Signorino v. National Super Markets, Inc.

• Decision Date: 05 December 1989
• Docket Number: No. 55808,55808
• Citation: Signorino v. National Super Markets, Inc., 782 S.W.2d 100 (Mo. App. 1989)
• Parties: Domanic SIGNORINO, Plaintiff/Respondent/Cross-Appellant, v. NATIONAL SUPER MARKETS, INC., Brian Hiltibidal and Ken Fortner, Defendants/Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

Page 100

782 S.W.2d 100

Domanic SIGNORINO, Plaintiff/Respondent/Cross-Appellant, v.NATIONAL SUPER MARKETS, INC., Brian Hiltibidal and Ken Fortner, Defendants/Appellants/Cross-Respondents.

No. 55808.

Missouri Court of Appeals,

Eastern District,

Division Six.

Dec. 5, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 3, 1990.

Richard Schwartz, James E. Parrot, St. Louis, for defendants/appellants/cross-respondents.

Ann Hamilton, Hazelwood, for plaintiff/respondent/cross-appellant.

GRIMM, Presiding Judge.

In this jury-tried case, plaintiff received a $25,000 judgment against defendants for false arrest.In addition, he received a $50,000 judgment for punitive damages against National Super Markets, Inc.The trial court sustained National's Motion for Judgment Notwithstanding the Verdict as to punitive damages, but denied it otherwise.All parties appeal.We affirm.

Defendants raise two points.First, the trial court erred in failing to direct a verdict for defendants; because plaintiff"failed to prove that [defendants], without just cause or excuse, restrained or instigated the restraint of [plaintiff] against his will in that [defendants'] evidence established justification as a matter of law and [plaintiff] failed to prove that [defendants] instigated his restraint by the St. Louis Police Department."We disagree, because material facts were in dispute and the trial court correctly submitted the issues, including defendants' affirmative defense, to the jury.

Second, the trial court erred in failing to direct a verdict for defendants; because plaintiff did not produce substantial evidence of his injuries.We disagree, because there was sufficient evidence.

Plaintiff, in his cross-appeal, raises one point.He contends that the trial court erred in granting National's motion for j.n.o.v. on the issue of punitive damages; because there was sufficient evidence of actual malice.We disagree, because under the controlling cases, there was insufficient evidence to justify punitive damages.

I

The evidence in this case as to what occurred sharply conflicted.In determining whether plaintiff made a submissible case, however, "we must construe the evidence, together with all reasonable inferences drawn therefrom, in a light most favorable to the plaintiff."Day v. Wells Fargo Guard Serv. Co., 711 S.W.2d 503, 504(Mo. banc 1986).

Plaintiff went to a National super market to get several items, including Benzodent, a denture-pain cream.After selecting several grocery items, he went to the area where health items were displayed.

Although plaintiff's dentist had given him a sample tube of Benzodent, plaintiff was not familiar with the packaging of the product.After looking around for five or six minutes, plaintiff picked up a Benzodent box, opened it, took out the tube, and looked at it.Deciding that was what he wanted, he put the tube back in the box.Since the box was small, he did not put it in the shopping cart.Rather, he kept it in his hand.He never put either the box or tube in his pocket.

Plaintiff started towards the check-out area.He then decided to purchase a larger tube of Benzodent, so he returned to that display area.He put the small Benzodent box back on the shelf and selected a larger box.He kept the larger Benzodent box in his hand and went back towards the check-out area.Plaintiff then paid for the items.

After plaintiff went through the check-out area, a store employee, defendant Hiltibidal, approached him.Hiltibidal "held a badge in one hand and an empty carton in the other hand and said, 'Where is the tube that belongs in here? ' "Plaintiff did not know what kind of carton the guard had.Plaintiff asked, "Why you bother me?"¹The guard, according to plaintiff, said "I not bother you.You're going to give me the tube."Plaintiff then stated he had to get out of there, and showed Hiltibidal the receipt for his purchases.In addition, plaintiff opened the grocery bag to show Hiltibidal its contents.Finally, he pulled his front pockets inside out and showed that he had only keys and change in his pockets.

Plaintiff started to leave.At this time, a store detective grabbed him by the arm and pushed him back towards Hiltibidal.The detective told plaintiff"You can't go home."The store detective then took plaintiff to an office in the customer service area.There, in the presence of the manager, plaintiff said "nothing except let me go home."Five to fifteen minutes later, the police arrived in response to a store employee's call.A police sergeant asked plaintiff to tell him what happened, but the sergeant could not understand plaintiff.²

Several witnesses, including two police officers, testified that plaintiff shouted, screamed, flapped his arms around, and cursed.Plaintiff, however, testified that he never moved his arms around or threatened to hit anybody.Nor did he become abusive or use any profane language.

