Nash v. Sears, Roebuck & Co.

• Decision Date: 31 July 1968
• Docket Number: No. 1,Docket No. 1183,1
• Citation: 12 Mich.App. 553,163 N.W.2d 471
• Parties: Mary Lee NASH and Dan Nash, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND CO., a New York corporation, Heidt's Protective Service, Inc., a Michigan corporation, and Art Keolian, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 471

163 N.W.2d 471

12 Mich.App. 553

Mary Lee NASH and Dan Nash, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND CO., a New York corporation, Heidt's Protective Service, Inc., a Michigan corporation and Art Keolian, Defendants-Appellants.

Docket No. 1183.

Court of Appeals of Michigan, Division No. 1.

July 31, 1968.

Rehearing Denied Nov. 6, 1968.

Released for Publication Jan. 9, 1969.

Alexander, Buchanan & Conklin, Detroit, for Heidt's.

Bodman, Longley, Bogle, Armstrong & Dahlin, Detroit, for Sears, Roebuck.

Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for plaintiffs-appellees.

Before LESINSKI, C.J., and BURNS and LEVIN, JJ.

LESINSKI, Chief Judge.

Defendant Sears, Roebuck & Company appeals from a judgment totaling.$17,250 on a verdict entered below for plaintiffs, Mary Lee Nash and Dan Nash. Sears seeks a reversal and remand for new trial, or in the alternative, a setting aside of the judgment of 'no cause' against it on its cross-claim against codefendant Heidt's Protective Service, Inc., for entry of judgment against the latter, or a new trial on its cross-claim. The relief sought by defendant Heidt's Protective Service, Inc., is a reversal of the judgment below in favor of the plaintiff and an affirmance of the judgment of 'no cause' in its favor on the above-mentioned cross-claim. ¹

The plaintiff brought action against Sears, Heidt's and Arthur Keolian for false arrest, false imprisonment, and assault and battery committed by Keolian who was an employee of Heidt's with whom Sears had contracted to furnish guard service at its store located at 8000 Gratiot at Van Dyke in Detroit. An amendment to plaintiff's complaint added a further count of negligence against the two corporate defendants based on the employment of Keolian ² as a guard.

The incident which gave rise to plaintiff's cause of action took place on September 4, 1962, when Keolian, in guard uniform, apprehended the plaintiff, a departing Sears' customer, on the sidewalk adjacent to the store. He noticed she had loose merchandise and demanded to see receipts. Plaintiff was able to produce only one. Keolian tried to get her back to the store; however, she refused to go and struck Keolian with her umbrella and started to walk away. Keolian then shoved her to the ground, straddled her body and pinned her arms above her head. They remained in this position until a crowd gathered and the police arrived. A subsequent examination of plaintiff's possessions by the police revealed that the shoplifting charge was without foundation.

According to Keolian's testimony, he was summoned to the lingerie department in response to a bell call in the store. A saleslady told him that a woman had taken some merchandise, stuffed it into a shopping bag, and left the store. Keolian stated that when he was unable to find the suspected party on the basis of the sparse description of her attire given to him initially, he returned to get his informant, and that the saleslady accompanied him to the door and pointed the plaintiff out to him. ³

The plaintiff alleged and proved physical injuries and expenses, as well as accompanying humiliation, pain and suffering resulting therefrom, none of which are at issue here.

The testimony showed that Sears and Heidt's, through their agents, had entered into an oral contract in 1957 whereby Heidt's was to furnish guards on a parttime basis to the Sears store at Gratiot and Van Dyke. Sears paid Heidt's for this service at the rate of $2 per hour per guard supplied. Heidt paid the guards.

The first issue raised by Sears alleged that the court erred in directing a verdict against Sears on the counts of assault and battery and false arrest. The court determined that as a matter of law, there was an assault and battery and false arrest for which Sears was liable as a matter of general policy, because there is a nondelegable duty owed by any such business to the public. Sears does Not contend that there was not, as a matter of law, an assault and battery and a false arrest, ⁴ but rather argues that it was not liable therefor.

Sears' argument is that Heidt's was an independent contractor, for whose torts Sears, as employer, should not be held liable. On this point Sears cites two venerable Michigan cases, De Forrest v. Wright (1852), 2 Mich. 368, and Riedel v. Moran, Fitzsimons Company, Limited (1894), 103 Mich. 262, 61 N.W. 509. Both cases are factually distinguishable, in that in both De Forrest and Riedel the acts for which the plaintiff sought to hold the defendant liable sounded in negligence. The instant case involves, as to the counts here under discussion, intentional torts. Therefore, we are not required to consider the authorities cited as controlling.

