this action; and (3) that the excessive award of damages was the result of passion and prejudice.
After a careful review of the record and a study of the authorities cited by both parties, we hold that the court should have directed a verdict for the appellant on count three as to statutory slander, we affirm the judgment as to liability on the first two counts, but remand to the trial court on the issue of damages.
On July 15, 1968, at approximately 6:30 p.m. the appellee's decedent (hereinafter Devercelli) and his wife went to appellant's Parkington store in Arlington, Virginia for a "Private After Hours Sale" pursuant to an invitation received by them. Devercelli's wife entered the store, but he decided to wait until most of the crowd had entered inasmuch as he had great difficulty in walking. He feared that if he fell down, in the push of the crowd, he would have difficulty arising due to physical disabilities, including partial paralysis, resulting from his onetime dependence upon an artificial kidney and more recently a kidney transplant. Upon entering the store, Devercelli was handed a shopping bag by one of two employees of the appellant who were greeting customers at the door. It was his understanding the bag was given to him "for shopping". Devercelli had bloodshot eyes; his arms were black and blue and showed visible scars of needle marks; he walked with a faltering gait; appeared nervous and moved in erratic patterns.2 He proceeded to the men's department where he stopped at a table containing bargain ties. He selected four ties and placed them over his shoulder. He then went to the far end of the table, a distance of a few feet, where shirts were on display. From this point on there is some conflict in the testimony between Devercelli's version and appellant's. We therefore set forth the ensuing facts in the light most favorable to appellee.
Devercelli began to look at the shirts when according to his testimony a female employee of the appellant, later identified as a store detective, approached and began staring at his arms. Devercelli then told this employee about his medical condition and his use of the kidney (dialysis) machine which caused the marks on his arms. The employee, who denied such an encounter at trial, withdrew but continued to stare at his arms from behind another counter. Devercelli selected four shirts, placed them under his arm and walked to the end of the table where cuff links were on display. He began to select cuff links but the boxes had rounded tops causing one of them to fall. When he tried to catch it everything fell to the floor. As he picked up these items, he placed them all into the shopping bag furnished him by the store. He then selected more cuff links, while standing there, by comparing those on the counter with those in the bag and putting those he liked best in the bag. Having spent about ten minutes at the cuff link counter, he next turned to move to the belt counter at which point he was apprehended by two male store detectives3 who asked no questions at the time but took him to the detention room on a lower level of the store.4
On the other hand, a store detective testified that Devercelli had not remained within the relatively small area of the men's department where shirts, ties, cuff links and belts were displayed, but that he had proceeded into the sporting goods department with his merchandise in hand and returned to the men's department with it in the shopping bag. He also testified that Devercelli was in front of the escalator when he was apprehended, having departed the cuff link counter.
At the detention room he was subjected to a search which revealed $3 in cash and a valid shopping plate. Devercelli was advised of his rights, and the crime of "willful concealment" was explained to him. He was interrogated at length including questions about his use of drugs and alcohol. Devercelli requested that he be allowed to call his employer and/or his wife, which request was denied.5
Before the questioning got under way, one of the detectives paced the floor slapping his gun. Later the detectives asked Devercelli to sign a civil release form, telling him more than once that he could not leave until he signed it and if he refused he would go to jail. This he refused to do but, after about one and one-half hours elapsed, he reluctantly signed the release and was allowed to go free upon a cautioning that he should not mention the incident to anyone. He requested an apology from the detectives but none was forthcoming.
Counsel for both parties stipulated that on July 26, 1968, Devercelli wrote a letter to the appellant company concerning the foregoing incident requesting a letter of apology. He also asked the company to repudiate the action, conduct and statements of its employees and to inform him that it does not ratify the conduct of its employees on July 16, 1968. Although a company representative contacted appellee's lawyer, a letter was not forthcoming. This action followed.6
Appellant's first contention on appeal is that the trial court erred in not holding as a matter of law that the store detective had probable cause to believe appellee was committing or had committed the crime of willful concealment and therefore had the right under the Virginia statute to arrest, detain, and interrogate appellee.
The governing substantive law of this case is that of the lex loci, the State of Virginia, where the alleged tortious acts transpired.7 The Virginia statutes in effect at the time differed from the usual shoplifting laws. They provided: merchandise.
Concealment of merchandise on premises of store a misdemeanor. Whoever, without authority, wilfully conceals the goods or merchandise of any store, while still upon the premises of such store, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished as provided by law.
Exemption from civil liability in connection with arrest of suspected person. A merchant, agent or employee of the merchant, who causes the arrest of any person pursuant to the provisions of § 18.1-126, shall not be held civilly liable for unlawful detention, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so arrested, whether such arrest takes place on the premises of the merchant, or after close pursuit from such premises by such merchant, his agent or employee, provided that, in causing the arrest of such person, the merchant, agent or employee of the merchant, had at the time of such arrest probable cause to believe that the person committed wilful concealment of goods or
Under the Virginia Code, if the merchant or his agent has probable cause to believe that one is willfully concealing goods or merchandise, and thereupon detains him, for interrogation and possible search, then a reasonable detention and/or interrogation of such person will not serve as the basis for a civil action.8
Probable cause is a mixed question of law and fact and where the facts that might establish probable cause are in dispute, their existence is for the determination of the jury.9 Based upon this record, and considering the evidence in the light most favorable to appellee, we cannot hold that the trial court should have ruled as a matter of law that there was probable cause to apprehend Devercelli. The testimony at trial was conflicting as to appellee's movements within the store both before and after the merchandise was placed in the bag and particularly whether all of the items were put in the bag while he was stooped down picking them up after having dropped them on the floor or whether, as he testified, and contrary to the dissent, some items were placed in the bag as he was standing by the cuff link counter comparing and selecting other cuff links. (Tr. at 24, 66 and 67.) There also was conflict as to whether or not he had left the men's department and was about to enter an escalator when he was apprehended, or whether, as he testified, he had remained in the immediate area where he selected his merchandise. Presented with differing accounts of the activities of the appellee, we think it clear the trial court was confronted with a situation where reasonable minds might differ.10 In view of the conflicts in the evidence as to whether probable cause existed, it was manifestly for the jury to weigh the evidence and determine the credibility of the witnesses.11 Thus we hold the court was correct in submitting the question of probable cause to the jury which resolved this issue in favor of the plaintiff.
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