Plaintiff filed this action for damages, charging defendant with false imprisonment in her first cause of action, and malicious prosecution in the second. The jury returned a verdict for plaintiff on both, plus punitive damages in the cause of action for malicious prosecution. The trial court entered a judgment n.o.v. on both causes of action and alternatively ordered new trials. Plaintiff appeals.
The evidence received was as follows. Plaintiff testified that she went to defendant's store in the Lloyd Center in Portland to purchase some sunglasses. She walked to the first of two counters displaying sunglasses and selected two pair. Plaintiff testified that she had lots of time and was "browsing" around, looking at counters of beads, handbags and scarves. She was holding the sunglasses in her hand and carrying her purse over her arm as she walked down the aisle toward another counter displaying more sunglasses and a counter of greeting cards.
Plaintiff was arrested for shoplifting while she was standing near the greeting card display. Plaintiff testified:
The store detective who arrested plaintiff had finished her training in security about one month before the incident. Her testimony contradicted plaintiff's in several particulars. She testified that plaintiff acted suspiciously and kept looking around while trying on the glasses. She also stated that plaintiff removed the price stickers from the glasses and carried the glasses between her body and the purse. She estimated plaintiff had moved approximately 150 feet after she selected the glasses and that plaintiff could have paid for the
Plaintiff testified that it was possible that she removed the price tags but, to the best of her recollection, she did not.
After being arrested, plaintiff was taken to a downstairs room where she remained for 45 minutes to one hour. She was questioned for 15 or 20 minutes by the store detective, and later by another individual who started to look through her billfold. When plaintiff told him he had no right to do so, he ceased, but told plaintiff, "Well, we can search you completely if we wanted to." The store detective wrote out a confession and told plaintiff she had to sign it, but she refused. The police were called and subsequently defendant charged plaintiff with petty larceny under a city ordinance. Plaintiff was acquitted.
The jury returned a verdict for plaintiff, and the trial court granted the judgment n.o.v. on plaintiff's cause of action for false imprisonment on the grounds that defendant had reasonable cause for believing plaintiff had committed the crime of shoplifting and that the detention of plaintiff was also reasonable.
The rule is well established in this state that the question of whether "reasonable cause" existed for defendant to believe plaintiff had committed the crime of shoplifting is one of law for the court to decide. Delp v. Zapp's Drug & Variety Stores, 238 Or. 538, 542, 395 P.2d 137 (1964); Lukas v. J.C. Penney Co., 233 Or. 345, 361, 378 P.2d 717 (1963). However, when the facts are in dispute, the court submits the evidence to the jury with instructions as to what will amount to reasonable cause if proved. Lukas v. J.C. Penney Co., supra. The sole function of the jury is to determine the facts.
In the instant case the facts relating to the questions of reasonable cause to arrest were clearly in dispute, particularly as to whether plaintiff was "browsing" or acting suspiciously, whether plaintiff removed the price tags, and the manner in which plaintiff was carrying the glasses — in her hand or concealed between her purse and her body. The trial court allowed the jury to resolve the disputed facts and instructed them as to what facts constituted "reasonable cause." This was the appropriate procedure to follow in the instant case, and it was error for the court to set aside the verdict.
The question of whether plaintiff's detention was reasonable was also a question for the jury. Delp v. Zapp's Drug & Variety Stores, supra 238 Or. at 545, 395 P.2d 137; Lukas v. J.C. Penney Co., supra 233 Or. at 362, 378 P.2d 717. The jury was entitled to consider whether a detention of 45 minutes to an hour, the presence of four employees, the examination of plaintiff's billfold, references to a complete search of plaintiff, and the statement that plaintiff had to sign the confession constituted a reasonable detention under the circumstances. Therefore, it was also improper for the court to conclude that the detention was reasonable as a matter of law.
The judgment n.o.v. should not have been granted as to plaintiff's first cause of action.
The court also allowed defendant's alternative motion for a new trial on plaintiff's cause of action for false imprisonment. The order was based in part on the defendant's motion and in part on the court's own motion. We conclude that the court erred in both instances.
In the motion for a new trial, defendant contended, and the court agreed, that the court erred in failing to give an instruction that the store detective did have reasonable cause for believing that plaintiff had committed the crime of shoplifting. This was tantamount to directing a verdict on this feature and was properly refused, because, as we have stated previously,
The court also granted a new trial on defendant's motion for failure to give all of the following requested instruction:
The trial court also granted a new trial on its own motion on plaintiff's first cause of action, because of four instructions given the jury. While the trial court is authorized to grant a new trial on its own motion because of errors of law, although no objections were made or exceptions taken during the trial, the rule has an important qualification: "* * * [T]he error must have been prejudicial, and it must have prevented the party * * * from having his case fairly presented and tried, * * *." Timmins v. Hale, 122 Or. 24, 32, 256 P. 770, 773 (1927).
It is not necessary to set forth all the instructions verbatim. The court instructed the jury that the first cause of action involved the issues of whether defendant had reasonable cause to arrest plaintiff and whether the detention was reasonable; if probable cause to arrest existed, the jury still must decide if the detention was reasonable. These were proper instructions.