Sears' principal argument on this issue, however, is that the exception to the employer's nonliability is found where the work delegated is intrinsically or inherently dangerous. Although this exception is well settled in Michigan law, it is not the exclusive exception as Sears would imply. We refer to the very title of section 35 in 13 Callaghan's Michigan Civil Jurisprudence under the topic Independent Contractors, which is 'Exceptions to the rule of nonliability,' and to the variety of cases cited in sections 35 through 42 of 13 Michigan Civil Jurisprudence, supra. The case on which Sears places heavy reliance in its argument is Cary v. Thomas (1956), 345 Mich. 616, 76 N.W.2d 817. The Cary case dealt with liability for the negligent act of the independent contractor in an allegedly inherently dangerous activity; since the trial court here did not direct a verdict on the theory of an 'inherently dangerous' activity, but rather on the basis of public policy, and since the activity giving rise to liability here was not negligence but rather the infliction of injury through the commission of intentional tort, the law in Cary is inapplicable.

Most important, however, is the line of authority cited by the plaintiff from the annotation in 92 A.L.R.2d 15, 'Principal's liability for false arrest or imprisonment caused by agent or servant' wherein it is stated at p. 61:

'Generally the defendant has been held liable for a false arrest caused by such an agent (i.e., one under contract to defendant) where the contractual services to be performed by the agency consisted of the protection of the defendant's property from theft or embezzlement by its customers or employees. In some of these cases, it has been expressly held or stated that defendant could not escape liability on the ground that the false arrest had been caused by an employee of a mere independent contractor.'

In the absence of Michigan case law on the question of whether or not this fact situation presents a nondelegable duty, we consider the authority cited from out-of-state and find it valid.

The responsibility owed the public by storekeepers to keep invitees safe from attacks such as was suffered by the plaintiff here cannot be delegated by an invitor so as to free the invitor from liability when its contractor, through its agent, commits a wrongful act. The language in one of the cases in the above-cited annotation is particularly apt. These words, from Adams v. F. W. Woolworth Co. (1932), 144 Misc. 27, 257 N.Y.S. 776, 782, have been frequently cited:

'This is not the case of a contractor doing his work negligently. Where negligence is the sole basis of the liability, the doctrine of respondeat superior has been held inapplicable to independent contracts. Negligence does not enter into the tort of false arrest. * * * Immunity from vicarious liability would permit any store keeper to subject his customers to the hazards of an irresponsible detective agency without peril to himself. * * * The opportunities for gross injustice afforded by such a doctrine are too manifest to permit its incorporation into the jurisprudence of our state, without compelling reason.'

Thus the first issue raised by Sears must be determined in the plaintiff's favor.

Next we discuss the issue raised by defendant Heidt's relative to the court's determination that the intentional torts were proved as a matter of law. Heidt's alleges that there was conflicting evidence as to the false arrest, and that therefore a jury question was presented. It notes that under the shoplifting statute, ⁵ any larceny is a felony. On this point, Heidt's is correct. Heidt's then states that a private citizen may arrest without a warrant where the person arrested has in fact committed a felony even though it was not committed in his presence. ⁶ Again, Heidt's is correct. However, Heidt's employs these rules of law to reach a conclusion which is fallacious. Heidt's says that since there was unobjected-to hearsay evidence to the effect that the saleslady said some merchandise was taken, this evidence of a felony should have gone to the jury, because if believed by the jury, there would have been no false arrest. Heidt's misinterprets the admission of the evidence here discussed. The evidence was not admitted as hearsay--to prove the truth of the matter asserted--but rather to prove the fact of an assertion--that the saleslady said something relevant to the cause at issue. There was no testimony that a theft had been committed--no evidence therefore of a felony, and the trial court correctly found that there was a false arrest--an arrest without legal authority. There was, according to the undisputed evidence, an assault and battery. The trial court committed no error in so finding and charging. Heidt's assignment of error as to this issue is without merit.

Sears additionally contends that the court erred in refusing to direct a verdict for Sears on its cross-claim. Sears says, in effect: We had an oral contract with Heidt's, one of the provisions of which was that no guards furnished by the latter were to make apprehensions unless they witnessed the transaction themselves; the existence of this provision is not in dispute; and this contractual...