Szymanski v. Great Atlantic & Pacific Tea Co.
| Decision Date | 03 February 1947 |
| Citation | 79 Ohio App. 407,74 N.E.2d 205 |
| Court | Ohio Court of Appeals |
| Parties | SZYMANSKI v. GREAT ATLANTIC & PACIFIC TEA CO. |
Syllabus by the Court.
1. Only a duly commissioned peace officer can arrest one found committing a misdemeanor.
2. Due to the personal character of the services performed by a store detective whose duty it is to apprehend shoplifters the store owner cannot delegate such duty to an independent contractor and thereby be relieved of liability to his customers for illegal acts of such detective.
Fraser, Shumaker, Kendrick & Winn and Robert B. Gosline, all of Toledo, for appellant.
Merrit W. Green and James D. Nestroff, both of Toledo, for appellee.
Plaintiff Helen Szymanski, sued the defendant, The Great Atlantic & Pacific Tea Company, for false imprisonment and malicious prosecution. The verdict and judgment were for plaintiff in the sum of $700, and defendant appealed on questions of law.
On April 28, 1945, the plaintiff, having made some purchases in one of defendant's food stores in Toledo, was accosted, on leaving, by a store detective, Marie Robinson, and was charged with stealing a can of mushrooms and a can of pimentos. She was taken to a lounge in the rear of the store and was questioned by Marie Robinson and the store manager. She denied the theft and asked to be permitted to go but was detained by them and by the manager alone while Marie Robinson called city police officers. Some time after they came, she was taken to the police station in a patrol wagon, booked and locked up. After about an hour, she deposited $25 as an appearance bond and was released. This happened on Saturday afternoon. The following Monday an affidavit, charging her with petit larceny, was filed by the employer of Marie Robinson, a Mr. McAllister who was doing business as the Central Bureau of Investigation, which had a contract with defendant to furnish detective service to its stores.
On the trial of the charge in the Municipal Court of Toledo, plaintiff was acquitted and discharged.
The evidence as to the alleged theft is in direct conflict. It was plaintiff's word that she bought and paid for the merchandise against Robinson's that she saw her take and secrete the articles. From the record it appears that both the judge of the Municipal Court who tried the criminal charge and the jury in this action, believed the plaintiff's narrative as to what happened. This court can not say that the finding of the jury on this question was against the weight of the evidence.
The question of false imprisonment depends upon the legality of the alleged authority of Marie Robinson as a special police officer. Section 51 of the Municipal Code of Toledo provides that the director of public safety may appoint private policemen, but Section 56 of that code limits that power to the appointment of such an officer for duty in one place 'unless said private policeman be the regularly detailed patrolman or officer in the actual service of a special police company incorporated under the laws of the state of Ohio.' It was upon this latter provision that the validity of Marie Robinson's appointment rested.
There were two fatal defects in her authority on the date in question:
1. As shown by the record, her only authority on that day was under an appointment as a special policeman for Continental Secret Service, whose employment she left in March 1945, to work for McAllister's Central Bureau of Investigation. She was not commissioned in that service until May 8, 1945.
2. There is no evidence that either Continental Secret Service or Central Bureau of Investigation was 'a special police company incorporated under the laws of the state of Ohio' as required by Section 56 of the Municipal Code of Toledo.
Only a commissioned peace officer can arrest one found committing a misdemeanor such as petit larceny. Hence, the detention of the plaintiff by Robinson was illegal and a violation of plaintiff's rights. In this, the defendant's store manager had a part and aided and abetted by detaining plaintiff in the company lounge while Robinson went to call the police. The manager also appeared as a witness for the prosecution in the trial of the criminal charge.
Disregarding these acts of participation by the defendant's agent, the store manager, defendant urges that the arrest and the prosecution were the work of Central Bureau of Investigation, an independent contractor, and that defendant was not liable for what the bureau's agents, Robinson and McAllister, may have done.
No Ohio decisions directly in point on this type of a case are cited. Outside Ohio, the one most nearly similar cited by defendant is Niles v. Marshall Field & Co., 218 Ill.App. 142. In that matter, the evidence did not tend in any particular to connect any agent of the store with the alleged wrongful acts of the store detective who was employed by the detective agency which had a contract with the defendant.
A case more nearly like the one at bar was later twice before that same court and each time it...
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