Roberts v. Coleman

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; BRAND
Citation365 P.2d 79,228 Or. 286
PartiesJudy ROBERTS, a minor by Venita Roberts, her guardian ad litem, Appellant, v. Lee COLEMAN, as an individual, and as the Manager and Agent and Employee of Payless Drug Store, of Salem, an Oregon Corporation, William Kremer, as an individual and as an Agent and Employee of Payless Drug Store of Salem, an Oregon Corporation and Payless Drug Store of Salem, an Oregon Corporation, Respondents.
Decision Date20 September 1961

Page 79

365 P.2d 79
228 Or. 286
Judy ROBERTS, a minor by Venita Roberts, her guardian ad
litem, Appellant,
Lee COLEMAN, as an individual, and as the Manager and Agent
and Employee of Payless Drug Store, of Salem, an Oregon
Corporation, William Kremer, as an individual and as an
Agent and Employee of Payless Drug Store of Salem, an Oregon
Corporation and Payless Drug Store of Salem, an Oregon
Corporation, Respondents.
Supreme Court of Oregon, Department 2.
Argued and Submitted Sept. 12, 1961.
Decided Sept. 20, 1961.

Page 80

[228 Or. 287] Alfred J. Laue, Salem, argued the cause for appellant. On the brief were Williams & Skopil, Salem.

C. Parker Gies, Salem, argued the cause for respondents. With him on the brief were Lewelling & Gies, Salem.


BRAND, Justice.

This is an action for false imprisonment brought by the plaintiff Judy Roberts, a minor, by her guardian ad litem, against the defendant Payless Drug Store, a corporation, and the defendants Coleman and Kremer, individually, and as agents of the corporate defendant.

The answer contained a general denial.

The cause went to trial before a jury, and a verdict was returned in favor of the plaintiff and against all of the defendants, in the sum of $2,000. The defendants had each moved for a directed verdict, which motions had been denied. Thereafter they each moved for judgment notwithstanding the verdict, which motions were allowed, and the court entered judgment for said defendants. The plaintiff also assigns as [228 Or. 288] error an order of the trial court which withdrew from the consideration of the jury the plaintiff's claim for punitive damages.

Obviously the first question for determination on this appeal is whether the motion for directed verdict 'should have been granted,' thus authorizing the trial court to render judgment n. o. v. for the defendants. We now consider that issue. The defendant Payless Drug Store, hereafter called 'Payless', operates a retail store in the city of Salem. The defendant Coleman is the store manager and the defendant Kremer, doing business as 'International Business Audit', is a private investigator who is employed by Payless to check the honesty and efficiency of its employees. The plaintiff, Judy Roberts, was employed by Payless as a clerk from January 25, 1959 until October 25 of the same year, at which time she 'quit.' The incidents on which plaintiff bases her

Page 81

claim of false imprisonment occurred, according to her testimony, on September 1.

In determining the propriety of the judgment n. o. v. for the defendants, the evidence must be considered in the light most favorable to the plaintiff. United Finance Co. v. Kliks, 210 Or. 288, 310 P.2d 1103; Clark v. Strain et al., 212 Or. 357, 319 P.2d 940. Our question is whether there was any substantial evidence of a false imprisonment.

On the day in question, the defendant Coleman came to the sales floor and told the plaintiff that he wanted to see her in his office. The plaintiff voluntarily accompanied him to his office where she was introduced to the defendant Kremer. The ensuing interview lasted from 10:30 a. m. until 1:30 p. m., and related to her conduct as a clerk. Kremer called attention to a tape recorder which was on the desk [228 Or. 289] and asked her if she objected to its use. Plaintiff answered that she didn't mind it running and that 'it doesn't bother me at all.' The conversation was recorded from its inception until about 1:30, when the plaintiff wrote and signed a letter addressed to the defendant Coleman, wherein she confessed that she had repeatedly stolen from the firm. The tape which records the conversation was marked 'Exhibit B'.

Counsel for defendant, Mr. Gies, said to the court, 'I understand the tape has been received in evidence by stipulation of counsel as defendants' Exhibit B.' Mr. Williams, counsel for the plaintiff, said 'We have no objection.' The tape was received in evidence. The tape was put on the machine and played in the presence of plaintiff and of the jury. The tape, together with a typed transcript of its contents, is before this court. It plainly shows the following statement by Kremer, 'There is one thing, Judy, I want you to understand, is this, that office door there is wide open and you are free to leave at any time you wish. (Door opened and closed.)'

