Sears, Roebuck & Co. v. Devers

• Decision Date: 11 November 1981
• Docket Number: No. 52721,52721
• Citation: 405 So.2d 898
• Parties: SEARS, ROEBUCK & COMPANY v. Linda DEVERS.
• Court: Mississippi Supreme Court

Page 898

405 So.2d 898

SEARS, ROEBUCK & COMPANY v. Linda DEVERS.

No. 52721.

Supreme Court of Mississippi.

Nov. 11, 1981.

White & Morse, George E. Morse, Gulfport, for appellant.

Gordon, Myers & Gordon, William H. Myers, Pascagoula, for appellee.

En Banc.

The appellant Sears, Roebuck & Company (Sears) appeals from a judgment of the Circuit Court of Jackson County affirming the judgment of the Jackson County Court against appellant in favor of the appellee, Linda Devers, for $4,300.00 after trial and jury verdict in that amount in the county court. We reverse and render judgment for appellant.

On December 11, 1977, Mrs. Devers was a customer in a Sears store in Jackson County. Her thirteen-year-old daughter was with her. The store was crowded. She was leaving the store after purchasing two blouses and a sweater, and as she approached an exit door, an automatic alarm went off. The exit doors then locked and would not open with people pushing to leave. The numerous customers became excited, began looking at each other, as she stated: "It scared me to death." She further testified two men and a woman came running toward her, one man and a woman grabbed her by the arm, and started telling her, "to come that way." The other man followed.

Mrs. Devers was escorted to the men's department, her daughter repeating: "Mama, what are they doing, what are they doing?" She did not know. When they got to the men's department, Sears' employees removed her purchases from her bag, and it was discovered a certain tag inside the sweater had not been removed from the sweater when the clerk sold it to Mrs. Devers. The tag, which was supposed to be removed when the merchandise was sold, activated the alarm.

The Sears' employees realized a mistake had been made, and apologized to Mrs. Devers. By that time she was very upset.

She drove home crying and informed her husband. She and her daughter were both crying when Mrs. Devers told him she "felt just like a common criminal." He understandably likewise became angry and upset.

She continued to be upset and testified she "cried for two or three days." Her husband noticed she was extremely nervous and had crying spells for several days following the incident. She never took any medication, however, and never consulted a physician. She did not lose any time from her job.

No suit was filed for civil assault. On July 12, 1979, Mrs. Devers filed a declaration in the Jackson County court alleging simple negligence on the part of Sears' employees from which she became mentally and emotionally upset, suffered emotional trauma, and was subjected to ridicule, embarrassment and humiliation due to the negligence of Sears. She demanded $10,000.00 damages.

Sears filed an answer of general denial. It did not plead the one year statute of limitations, Mississippi Code Annotated Section 15-1-35 (1972), for civil assault. At the trial, when the plaintiff rested, counsel for Sears moved for a directed verdict, arguing that while the declaration was premised on negligence, the proof was premised on assault, and barred by this statute.

Counsel for Mrs. Devers responded Your Honor, we pled negligence in this case saying that Sears was negligent in failing to remove this tag causing this lady to be embarrassed as a result of this negligence, and the emotional trauma.

Mrs. Devers' counsel further responded:

We have not pled assault and battery whatsoever. We have not pled anything that would fall under the one year statute. In fact, your Honor, our pleadings are complete in that this is strictly a negligence case. And, your Honor, there is no affirmative defense pled as to any statute of limitations running. (emphasis added)

The motion for a directed verdict was overruled. The instructions are somewhat in conflict. A peremptory instruction to find for the plaintiff was given, but instructions were also given authorizing the jury to find for the defendant.

The defendant was also given an instruction to the jury that it should not award any damages by way of punishment.

No cross appeal has been taken by the plaintiff because of the court's granting defendant an instruction that punitive damages should not be awarded.

Appellant's first assignment of error on this appeal states it was entitled to a peremptory instruction because the plaintiff was not entitled to recover any damages in this case based upon simple negligence. We need only address this first assignment.

The declaration in this cause was based upon simple negligence. By a liberal construction arguably it included an allegation which could be considered an assault.

When Sears failed to affirmatively plead the one year statute dealing with civil suits based upon an assault, of course it waived this defense. W. T. Raleigh Co. v. Fortenberry, 133 Miss. 467, 97 So. 722 (1923); Davis v. Davis, 210 Miss. 182, 49 So.2d 242 (1950); Davis v. Bar, 250 Miss. 54, 157 So.2d 505 (1963).

At the conclusion of the plaintiff's case, however, when the precise point was raised by Sears' counsel, the response of plaintiff's counsel that this was a simple negligence case removed any possible contention on appeal that this case is an assault case. When, during the course of a trial an attorney, with intent to influence the ruling or decision by the court on a point in issue, makes a solemn statement to the court committing his client to some legal position on the issue before the court, the client is bound thereby. Noxubee County v. Long, 141 Miss. 72, 106 So. 83 (1925). 7 Am.Jur.2d Attorneys-at-Law, Section 151; 7A C.J.S. Attorney and Client, Section 205(a).

Section 205(a) states in part:

An attorney employed for purposes of litigation has the general implied or apparent authority to enter into such stipulations or agreements, in connection with the conduct of litigation, as appear to be necessary or expedient for the advancement of his client's interests or to accomplishment of the purpose for which the attorney was employed. Such stipulations or agreements are binding on the client, without regard to the client's actual knowledge or consent.

Under circumstances as shown in this case, it is imperative that parties be bound by legal positions taken by them in court, and upon which opposing counsel and the trial court rely.

The only question before this Court on this appeal, therefore, is whether Mrs. Devers received compensable injuries in a suit based on simple negligence. An entirely different question would be presented if this case were based upon assault, Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941); or upon some "wanton or shamefully gross wrong," Saenger Theaters Corp. v. Herndon, 180 Miss. 791, 178 So. 86 (1938); or upon "... conduct exceeding all bounds usually tolerated by society, of a nature which is especially calculated to cause and does cause mental damage of a very serious kind." Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963); or acts done "... maliciously, intentionally, or with such gross negligence or recklessness to show an utter indifference to the consequence." Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971).

Appellee excluded assault as a cause of action in the trial of this cause. Likewise, in making no objection to the defendant Sears' instruction to the jury not to award punitive damages, and in not perfecting a cross-appeal citing such instruction as error, we can only consider this case on appeal as one of ordinary simple negligence. Therefore, the additional tools to construct legal liability set out in Saenger Theaters, Zale Jewelry and Adkins Protective Service have been removed by appellee.

As above stated Mrs. Devers suffered no physical injury, developed no sickness, and no medically cognizable mental injury. No physician ever attended her, and the incident occurred on Sunday, and she was not off from work as a result of her experience. Mrs. Devers was unnecessarily embarrassed and humiliated in public, and understandably quite upset for several days.

In Morgan v. Loyacomo, supra, under similar facts to this case this Court held the conduct of the store employees constituted an assault and battery rendering the store owner liable for damages, even though no physical injury was done to plaintiff.

In Saenger Theaters Corp. v. Herndon, supra, the abuse was purely verbal. The ticket taker at a theater refused to permit a fourteen-year-old girl who had purchased a ticket to enter, stating angrily in the presence of several persons she had been guilty of "indecent and lowdown conduct" in the show. This Court stated:

The court was, therefore, not in error in admitting evidence of mental pain and suffering, although unaccompanied by a distinct physical injury. Ordinarily, it is true, damages for mental pain and suffering not accompanied by a distinct physical injury are not allowable; but this rule does not include cases of wanton or shamefully gross wrong, such as the case now before us.... And for the same reason the court...