Pokorny v. First Federal Sav. & Loan Ass'n of Largo

• Citation: 382 So.2d 678
• Decision Date: 03 April 1980
• Docket Number: No. 53023,53023
• Court: United States State Supreme Court of Florida
• Parties: Robert John POKORNY, Howard E. Shuping, and Mary Shuping, his wife, Plaintiffs, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF LARGO, Florida et al., Defendants.

Page 678

382 So.2d 678

Robert John POKORNY, Howard E. Shuping, and Mary Shuping, his wife, Plaintiffs, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF LARGO, Florida et al., Defendants.

No. 53023.

Supreme Court of Florida.

April 3, 1980.

John L. McFadyen of Lloyd & Henniger, St. Petersburg, for plaintiffs.

Thomas T. Steele of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for defendants.

ADKINS, Justice.

We have for consideration questions of law certified to us by the United States Court of Appeals, Fifth Circuit, in accordance with the provision of Rule 9.510, Florida Rules of Appellate Procedure, formerly Rule 4.61, Florida Appellate Rules (1962).

Pokorny, Shuping, and Shuping's wife, as plaintiffs, brought an action against the Federal Savings & Loan Association as defendant for causing an arrest. There was a verdict for the defense in the United States District Court and plaintiffs appealed. The United States Court of Appeals for the Fifth Circuit found that the case involved a question or proposition of the law of the state of Florida which was determinative of the cause and that there appeared to be no clear controlling precedents in the decisions of the appellate courts of the state of Florida. The statement of facts and the questions certified to us for consideration read as follows:

STATEMENT OF FACTS

Robert John Pokorny, a deaf mute who was visiting Florida with another deaf mute friend, Howard Shuping, and who had been driven to the offices of First Federal Savings & Loan Association of Largo, Florida, by Shuping, allegedly for the purpose of obtaining a coin bag, entered First Federal's offices on March 13, 1973, and handed the teller a note which stated: "Please give me zipper bag". Upon receiving the note, the teller informed Pokorny that the savings and loan company had no zipper bags but that a commercial bank across the street had such bags. Pokorny then leaned toward her and put his hand on his ear, and the teller repeated in a louder voice that First Federal did not carry zipper bags but that he could obtain them from the commercial bank across the street. Pokorny then pointed to the note again, "hard". She again told him that First Federal had no zipper bags. Then Pokorny pointed toward the cash drawer. She looked at him and opened the cash drawer and looked back at him. He then pointed at the cash drawer again, and she "knew" it was a robbery.

Having decided that a robbery was in progress, the teller closed the cash drawer and decided to get some sort of bag to put the money in to give to Pokorny. She attempted to explain to him, "about three times", that she had to leave her window to get a bag, but he "kept pointing at the note again". She then left the window to obtain a bag and, as she left the window, she noticed that she was being watched intently by him. While kneeling at the cabinet to obtain the bag, she informed a co-worker that she thought she was being robbed. She returned to the window with a bag which had a lock on it, and she attempted to explain the problem to him, she then pressed a silent alarm, secured another bag, and returned to the window.

Upon returning to the window, the teller placed the bag on the counter-top and Pokorny then pulled back the note and wrote on it, "I will bring $2,500.00 of coin". She then told him that First Federal would be happy to take any coins that he brought, but Pokorny continued to stand at the window, pointing at the note and turning from side to side in a nervous-like manner. The teller told Pokorny several times that she did not understand what he wanted and, after several minutes, she saw a customer approach and decided to take action to avert having a bystander involved in a possibly dangerous situation. She opened the drawer and reached for the money bag, but Pokorny took the bag and walked away at a rapid pace. No weapon was ever displayed to the teller, although she testified that Pokorny kept one hand in his pants pocket most of the time.

Immediately after the incident with the teller, the F.B.I. was telephoned by First Federal and informed that an attempted robbery had taken place. Pokorny and Shuping were subsequently apprehended by two F.B.I. agents. They were hand-cuffed and were then transported to Tampa where they were detained for approximately one hour and then released. No charges were filed against them by either state or federal authorities.

Pokorny, Shuping, and Shuping's wife sued First Federal and its liability insurer for causing the arrest of Pokorny and Shuping, alleging that the actions of First Federal's employees had been "negligent, reckless or intentional misconduct." First Federal denied the material allegations, and the case was tried before a jury. Over the plaintiffs' objection, the jury was instructed that First Federal was not to be found liable if its teller had, in the light of the facts available to her at the time of the incident, acted reasonably in believing Mr. Pokorny was attempting to rob First Federal. The jury returned a defense verdict, and the plaintiffs appealed.

QUESTIONS FOR THE SUPREME COURT OF FLORIDA

1. Did the actions of the employees of the defendant, First Federal Savings and

Loan Association of Largo, Florida, constitute "direct procurement" of an arrest under the teachings of Johnson v. Weiner, 19 So.2d 699 (Fla.1944), and its progeny?

2. Do the rules governing arrest and imprisonment by private citizens apply in this case?

3. If the rules governing arrest and imprisonment by private citizens are to apply in this case, is First Federal automatically liable in tort if, in fact, the plaintiffs did not commit a crime?

4. If the rules governing arrest and imprisonment by private citizens are to apply in this case, is First Federal automatically liable in tort if the plaintiffs demonstrate to the jury's satisfaction that no crime in fact occurred?

5. If in fact no crime had been committed, was the reasonableness of the conduct of the employees of First Federal material to a determination of liability? Put another way, is a private citizen, who in good faith and with probable cause believes a felony to have been committed by an identifiable person, nevertheless liable in tort for procuring the arrest of that person if a jury subsequently determines that no crime had been in fact committed?

Pokorny v. First Federal Savings & Loan Association of Largo, 563 F.2d 763, 765-66 (5th Cir. 1977).

Plaintiffs argue that the defendant proximately caused the false imprisonment and unlawful detention of the plaintiffs and that the defendant is therefore liable. Defendant argues that the mere fact that a person's communication to an officer may have caused the victims' arrest did not make him liable when he did not in fact request any detention.

Plaintiffs rely primarily upon the case of Johnson v. Weiner, 155 Fla. 169, 172, 19 So.2d 699, 701 (Fla.1944), where the Court said:

To be liable in an action for false imprisonment, one must have personally and actively participated therein, directly or by indirect procurement. All those who, by direct act or indirect procurement, personally participate in or proximately cause the false imprisonment and unlawful detention are liable therefor.

In Johnson v. Weiner, supra, the defendant had sworn out a warrant for the arrest of Jack Johnson and had subsequently erroneously pointed out the plaintiff as the perpetrator named in the warrant. The defendant in Johnson not only requested a warrant but also identified the plaintiff. This amounted to a "request" for an arrest and constituted more than merely supplying information to law enforcement officers or accusing another of a crime.

Washington County Kennel Club, Inc., v. Edge, 216 So.2d 512 (Fla. 1st DCA 1968), relied upon by plaintiffs, involved a situation where the plaintiffs were initially detained in the defendant's office against their will and were subsequently arrested by a deputy sheriff at the request and instigation of the defendant's agent. Applying the test of Johnson v. Weiner, supra, the Court held that the defendant was guilty of false imprisonment in two instances: By itself unlawfully detaining the plaintiffs and by requesting the unlawful arrest by the deputy sheriff. The action of the private citizen constituted far more than merely supplying information to law enforcement officers or accusing plaintiffs of a crime.

Plaintiff also cites Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.3d DCA 1977). In this case the Court held that a complaint stated a cause of action for false...