Schmidt v. Richman Gordman, Inc.

• Decision Date: 21 February 1974
• Docket Number: No. 39065,39065
• Citation: 215 N.W.2d 105,191 Neb. 345
• Parties: Jayne E. SCHMIDT, Appellee, v. RICHMAN GORDMAN, INC., a corporation and Gladys Horan, an Individual, Appellants. Kathleen A. CLIFTON, Appellee, v. RICHMAN, GORDMAN, INC., a corporation, and Gladys Horan, an Individual, Appellants.
• Court: Nebraska Supreme Court

Page 105

215 N.W.2d 105

191 Neb. 345

Jayne E. SCHMIDT, Appellee, v. RICHMAN GORDMAN, INC., a corporation and Gladys Horan, an Individual, Appellants.

Kathleen A. CLIFTON, Appellee, v. RICHMAN, GORDMAN, INC., a corporation, and Gladys Horan, an Individual, Appellants.

No. 39065.

Supreme Court of Nebraska.

Feb. 21, 1974.

Syllabus by the Court

1. False imprisonment consists in the unlawful restraint against his will of an individual's personal liberty. Any intentional conduct that results in the placing of a person in a position where he cannot exercise his will in going where he may lawfully go, may constitute false imprisonment.

2. In a malicious prosecution case, the necessary elements for plaintiff to establish are: (1) The commencement or prosecution of the proceeding against him (2) its legal causation by the present defendant; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage, conforming to legal standards, resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action.

3. A verdict may be set aside as excessive only when it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, or mistake, or that it is clear that the jury disregarded the evidence or controlling rules of law.

4. In an action for damages, where the law furnishes no legal rule for measuring them, the amount rests largely in the sound discretion of the jury, and the courts are reluctant to interfere with a verdict rendered by the jury.

5. The Supreme Court may, at its option, consider a plain error not specified in appellant's brief.

Walsh, Walentine & Miles, Thomas J. Walsh, Michael R. O'Malley, Omaha, for appellants.

McGrath, North, Dwyer, O'Leary & Martin, P.C., Arthur D. O'Leary, Steven J. Lustgarten, Omaha, for appellee.

Heard before WHITE, C. J., BOSLAUGH, and McCOWN, JJ., and TESAR and HAMILTON, District Judges.

TESAR, District Judge.

These are two tort actions brought by plaintiffs, Schmidt and Clifton, who are sisters, and, as the same facts are involved in both cases, the actions were consolidated for trial.

These actions arose out of an incident which occurred in the store of defendant Richman Gordman, Inc., at 120th and West Center Road in Omaha, Nebraska, on November 24, 1971. The plaintiffs came to the store on said date and shopped. The plaintiffs were stopped as they left the store by the defendant Gladys Horan, who is employed as a security guard by the defendant Richman Gordman, Inc. The plaintiffs were taken to the office in the store, held for approximately 45 minutes, and ultimately were taken to the Omaha police station by members of the Omaha police department, who were called by the defendants and who were advised that the plaintiffs were observed shoplifting in the store. Plaintiffs were held in jail for a period of 3 1/2 to 4 hours and they were 'mugged' and fingerprinted. They were charged with petit larceny and were released on bail at about 10 o'clock p.m. that evening. Subsequently the plaintiffs appeared in the municipal court of the City of Omaha to answer the charge of petit larceny, and the cases were dismissed.

Suit was instituted by both plaintiffs and each alleged the same three causes of action: The first, for slander; the second, for false arrest and imprisonment; and the third, for malicious prosecution. Trial was held and at the close of plaintiffs' evidence the trial court sustained defendants' motion in each case for a directed verdict on the cause of action for slander, but permitted the cases to proceed as to the other two causes of action. The jury found in favor of each plaintiff in the sum of $4,500 on their cause of action for false arrest and imprisonment, and in favor of each plaintiff in the sum of $10,500 on their cause of action for malicious prosecution.

