Winn & Lovett Grocery Co. v. Archer

Decision Date24 November 1936
PartiesWINN & LOVETT GROCERY CO. et al. v. ARCHER et al.
CourtFlorida Supreme Court

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action by Mary Archer and another against the Winn & Lovett Grocery Company and others. Judgment for plaintiffs, and defendants bring error.

Affirmed in part and reversed for new trial in part.

COUNSEL

Kay, Ragland & Kurz, of Jacksonville, for plaintiffs in error.

Will O Murrell, of Jacksonville, for defendants in error.

OPINION

DAVIS Justice.

Mary Archer, joined by her husband, A. E. Archer, instituted this action at law against Winn & Lovett Grocery Company for assault and battery and false imprisonment. The jury returned a verdict in favor of the plaintiff and assessed her damages at $1,250. From the resultant judgment, defendant has taken writ of error to this court.

The case went to trial on the fourth count of plaintiff's second amended declaration and upon three second amended counts of said second amended declaration. Such several counts of the declaration upon which the trial was had are substantially as follows:

'That on or about the 27th day of May, A. D 1933, the defendant operated a store at or near Main and Eighth Streets in the City of Jacksonville, Duval County Florida, known as Lovett's Groceteria. That on said date plaintiff made a purchase of certain goods from the defendant in said store and that after plaintiff had made said purchase, the defendant, by and through its agent, servant and employee, who was then and there acting in the course of his employment, to-wit: A Checker Clerk who was then and there employed in and about the business of the defendant in the operation of a Groceteria located near Eighth and Main Streets in said City, and whose duty it was to protect the defendant's goods in this, to-wit: said duty was to receive, ascertain, check, count and add costs of articles of merchandise selected by patrons for payment and final removal from said store and allow such removal after payment thereof; wrongfully and unlawfully advanced upon the plaintiff in a threatening manner and then and there assaulted the plaintiff in this, to-wit: by then and there grabbing and holding the plaintiff and forcing the plaintiff to exhibit an article which the defendant, acting as aforesaid, falsely alleged that the plaintiff had taken from the defendant's said store without having paid therefor; to the damage of the plaintiff in the sum of twenty-five thousand dollars. * * *

'That on or about the 27th day of May, 1933, in the City of Jacksonville, Duval County, Florida, the defendant by and through its agent, servant and employee, who was then and there acting in the course of his employment, wrongfully and unlawfully assaulted and beat the plaintiff; to the damage of the plaintiff in the sum of Twenty-five Thousand Dollars.

'That at said time the defendant operated a store in the City of Jacksonville known as Winn & Lovett Grocery Company, located near Eighth and Main Streets in said City, and that on said date plaintiff had to make purchases in said store, and that said assault and battery was committed upon the plaintiff by one of the clerks in said store, whose duty it was to protect the defendant's goods in said store and to secure payment for goods taken therefrom by patrons, to compel plaintiff to surrender an article alleged to have been taken by her from the said store without paying the defendant therefor. * * *

'That on or about the 27th day of May, 1933, the defendant operated a store in the City of Jacksonville, Duval County, Florida, known as Winn & Lovett Grocery Company, located near Eighth and Main Streets in said City, and that on said date plaintiff made a purchase of certain goods from the defendant in the said store, and that after plaintiff had made said purchase, the defendant, by and through its agent, servant and employee, who was then and there acting in the course of his employment, namely, one of the defendant's clerks in said store whose duty it was to protect the defendant's goods in said store and to require and receive payment for any of said goods taken from said store, wrongfully and unlawfully advanced upon the plaintiff in a threatening manner and then and there assaulted the plaintiff and forced the plaintiff to exhibit an article, which the defendant, acting as aforesaid, falsely alleged that the plaintiff had taken from the defendant's said store without having paid therefor; to the damage of the plaintiff in the sum of Twenty-five Thousand Dollars. * * *

