Wilson v. City of Walla Walla, 914--III

• Decision Date: 25 November 1974
• Docket Number: No. 914--III,914--III
• Citation: 528 P.2d 1006,12 Wn.App. 152
• Parties: Woodrow WILSON, Respondent, v. The CITY OF WALLA WALLA, Washington, Defendant, and Payless Drug Stores, Inc., a corporation, Appellant.
• Court: Washington Court of Appeals

Page 152

12 Wn.App. 152

528 P.2d 1006

Woodrow WILSON, Respondent, v. The CITY OF WALLA WALLA, Washington, Defendant and Payless Drug Stores, Inc., a corporation, Appellant.

No. 914--III.

Court of Appeals of Washington, Division 3.

Nov. 25, 1974.

James B. Mitchell, Reese & Mitchell, Walla Walla, for appellant.

Madison R. Jones, Walla Walla, for respondent.

MUNSON, Judge.

Woodrow Wilson commenced an action against Payless Drug Store, Inc., hereafter referred to as Payless, claiming damages for false arrest.

Mr. Wilson was detained in the parking lot of Payless by store detectives who inquired whether payment had been made for certain items he had just placed on the rear seat of his car. Mr. Wilson refused to discuss the matter or to disclose whether he possessed a receipt for the items. After a police officer arrived, Mr. Wilson ultimately disclosed his receipt; he was then allowed to enter his car and leave. The total time of detention was approximately 45 minutes. A jury returned a verdict for Mr. Wilson in the sum of $5,000. Payless appeals.

Payless first contends the court erred in refusing to give its proposed instruction No. 1, ¹ I.e., that Mr. Wilson was under a duty to submit to the inquiries of the store detectives, to mitigate damages. Payless further contends that the proximate cause of compensable injury to Mr. Wilson was his refusal to submit to these inquiries. We disagree.

A party injury by conduct that is either intentional or reckless is entitled to compensatory damages and is under no duty to mitigate such damages. Desimone v. Mutual Materials Co., 23 Wash.2d 876, 162 P.2d 808 (1945); Champa v. Washington Compressed Gas Co., 146 Wash. 190 262 P. 228 (1972); Theis v. Federal Finance Co., 4 Wash.App. 146, 480 P.2d 244 (1971). False arrest is an intentional tort; the court properly refused to submit proposed instruction No. 1. W. Prosser, Torts, § 11 (4th ed. 1971).

Instruction No. 9 sets forth a statutory defense permitting limited detention by a mercantile establishment; however, the element of mitigation is not mentioned in the statute. RCW 4.24.220. ²

It is not error to refuse a requested instruction when a party's theory of the case may be adequately argued within the given instructions. Lucas v. Velikanje, 2 Wash.App. 888, 471 P.2d 103 (1970). The theories urged by Payless could be adequately argued within instruction No. 3. ³

Secondly, Payless contends the $5,000 verdict was excessive and unmistakably the result of passion or prejudice on the part of the jury. We are constrained to disagree.

Instruction No. 14 provided in part: 'The law has not furnished us with any fixed standards by which to measure pain, suffering, anguish of mind, sense of shame, humiliation and loss of social reputation.' Payless has not assigned error to this instruction. In considering the entirety of the evidence, we are unable to conclude that the verdict was Unmistakably the result of passion or prejudice. We may have 'gasped' at the verdict, but we are not 'shocked' by it. Neff v. United Pacific Ins. Co., 58 Wash.2d 618, 364 P.2d 515 (1961); Carlos v. Cain, 4 Wash.App. 475, 481 P.2d 945 (1971); Hanson v. Newberry Renton Corp., 3 Wash.App. 546, 475 P.2d 893 (1970).

Judgment affirmed.

GREEN, C.J., and McINTURFF, J., concur.

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