Safeway Stores, Inc. v. Gross

Decision Date07 February 1966
Docket NumberNo. 5-3676,5-3676
Citation240 Ark. 206,398 S.W.2d 669
PartiesSAFEWAY STORES, INC., Appellant, v. Karen GROSS (by her next friend), Appellee.
CourtArkansas Supreme Court

House, Holmes & Jewell, Little Rock, for appellant.

Richard W. Hobbs and William R. Mitchell, Hot Springs, for appellee.

McFADDIN, Justice.

The appellee recovered a damage judgment against appellant, but the judgment must be reversed because of an error in one of the instructions.

Appellee, Karen Gross, a high school girl, went with her mother to the Safeway Store in Hot Springs in December 1963. While her mother was in another department of the store, Karen selected a lipstick and some mascara to give to her mother for Christmas, and Karen went to the checkout counter to pay for the items. She testified that she had the lipstick in one hand and the mascara in the other, that both items were visible, and that she was in line to pay for them. The assistant store manager testified that Karen had slipped the lipstick in her pocket. At all events, according to Karen, the assistant store manager accosted her, accused her of secreting merchandise without intending to pay for it, and demanded that she accompany him and another employee to the office. She testified that he put his hand on her back and that she was marched between the two employees to the office, and that after a search revealed nothing except the visible lipstick and mascara, she was allowed to leave the office and rejoin her mother.

Through her father as next friend, Karen filed this action against Safeway Stores, seeking damages for (a) assault and battery, (b) slander, and (c) false imprisonment, all claimed to have occurred in the lipstick-mascara incident. Trial to a jury resulted in a verdict and judgment in favor of Karen, and on this appeal the appellant urges five points for reversal. We find no merit in any of the points except the one relating to Instruction No. 2; and it is on that point we base our reversal. We do not detail the testimony as to the assault and battery or as to the slander, because it was the giving of the Instruction No. 2 relating to false imprisonment that necessitates a reversal.

As aforesaid, Karen testified that the two articles (lipstick and mascara) were always visible, and that the assistant manager used language which, in effect, amounted to slander. Dean v. Black & White Stores, 186 Ark. 667, 55 S.W.2d 500. The jury accepted Karen's testimony, as it had a right to do. On the other hand, the employees of the store testified just as positively that Karen had concealed the lipstick in her pocket. On such testimony of concealment Safeway asked its Instruction 1 No. 2, the challenged portion of which, as offered, read: 'You are further instructed that the finding of such unpurchased goods or merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of wilful concealment.' .' (Emphasis supplied.) The Trial Court refused the instruction as requested, and then amended it and gave it so that the challenged portion read: 'You are further instructed that the finding of such unpurchased goods or merchandise wilfully concealed upon the person or among the belongings of such person shall be prima facie evidence of concealment.' (Emphasis supplied.) All the remainder of the instruction was given as requested.

The appellant specifically objected to the giving of the instruction as amended. 2 We hold that the Court committed error in giving the instruction as modified. This instruction was framed from a portion of Ark.Stat.Ann. § 41-3942 (Repl. 1964), which is a part of Section 4 of Act No. 50 of 1957. The statute says: '* * * and the finding of such unpurchased goods or merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of wilful concealment * * *.' We have quoted only that portion of the Act from which the appellant framed the germane portion of Instruction No. 2, and it will be observed that the appellant's requested instruction was a direct quote from the statute.

The Court could have refused the Instruction No. 2 entirely and made no attempt to modify it; and then an entirely different issue would have been presented here as to whether the appellant could take one sentence from a statute and omit the rest, the question then being whether the section given was susceptible of more than one construction. (Louisiana & A. R. Co. v. Woodson, 127 Ark. 323, 192 S.W. 174; and Missouri Pac. Transp. Co. v. Parker, 200 Ark. 620, 140 S.W.2d 997.) But the Court was not content to merely refuse the instruction: instead the Court undertook to amend the instruction and on its own motion gave the instruction as amended and therein the Court committed error.

The instruction as given said that if Karen wilfully concealed the articles, then that would be prima facie evidence of concealment. In effect, this wiped out the prima facie presumption because the jury would first have to find that she had wilfully concealed before any presumption of concealment could arise. The burden of...

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4 cases
  • Skinner v. R.J. Griffin & Co.
    • United States
    • Arkansas Supreme Court
    • June 14, 1993
    ...instruction given, it is presumed that the error was prejudicial until the opposite is established. See, e.g., Safeway Stores, Inc. v. Gross 240 Ark. 206, 398 S.W.2d 669 (1966). Even so, we are aware that in other cases involving the giving of erroneous instructions we have said that error ......
  • Back v. Duncan, 5--4822
    • United States
    • Arkansas Supreme Court
    • April 1, 1969
    ...the appellant cite our rule that an error is presumed to be prejudicial unless the contrary affirmatively appears. Safeway Stores v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966). In the nature of things, however, that rule does not apply when the trial judge has undertaken to correct an appar......
  • Ray v. Murphy, 84-198
    • United States
    • Arkansas Supreme Court
    • February 11, 1985
    ...error is shown in an instruction which was given it is presumed prejudicial until the opposite is established. Safeway Stores, Inc. v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966). In Gross we stated: "In the case at bar, because of the general verdict it cannot be shown that the error was ha......
  • Little Rock Elec. Contractors, Inc. v. Okonite Co., 87-292
    • United States
    • Arkansas Supreme Court
    • February 1, 1988
    ...from the jury's verdict which conclusion was reached, we cannot determine whether the error was harmless. Safeway Stores, Inc. v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966). Accordingly, we reverse and remand for a new trial without the comparative fault Reversed and Remanded. ...

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