Stienbaugh v. Payless Drug Store, Inc.

• Citation: 401 P.2d 104,75 N.M. 118,1965 NMSC 33
• Decision Date: 29 March 1965
• Docket Number: No. 7502,7502
• Parties: Dorcis STIENBAUGH and Jean Roberts, Plaintiffs-Appellees, v. PAYLESS DRUG STORE, INC., a corporation, and Donald Rice, Defendants-Appellants.
• Court: Supreme Court of New Mexico

Page 104

401 P.2d 104

75 N.M. 118

Dorcis STIENBAUGH and Jean Roberts, Plaintiffs-Appellees, v. PAYLESS DRUG STORE, INC., a corporation, and Donald Rice Defendants-Appellants.

No. 7502.

Supreme Court of New Mexico.

March 29, 1965.

Rehearing Denied May 4, 1965.

Keleher & McLeod, Russell Moore, Michael L. Keleher, Albuquerque, for appellants.

Wycliffe V. Butler, Albuquerque, for appellees.

COMPTON, Justice.

This is an action for false imprisonment and defamation by slander growing out of the detention and search of the plaintiffs on the premises of the defendant, Payless Drug Store, Inc., by police officers acting upon information furnished by the store's assistant manager, also a defendant, that the plaintiffs were suspected of shoplifting. The cause was tried to the court which entered judgment in favor of the plaintiffs and awarded them damages of $1,000.00 each. From this judgment, the defendants appeal.

The appellants' contentions are (a) that the trial court erred in finding that the seizure, detention and search of the appellees was effected, authorized and directed by them, and in concluding as a matter of law that they committed the torts of false imprisonment and defamation by slander against the appellees, (b) that the court erred in refusing to find and conclude that they had reasonable cause to believe the appellees were unlawfully taking goods held for sale by Payless Drug Store, Inc., and (c) that the acts of the appellants were privileged under the provisions of the socalled 'shoplifting' statute, Secs. 40-45-24 to 40-45-27, inclusive, N.M.S.A., 1953 Comp., since repealed. The applicable sections read:

'40-45-26. An owner, operator, manager or employee of a place of business where goods are offered for sale may detain a person in a reasonable manner for a reasonable time, and in no event in excess of one (1) hour, for the purpose of attempting to recover goods believed to have been unlawfully taken by a person or for the purpose of delivering the person unto the custody of a peace officer or for both such purposes if the owner, operator, manager or employee has reasonable cause for believing that the person detained has unlawfully taken goods held for sale by the place of business.'

'40-45-27. A peace officer may arrest without a warrant a person whom he has reasonable ground to believe has committed the crime of shoplifting or larceny of goods held for sale if such arrest is made on the premises where the crime is believed to have been committed or if such arrest is made outside such premises by an officer who has pursued the person therefrom. A declaration made to a peace officer by the owner, operator, manager or employee of any place of business where goods are offered for sale shall constitute a reasonable ground for such arrest.'

The authority of the police officers in this case, under Sec. 40-45-27 above, to seize, detain and search the appellees as a result of declarations to them by the appellants that they suspected the appellees of shoplifting, is not questioned. The real basis of the action is that the appellants wrongfully instigated and directed the seizure, detention and search of the appellees, and by so doing became actual participants in the wrongful acts. It appears the case was tried on this theory.

The crucial question here is whether the appellants had reasonable cause for believing the appellees were unlawfully taking goods held for sale. As will be noted in the cases hereinafter cited, with or without the aid of legislation, reasonable cause is a pivotal question in this class of cases. See Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853. The issue of reasonable cause was raised by the pleadings and covered by the evidence. The trial court, however, in addition to refusing the appellants' requested finding that there was reasonable cause, made no specific finding of its own on this issue. In this situation, a failure to make a specific finding of fact is regarded as a finding against the party having the burden of establishing such fact. Hoskins v. Albuquerque Bus Company, 72 N.M. 217, 382 P.2d 700; Griego v. Hogan, 71 N.M. 280, 377 P.2d 953. We must assume, therefore, that the court in concluding that the appellants committed the tort of false imprisonment, found that they effected, authorized and directed the seizure, detention and search of the appellees without reasonable cause therefor.