The court also instructed the jury that a merchant may detain a person suspected of a crime only for the purpose of investigating the crime and not for some other purpose.
The defendant argues that the instruction would allow the jury to infer that a merchant could not ask a suspected shoplifter his name and address or background information. We do not believe a jury could be so misled; such questions are normal and relate to the investigation of a crime.
The remaining instruction reads:
The defendant contends that the court should have instructed the jury to determine (1) as to what facts would, and what facts would not, amount to reasonable cause; (2) that it should determine what the facts and circumstances surrounding plaintiff's arrest were; and (3) that it should then determine whether the facts as found were such as to establish or not establish reasonable cause.
The defendant took no exception to the instruction. If it wanted an instruction as indicated above, it should have so requested.
We find that no error was committed by the court during trial of plaintiff's first cause of action, and it was therefore error for the court to enter a judgment n.o.v. or order a new trial in the alternative.
The trial court also granted a judgment n.o.v. on plaintiff's second cause of action for malicious prosecution on the grounds that the evidence failed to show that defendant acted without probable cause and with malice in prosecuting plaintiff for petty larceny under the Portland municipal ordinance.
As in plaintiff's cause of action for false imprisonment, the question of whether there existed probable cause for defendant to initiate a criminal action is one of law. Shoemaker v. Selnes et al., 220 Or. 573, 581, 349 P.2d 473, 87 A.L.R.2d 170 (1960); Kuhnhausen v. Stadelman, 174 Or. 290, 310-311, 148 P.2d 239, 149 P.2d 168 (1944). Where the facts under which the defendant acted are in dispute, it is the function of the jury, not the court, to resolve the dispute. Under such circumstances, the court is required to submit the disputed questions of fact to the jury with instruction that certain facts, if found to exist, do or do not constitute probable cause. Shoemaker v. Selnes, supra 220 Or. at 581, 349 P.2d 473.
As we have related above, a substantial conflict existed in the evidence, particularly as to whether plaintiff removed the price tags; whether the glasses were concealed by plaintiff; and whether plaintiff's actions were suspicious, or were merely the actions of one browsing in a store. This being the case, it was the duty of the trial court to submit the disputed questions of fact to the jury.
Regarding the question of malice, the test is whether the defendant's conduct was motivated by a purpose other than bringing plaintiff to justice. Prosser, Torts 848, § 119 (4th ed 1971); 1 Harper & James, The Law of Torts 320, § 4.6 (1956); 1 Restatement of Torts 423, § 668. See Stamper v. Raymond, 38 Or. 16, 22, 62 P. 20 (1900). Where there has been a criminal prosecution, instituted without probable cause the jury is permitted, but not required, to infer malice. Ira v. Columbia Food Co. et al., 226 Or. 566, 574, 360 P.2d 622, 86 A.L.R.2d 1378 (1961).
As mentioned above the facts surrounding the question of probable cause were in dispute. Therefore, the jury was entitled to consider whether the defendant's conduct was malicious.
The judgment n.o.v. on the second cause of action should not have been granted.
The trial court allowed a new trial for having given the following instruction:
Defendant argues that the words "carried away" in the above instruction could have led the jury to believe that it
In any event, it is difficult to see how plaintiff could have been prejudiced by the court giving the instruction on petty larceny, which was the crime charged against plaintiff by defendant. Immediately following this instruction, the trial court gave an instruction defining shoplifting and then gave defendant's requested instruction as follows:
The court told the jury that they must find for defendant if plaintiff "wilfully concealed or took possession of the glasses." In effect, the jury was told that defendant had probable cause to believe that plaintiff had committed the crime of petty larceny if plaintiff concealed the glasses. This dispels any notion that it was necessary for plaintiff to carry the glasses out of the store before defendant had probable cause.
The last question presented is whether the trial court erred in an instruction on punitive damages and in submitting punitive damages on plaintiff's second cause of action to the jury. We find no error in the instruction.
Dean Prosser states the following regarding the awarding of punitive damages in a malicious prosecution case:
We conclude that the case was fairly tried and without error in the instructions. The fact that the verdict was substantial is not a factor to be considered. The trial court erred in granting a judgment n.o.v. on both causes of action and granting new trials in the alternative.
Reversed with instructions to reinstate the original judgment.
"If you have found that plaintiff is entitled to general damages on the second cause of action, you shall then consider whether to award punitive damages on the second cause of action. Punitive damages are awarded to the plaintiff in addition to general damages, in order to discourage the defendant and others from engaging in wanton misconduct. Wanton misconduct is conduct amounting to a deliberate disregard of the rights of others, or of reckless indifference to such rights.
"In considering punitive damages, you first must determine whether the defendant was guilty of wanton misconduct, which was a cause of damage to the plaintiff. If you decide this issue against the defendant, you may award punitive damages, although you're not required to do so, since punitive damages are discretionary.
"If you decide to award punitive damages, you may properly consider the following items in fixing the amount: