*1 STORES, INC. WAL-MART v. Katherine YARBROUGH 84-98
Supreme Court Arkansas Opinion delivered December [Rehearing February denied 1985.*] *Hickman, Hays, Newbern, JJ., grant rehearing. *2 Hendren, L. for appellant.
J. ¿r Morris, Morris, William T. Taylor, Vandergriff by: for appellant. 19, On March Special Chief Justice. Bell,
Kathleen Caudle, 1980, Assistant Manager at the behest of Mr. Archie Store, arrested for shop- Appellee of the Wal-Mart in the The was tried Court Municipal lifting. for She then and the charge. Fort Smith was acquitted arrest, for false false imprisonment, initiated an action emo- and intentional infliction malicious prosecution tional distress. case, the Appellant
At the conclusion of the Appellee’s on of punitive for the issue summary judgment moved false verdicts as to the issues of and for directed damages distress and and intentional infliction emotional arrest by made These Appellant. denied the other motions after both sides had motions were renewed by Appellant denied the trial court. rested and were compensatory awarded the Appellee $850 $20,000 punitive damages. The trial a new trial. moved for and for Judgment N.O.V. ensued, and this then court denied those motions appeal i in the court is pursuant 29(1)(o). Rule We Jurisdiction affirm. case, The facts viewed most favorably on Appellee, March in the Towson Avenue store in Fort
shopping Appellant’s Smith, Arkansas for the second time on that date. On this occasion she was in the store for the particular purpose food. While there she also purchasing dog a coffee picked up and a felt mug tip value cents pen, approximately fifty-nine was observed a store employee placing (59‡). on, in, her Assistant partially purse. Manager Caudle approached informed of actions. then Caudle commenced his personal observation At all times, Caudle was able see the which was contained pen, in a cardboard package. Caudle observed Appellee *3 minutes, approximately the time she was in including 10-20 the check-out line the paying other items. When store, was Appellee outside the she was approached pointed Caudle. He to the still visible and if asked she had it. paid for told him no she Appellee had forgotten, but Caudle, would return and so. do and another male Appellee reentered employee the store. Appellee started in the direction of the check-out counter and was informed by Caudle had to go to the back. Appellee was accom- panied into the store office by and Caudle two other store employees.
Appellee testified at this point that she felt she was detained of because the behavior of Caudle and the presence the of second employee. Caudle testified that the of purpose the second employee was to ensure that did not bolt Appellee and run and that she not have been allowed to leave the premises voluntarily. office,
Upon arrival the immediately Caudle phoned the police then informed she was under arrest. Appellee insisted to Caudle that she she had simply forgot the pen and was to willing for it. She pay also that requested he a friend of telephone a retail in the Appellee’s, merchant area, verify to her good character. stated that once the Caudle made, decision to was there or stop nothing was little could have said to that decision. He change it testified that he felt was a it good stop job and was of to listen to her guilt and make a decision as to story he He said effort to believe innocence. therefore made no the statement of had procedure an established for the
detention, interrogation, prosecution shoplifters. That procedure person required interrogated after and the interro- detention. observation personal could lead a gation to decision that the person simply forgot and should be released. The further pay manual states
the fact an not a paid item was for does not mean necessarily guilty shoplifting.