'That on or about the 27th day of May, 1933, the defendant was the operator of a store in the City of Jacksonville, Duval County, Florida, known as Winn & Lovett Grocery Company, located near Eighth and Main Streets in said City; that on said date the plaintiff entered said store and made certain purchases of defendant therein; that immediately after the plaintiff had left the defendant's said premises the defendant, by and through its agent, servant and employee, who was then and there acting in the course of his employment, namely, one of the defendant's clerks in said store whose duty it was to protect the defendant's goods in said store and to require and collect payment therefor of persons removing the same, forceably and wrongfully and unlawfully detained the plaintiff and wrongfully and unlawfully compelled the plaintiff to return to said store against her will until the plaintiff had satisfied the defendant, acting as aforesaid, that she had not taken from said store an article without having paid therefor, as was claimed of said clerk; to the damage of plaintiff in the sum of Twenty-five Thousand Dollars.'

It is contended that the several counts of the declaration, and each of them, were bad in substance and subject to the general demurrer interposed thereto which was overruled. As to the first three counts hereinbefore set forth, it is sufficient to say that the counts severally contain every essential allegation required to be set forth in the statutory form of pleading assault and battery and false imprisonment prescribed by section 4314(24), C.G.L., section 2648(24), R.G.S., to be used in actions for wrongs independent of contract when sued for in the courts of this state.

An assault is any intentional, unlawful offer of corporeal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented. 5 C.J. 615. The elaboration in plaintiff's declaration of the specific surrounding circumstances relied upon by him to sustain his suit against a corporation for assault and battery and false imprisonment, with the special object of showing on the face of the plaintiff's own pleading that the corporation's clerk charged with committing the wrong sued for was acting at the time thereof within the scope of his employment in so doing, is not only not to be condemned, but is commended as proper practice, and will not be held to render the declaration demurrable where there is contained in the declaration every of the statutory allegations required by the statutory form of pleading prescribed by section 4314(24), C. G.L., supra. Indeed the use of the statutory form with appropriate modifications to identify the time and place of the wrong complained of is entirely sufficient, even as against a defendant corporation.

The attack on the last-quoted count is on the ground it shows that the alleged wrong was committed outside the defendant's store, after the goods had passed out of defendant's custody and possession and that therefore defendant corporation was not liable unless it gave express authority to do the act or subsequently ratified the act.

The count complained of does not allege that the wrong was committed wholly outside the store. It alleges that after plaintiff was stopped outside the store by defendant's employee, she was unwillingly returned to the inside of the store where she was detained until defendant was satisfied that plaintiff had not taken the goods. The important thing to consider is not whether the alleged wrong was committed inside or outside the store, but whether the employee by his conduct as pleaded was attempting to protect the property of the company or to vindicate public justice.

There is a marked distinction between a false imprisonment or arrest caused by an agent for the purpose of protecting property, or recovering it back, and an arrest or imprisonment caused for the purpose of punishing an offender for an act already done. Ordinarily, there is no implied authority in a servant having the custody of property, to take such steps as he thinks fit to punish a person who he erroneously supposes has committed a crime against the property, and the trend of decision is against holding the master liable when the arrest has been made after the supposed crime has been committed, and not for the protection of his property or interests. In such cases the agent is presumed to have acted on his own account, for the vindication of justice, since his agency relates solely to the property, and the act of punishing the offender is not anything done with reference to it. Baltimore, C. & A. R. Co. v. Ennalls (1908) 108 Md. 75, 69 A. 638, 16 L.R.A. (N.S.) 1100; Daniel v. Atlantic Coast Line R. Co. (1904), 136 N.C. 517, 48 S.E. 816, 67 L.R. A. 455, 1 Ann.Cas. 718; Allen v. London & S.W. R. Co., [1870] L.R. 6, Q.B. (Eng.) 65, 40 L.J.Q.B.N.S. 55, 23 L.T.N.S. 612, 19 Week.Rep. 127, 11 Cox, C.C. 621; Abrahams v. Deekin, [1891] 1 Q.B. (Eng.) 516; 60 L.J.Q.B.N.S. 238, 63 L.T.N.S. 690, 39 Week.Rep. 183, 55 J.P. 212-C.A.

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    ...to the state. Later Florida cases base punitive damages on punishment rather than compensation. Thus, in Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 221 (1936) the court limited the statement in Smith v. Bagwell, which the court said authorized "vindictive damages" for a......
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