Briefly, the evidence indicates as follows: Kathleen A. Clifton, age 21, and her sister, Jayne E. Schmidt, age 19, along with their two brothers and a sister, all of whom ranged in age from 5 to 10 years, went at about 4 p.m. into the defendants' store for the purpose of buying birthday presents for their father. They went to the men's department and picked out a shirt priced at $7.99 and then they selected a sweater-vest, and were going to buy a tie to go with the shirt and vest. They went to the tie department and plaintiff Clifton put the vest over the shirt, which shirt was on a hanger. They attempted to find a tie to match, but didn't find one, so they selected a pair of gloves. They shopped around the store for a while and then went to the cashier to check out their purchases. While the plaintiffs were making their selection of a tie they were observed by the defendant Gladys Horan, the security guard, who concluded that plaintiffs were attempting to shoplift the shirt. Miss Horan warned the checkout girl to give the plaintiffs the opportunity of paying for the shirt. When the plaintiffs went through the checkout stand the checkout girl, one Miss Ellefson, age 21, who had worked as a cashier for a period of about 1 month, asked if the vest and shirt on the hanger was a 'one-piece or two-piece' item. Both plaintiffs testified that they answered it was 'two pieces.' Miss Ellefson testified that she did not see more than one price tag on the items, but she couldn't remember whether or not she separated the items when they were brought to the counter. The plaintiffs both testified positively that the cashier separated the items and took the vest off the shirt from the hanger, and that the price tags were plainly visible on the items. The cashier then sacked the items and stapled the cash register receipt showing payment for the purchases onto the bag, which sealed or closed the bag, and the plaintiffs left the store. As soon as the plaintiffs left the checkout stand, Miss Ellefson signaled Miss Horan, with a prearranged signal, who then stopped the plaintiffs in the vestibule and escorted them to the office, where they were charged with attempting to procure a shirt without making payment therefor. When the plaintiffs left the checkout stand they did not count their change from the $20 bill that had been tendered for payment of the articles because of some commotion caused by one of their younger brothers.

Miss Ellefson, the checkout cashier, although she knew that the shirt and vest were separately priced items, at no time made any attempt to eliminate any possible misunderstanding which may have existed as to whether the items were a one piece or two-piece item. Richman Gordman had a price code system to prevent pilfering two one-piece items as if they were a set. We feel it is important to recite Miss Ellefson's cross-examination verbatim: 'Q. Would you tell me, if you know, how Richman-Gordman, codes the price tag? A. If I remember right, for a two-piece item they have 'two-piece' on the tag, and I think it is a green tag. Q. So they are coded? A. Yes. * * * Q. Do you know whether these items were coded? A. No, I don't. I don't know. * * * Q. One of the girls, when you asked, said it was two pieces? A. Yes. A. And most of the time the items were coded to indicate whether or not it was a set or two pieces or two items or two outfits? A. Yes, they are.'

When the plaintiffs were accosted by the defendant Horan, in the vestibule, she showed them her badge and credentials and asked that they accompany her to the office. Miss Horan was about 20 years of age with no training in security work except her employment for the defendant store for a period of slightly over 1 year. In the office Miss Horan asked permission to examine their purchases enclosed in the bag. They answered in the affirmative. What transpired then is reflected in the testimony of plaintiff Jayne Schmidt: 'Q. When you got to the office, Jayne, what happened? A. Well, the girl asked us if she could look in our sack, and we said yes, and she told us that we had not paid for the shirt, and Kathy told her we had just gone through the checkout stand and paid for everything. She showed us the register ticket and said it wasn't rung up. And we said that wasn't our fault that it wasn't rung up, that we planned to pay for it and we would gladly pay for it. And she said no, we were planning to get out without paying for the shirt. And then she called some guy, and some guy came up, and he told us that we were trying to get away without paying for the shirt, and we tried to explain it to him, and he wouldn't listen to us at all.'

The facts in evidence conclusively show that Miss Horan apprehended and detained these plaintiffs at the defendant store. She testified that she personally made the determination not to let the plaintiffs leave the Richman Gordman Store. Plaintiffs testified that they felt they could not leave the room where they were confined, and in this connection, Horan testified that if the plaintiffs had started to run she would have chased them. Officer Pensyl testified he received the call, 'to pick up a shoplifter' at the store. The call was made by Miss Horan. Officer Pensyl testified numerous times that when he arrived at the store the plaintiffs were in custody of the defendants and were under arrest. He made out his report based on information furnished by said security personnel. Thereafter he took the security officer's report and as 'conveying officer' took the plaintiffs to the city jail for confinement.

Defendants contend that the trial court erred in defining what constitutes an 'arrest' in its instruction No. 11. This assignment of error was cited and argued in their brief. The court gave an almost verbatim definition of 'arrest' as defined in 5 Am.Jur.2d, Arrest, § 1, p. 695, which properly defines what constitutes an arrest, and said instruction, given by a very able trial judge, was correct.

Defendants contend that one who merely...