Even a as though job Caudle’s part manager assistant involved the he testified was apprehension shoplifters, not familiar with that it procedure and was utilized him. After the stop made he felt it was his responsibility proceed prosecution and it was the of the court duty determine other issues. the Municipal set before the matter was the day
On Smith, Filyaw, City Attorney, Fort Court Jim to her version of to listen counsel by Appellee’s asked Caudle with so and then approached did Filyaw incident. had ques- Filyaw dismiss the charge. recommendation steal and stated the intent to whether had as to tions The decision *4 be and open he to found truthful. was response was left to Caudle. Caudle’s proceed whether someone, regard- them they prosecute arrest they that once and found not was tried The Appellee less. guilty. the with is is initially presented The the court question the of prosecution and for the arrest cause issue probable is cause determining probable “The test for Appellee. but guilt, actual the accused’s upon one based objective information or credible existence of facts upon to believe ordinary caution induce Standard, Ark. v.Co. 283 Kroger to be guilty”. accused Hill, v. Tile Co. Brick and Malvern (1984); the facts Unless both 342 S.W.2d from those facts be deduced reasonable inferences and the to the jury. to is be submitted this issue undisputed, Standard, upon Kroger Co. v. The appellant, replying contends that the trial court erred as a in supra, matter law the issues and submitting of malicious false prosecution to the This is imprisonment jury. reliance not well founded. The Kroger Co. Court found the had the benefit Appellant of the Ann. shoplifting presumption, Stat. 41-2202(2) § (Repl. which 1977), arises with the knowing concealment items. unpurchased conjunction, Applying, pre- sumption, Rule 301 of the Arkansas Rules of Evidence of the testimony the Court held that there Appellee, not substantial evidence that Kroger failed to exercise the caution ordinary exhibited reasonably prudent Standard, merchant. Kroger Co. v. at supra pages 48-49. Assistant Manager Caudle testified he was able to see the at all times during period was observing the The shoplifting presumption did not arise there thus, the Appellee did not have to overcome the burden Rule 301. imposed by did Appellant probable have cause for the initial of the stop question However, held, to the respect it can pen. not be as a matter of law, that the thereafter Appellant exercised ordinary caution in these made, circumstances. Once the decision to stop automatic, the prosecution of Appellee was according to to, believe, There Appellant. was no effort made to listen the explanation proffered by because there she could have said nothing that could have changed the Appellant’s And prosecute. additionally, continued with the after the recom- prosecution mendation was made Attorney that the action City dismissed. facts, others,
While those as all were were undisputed, were to different inferences. sub- susceptible mission the issues of false and malicious imprisonment prosecution jury was these entirely appropriate Standard, Kroger Co. page circumstances. Ark. at 47. *5 The contends that the issue of Appellant punitive should not have j ury been submitted to the because the facts were It is that undisputed. not sufficient the facts be undisputed. Before a trial can decide as a matter of judge damages, punitive
law, the inferences reasonable issue of the undisputed. be In must also from those facts to be deduced this knowledge instance, had no testified that he Mr. Caudle by procedure shoplifting that the store and enacted the procedure belief that not used him. It was his was unpaid leaving for merchandise the store with belief, prosecuted he made no because of that should effort to listen to explanation of the detained individual. Attorney’s City recommendation fact of the And in the dismiss, Appellant the was to continue the decision of upon prosecution. no had effect This recommendation the Appellant’s because, the initial decision once prosecute made, it not reconsidered. was was are not from those facts inferences to be deduced
The law, not, undisputed. The trial court could as a matter damages. punitive decided the issue have Appellant also contends that The voluntarily and she to the store detained because returned negating apparently Appellant is asked to leave. The never testimony he had He testified that of Mr. Caudle. stopped Appellee guarded outside the from the time she was police led arrived. The the time the store until Appellant. guarded by employees of the office and into an boundaries within the confinement of complete. by Appellant Restatement of determined (2d) of Torts § the Law argues
Appellant instructions two of the also given by that the trial court erroneous and court were give requested Appellant’s instruction. erred its refusal to objections only general However, made general objection given by is the court. A instructions present appeal. Rule Arkansas on insufficient issue Procedure. Rules Civil Appellant specifically objected the trial court stating
giving be inferred “malice could an instruction by the court that certain It was understood from conduct.” objection on instruction to the court’s had reference (Court damages, punitive Instruc- derived from AMI
351 tion On now AMI 14). appeal, Appellant asserts that cases, no has intentional tort as this application such 2217 objection one. This cannot be made for the first time on 235, v. Ark. 458 Frisby, Blissett 249 S.W.2d 735 appeal. (1970).