In her cross examination, which preceded the playing of the tape to the jury, plaintiff was asked the following question: 'Didn't one or the other tell you you were free to go at any time you wanted to?' Answer: 'No, Sir, they did not.' Immediately after the tape had been run before the jury the plaintiff was recalled by the defense as an adverse witness. Question: 'You heard the tape. Did you hear on there where they told you at the start the door was open and you could leave?' Answer: 'I heard that on there but I can plainly state that I don't remember them telling me that.'

[228 Or. 290] We now quote from the brief of the plaintiff-appellant, as follows:

'* * * At the outset it must be pointed out that within the first few minutes of the interview the self-styled 'old professional' (Record Tr. 78) told the plaintiff that the door was open and that she was free to leave (Record Tr. 6) * * *.'

The above testimony is highly significant on the question of the alleged false imprisonment. By way of summary, we first have a categorical denial by plaintiff that she was told she could leave. We next have positive testimony of the defendants Coleman and Kremer that plaintiff was told she might leave at any time. Next follows the playing of the tape before the jury and within the plaintiff's hearing and her admission that she heard the statement but didn't remember that they had told her. Lastly, we have the admission of counsel. Under the circumstances we think her original negative statement is completely overcome. Without regard to the state of her memory, it conclusively appears and is admitted that she was notified that she might leave at any time.

We next consider whether there is any substantial evidence that the office door was locked during the interview. Plaintiff testified, 'As far as I know it was locked * * *.' Again, we quote: 'Q. Did you at all times while you were there feel that the door was locked? A. Yes, I did.' (Italics ours.)

Page 82

Plaintiff had never been in the office before, never testified that anyone locked the door or that she examined the door to ascertain if it was locked. Persons entered and left the office from time to time but there is no evidence that anyone locked or unlocked the door. 'As far as I know' does not disclose knowledge. The evidence is that the door will not lock [228 Or. 291] from the inside. We quote from the undisputed testimony of witness Holmes:

'Q. Are you familiar with the door and the lock on the door? A. I am.

'Q. Does it have a lock on the door? A. It has a lock, yes.

'Q. Will that door lock from the inside? A. No.

'Q. Will it lock from the outside? A. Yes.

'Q. When someone is inside they just turn the knob and can freely go outside? A. Yes, they can.

'Q. That is all.

'Cross Examination by Mr. Williams:

'Q. Can you lock it from the inside so you can't get out? A. No.

'Q. You cannot lock it from the inside? A. You lock it from the inside when you walk out and can't get back in.

'Q. But it has a flip lock on the inside? A. Yes, but it doesn't lock the inside.

'Q. But you can set the lock from the inside? A. Yes.

'Q. That is all.

'Redirect Examination by Mr. Gies:

'Q. When you turn the knob after setting the lock, the knob opens the door? A. That is correct.

'Q. So it has no way to lock it so three persons couldn't open it from the inside? A. No.'

[228 Or. 292] The inescapable conclusion is that the plaintiff could not have been locked in.

We next quote other items of testimony on which plaintiff relies as evidence of false imprisonment: We quote questions by Mr. Gies:

'Q. You consented to staying there?

* * *

* * *

'A. No not actually. I didn't. I was there, yes, but I felt I had to stay, that I couldn't leave. Of course, they didn't say to sit right there and stay.

'Q. You didn't even ask if you could go, did you? A. No, but they kept insisting I had taken the money and not to tell anybody and I was going to stay until they got the truth.

'Q. Did they ever use the words 'until they got the truth'? A. No. In a sense-like they were.'

Again, the plaintiff said, 'I didn't ask if I could leave but I was still under the impression I couldn't.'

Plaintiff expressly admitted that the defendants did not use any physical force or threaten her with physical force and that they did not at any time by words or acts indicate or suggest that she would not be free to go if she wanted to. The undisputed evidence is that the defendants never told the plaintiff...

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    ...a claim for false imprisonment, a plaintiff must show the defendant caused an unlawful confinement of plaintiff. See Roberts v. Coleman, 228 Or. 286, 292-93, 365 P.2d 79 (1961); Walker v. City of Portland, 71 Or.App. 693, 697, 693 P.2d 1349 (1985). The threshold element of confinement may b......
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