We summarize the evidence relating to reasonable cause. An employee of the appellants, a clerk, testified that he saw the appellees together in the self-service store; that he saw one of them take a box of merchandise from a shelf, remove the sticker price tag therefrom and put the box in her purse; that, thereafter, when she opened her purse to get a cigarette, which he lit for her, he saw the box in her purse. It is undisputed that he reported these facts to the appellant manager who believed him. After receiving the employee's report and observing the demeanor of the appellees for a short time, the manager called the police. Upon their arrival, while the appellees were still shopping, the manager pointed them out to the police as being suspected of shoplifting and requested the police to detain and search them after they had checked out their purchases in order to ascertain whether they had taken anything from the store. The appellees, on the other hand, while admitting that one of them had removed the particular box of merchandise from the shelf, examined it and discussed it with the other appellee, testified that it was replaced on the shelf, and denied that either of them at any time had placed it in her purse. There is evidence that after the release of the appellees, the box in question, with the sticker price tag missing, was found some 15 feet away from its accustomed place.

The denial of the appellees placed the evidence as to probable or reasonable cause in conflict. Had there been no denial, or if the merchandise had been found in a purse, no conflict would have existed and the court would have been warranted in finding, as a matter of law, that probable or reasonable cause existed for their detention.

A similar case is Bettolo v. Safeway Stores, 11 Cal.App.2d 430, 54 P.2d 24, wherein a customer was seen by two employees to put a package of candy in his pocket while shopping in the defendant's store. After paying for his purchases and leaving the store he was detained and searched by an employee. The candy was not in his possession but was later found on a counter in the store near where he had stood before leaving. The customer, however, did not deny that he had put the candy in his pocket. In the action for false imprisonment the court held that the undisputed evidence showed reasonable cause for the detention. In Rothstein v. Jackson's of Coral Gables, Inc., Fla.App.1961, 133 So.2d 331, relied upon by both parties here, a customer was observed placing an article of merchandise around her waist and leaving the rack where it belonged. She was detained in the store by an employee and the article was in her possession. In an action by her for false imprisonment the court concluded as a matter of law there was probable cause for believing the goods were being unlawfully taken.

Whether the question of reasonable cause for detention is one of law for the court, as in Collyer v. S. H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20 and Bettolo v. Safeway Stores, supra, or whether it is only a question of law when the facts are undisputed, as in Kraft v. Montgomery Ward & Co., 220 Or. 230, 315 P.2d 558, 348 P.2d 239, 92 A.L.R.2d 1; Parrish v. Herron, 240 Mo.App. 1156, 225 S.W.2d 391, and Kroger Grocery & Baking Co. v. Waller, 208 Ark. 1063, 189 S.W.2d 361, the reasoning generally is that applied in the case of Lukas v. J. C. Penney Company, 233 Or. 345, 378 P.2d 717. In the latter case it is set forth that if the question of reasonable or probable cause for the detention of a customer is undisputed, it is one of law for the court, but if the evidence is conflicting, it is a mixed question of law and fact, citing 22 Am.Jur., False Imprisonment, Sec. 118, p. 429 and 35 C.J.S. False Imprisonment Sec. 59, p. 761. See also Gibson v. J. C. Penney Company, 165 Cal.App.2d 640, 331 P.2d 1057. In other words, it is for the trier of the facts to determine which of the conflicting stories is true. Applying these principles to the instant case, we can only conclude that the trial court, after weighing the evidence and determining the credibility of the witnesses, resolved the conflict in the testimony in favor of the appellees and found no reasonable cause for their detention. And viewing the evidence in its most favorable light, as we must, we find ample support for the court's finding. Jackson v. Goad, 73 N.M. 19, 385 P.2d 279; Fitzgerald v. Fitzgerald, 70 N.M. 11, 369 P.2d 398.

With respect to the judgment for defamation by slander, the court found that the defendants made defamatory statements in accusing the appellees of shoplifting, that the defamatory statements were communicated to third persons, and that they were false and injured the good character and reputation of the appellees. There is ample support for this finding. Contrary to the contention of the appellants that the statements made by them were in aid of law enforcement and privileged, the evidence is undisputed that the appellants' clerk stated directly to the appellees while they were detained in the store and in the presence of both employees and patrons of the store that he had seen one of them put the box of merchandise in her purse. Being susceptible of but one meaning, and that an opprobrious and defamatory one, the statement was actionable per se. Dillard v. Shattuck, 36 N.M. 202, 11 P.2d 543. But assuming there had existed a privilege in pursuing the investigation, whether the statement by the employee was made in the exercise of that privilege, was a question for the trier of the facts. White v....