Plaintiff acknowledged that none of National's employees asked the police to arrest him.Rather, the police sergeant told another officer to "put handcuffs on him for peace disturbance," and the officer did.Plaintiff was taken to a police station, kept there for a couple of hours, given a summons for peace disturbance, and returned to the store parking lot to get his car.

II

Defendants' first point alleges trial court error in failing to direct a verdict for defendants; because plaintiff"failed to prove that [defendants], without just cause or excuse, restrained or instigated the restraint of [plaintiff] against his will in that [defendants'] evidence established justification as a matter of law and [plaintiff] failed to prove that [defendants] instigated his restraint by the St. Louis Police Department."

Defendants first contend their "actions were justified as a matter of law."As a general rule, the defense of probable cause is a question of fact for the jury.Vaughn v. Sears Roebuck and Co., 643 S.W.2d 30, 33(Mo.App.E.D.1982).If the material facts are in dispute, with one version establishing reasonable grounds and another version refuting it, then the jury must determine which set of facts existed.Redican v. K-Mart Corp., 734 S.W.2d 864, 868(Mo.App.W.D.1987).

Defendants base their contention on what they say is "undisputed" evidence.They point to their evidence that "an empty box of Benzodent was found hidden in the beer shelf" and defendant Hiltibidal held the box in his hand when he approached plaintiff.They point further to plaintiff's "unusual shopping behavior," and the fact that store employees watched plaintiff before detaining him in order to see if plaintiff paid for both tubes.

The store detective testified that he saw plaintiff with the box in his hand in the "warm beer section."Plaintiff, according to this detective, put his hands under some shelving.When he brought his hands back out, the box was gone, but his right hand had the tube.The detective saw plaintiff put the tube in his right front pocket.Later, Hiltibidal retrieved the Benzodent box from underneath the shelving and showed it to the store detective.

Contrary to defendants' assertion, this evidence was disputed.Plaintiff was asked if he threw away "any Benzodent box" in the store that afternoon.His response was "I no throw any box away, no."Also, he said, "I didn't put nothing on the shelves."In addition, plaintiff testified that he turned his front pants pockets inside out in front of Hiltibidal and the store detective.The pockets did not contain a tube of Benzodent.

Under the facts here, justification was not established as a matter of law.Rather, the affirmative defense presented a question of fact for the jury.

Defendants next contend that plaintiff failed to prove that defendants instigated plaintiff's arrest by the police.We need not address that contention.Plaintiff made a submissible case of false arrest based on the detention which occurred before his arrest.SeeVaughn, 643 S.W.2d at 33-34.

Defendants also contend that the detention of plaintiff"was made in a reasonable manner and for a reasonable period of time."Defendants primarily rely on Teel v. May Dept. Store Co., 348 Mo. 696, 155 S.W.2d 74(Mo.Div. 11941).They argue that plaintiff"produced no evidence that the detention was made in an unreasonable manner or for an unreasonable length of time."

Defendants offered, and the court gave, an affirmative defense instruction patterned after MAI 32.13[1978 Revision].That instruction directs the jury to find for defendants if the jury believes, among other things, that "plaintiff's restraint was made in a reasonable manner and for a reasonable length of time for the purpose of investigation."

Contrary to defendants' contention, plaintiff did not have the burden to prove that "the detention was made in an unreasonable manner or for an unreasonable length of time."Rather, defendants had the burden of proof on this affirmative defense.Stewart v. K-Mart Corp., 747 S.W.2d 205, 208(Mo.App.E.D.1988).

Plaintiff's evidence was that he showed store employees (1) the receipt for his purchases, (2) the contents of his grocery bag, and (3) his front pockets, which did not contain the tube of Benzodent.Plaintiff's evidence also was that following these showings, his arm was grabbed by a store detective, he was pushed, and he was told he could not go home.He was then taken to an office in the store.Since the material facts were in dispute, the evidence supporting the affirmative defense presented a question of fact for the jury.Vaughn, 643 S.W.2d at 33-34.Defendants' first point is denied.

III

Defendants' second point is that the trial court erred in failing to direct a verdict because plaintiff"failed to prove that he was damaged in that [plaintiff] did not produce substantial evidence that he suffered from medically significant mental...