Appellant next contends that the trial court erred in an sustaining objection made by counsel Appellee’s during closing argument. statement, During Appellant’s closing counsel stated had Caudle had alleged acted arbitrarily capriciously because he had not verified Appellee’s reputation with Bill Fields as requested by commented, Counsel then “I hope the will jury notice that no one has asked the City Attorney to check with Mr. Fields or other of plaintiff’s witnesses regarding reputation character of plaintiff.” counsel Appellee’s objected, stating this constituted a statement on facts not in evidence, that there was proof not whether the had request been made or not. The felt he responded was entitled evidence, to ‘‘mention lack of which could have presented easily been had chose do plaintiff so.” The court sustained the Appellee’s objection. closing argument not recorded and this exchange reconstructed counsel in chambers.
Control of counsel’s is within the wide argument range of discretion exercised trial The exercise of that judge. reversed, will not discretion in the absence of abuse. Lewis Pearson, 350, Louis, v. (1977); Ark. 661 St. 556 262 I.M. & Earle, S. Ry. Co. v. 103 Ark. S.W. 520
The exercise of the trial here court’s discretion cannot be held to have been abuse.
The appellant lastly contends that the evidence was insufficient the verdicts and the trial court erred support in for sub granting Judgment N.O.V. The standard stantial evidence is v. enunciated Love H.F. Construction Co., Inc., 831, 552 S.W.2d Employing 15 (1977). standard, law, we can not hold as a that ‘‘there is no matter of in favor probability reasonable version.” Appellee’s Caudle, have could testimony From the to the conse- inferred indifference conscious reasonably a verdict would sustain finding of his action. Such quences Inc., Ford v. Rebsamen damages. on punitive Satterfield Fields, (1972); Dalrymple S.W.2d 192 *7 substantial There was also S.W.2d 362 verdict as to compensatory evidence to he support will not be disturbed. and the of the jury Affirmed.
Hubbell, C.J., not participating. Hays, dissent. JJ.,
Hickman
I
due
Hays,
dissenting.
respect,
With
Justice,
Steele
a few
than the majority.
different view
wholly
take a
Just
we,decided
Standard,
Kroger Company
weeks
ago
on facts
(1984),
fundamentally indistin-
admittedly
from these. In
the customer
Kroger,
guishable
a
when
for ham
paying
about to leave
store without
Here, the
manager.
in the
the store
he
store
was stopped
for a
left the store without
admittedly
paying
customer
cases,
protestations
In
the customer’s
felt
both
tip pen.
cent
verdict,
ury’s
yet we
j
a
of intent were
supported by
lack
as matter of
cause was
a
held in
that
Kroger
probable
present
is
for
to decide on what
in
case
an issue
law but
footing.
to me even firmer
seems
is
to the fact it
may
be due
problem
Part of
item
steal an
anyone
insignificant
inconceivable
it,
experience
yet
to
for
pay
have the
money
when
that,
not
a satisfaction
deriving
do just
some
that
teaches
be,
muni-
may
However
understandable.
readily
of the doubt
the benefit
Yarbrough
Mrs.
gave
cipal judge
He
have been
may
criminal
intent.
her
and acquitted
entirely
have been
function. But may
in his udicial
j
right
of mind
actual state
Yarbrough’s
to Mrs.
respect
with
wrong
knows
Mrs.
Only
Yarbrough
of the incident.
at the time
is,
in
that the customer
the fact
point
she intended.
what
on
charge dependant
criminal
a
acquitted
this case was
burden,
a
beyond
i.e.
a much heavier
intent by
proving
doubt,
rise
ought
give
reasonable
to civil
liability
her
left
store
damages when
own admission she
without
for the merchandise
and it was at least
paying
concealed in her
in a container was
partially
purse.
it
pocket
stuck into a
of her
with
purse
part
exposed.
It
seems me two
here: the customer
things
wrong
was,
best,
is
as a
her
permitted
profit
result what
at
own
or, worst,
carelessness
at
her own
and no one can
dishonesty,
say
certainty which it was. She admitted deliberately
the item in
on
putting
purse.
the merchant
Secondly,
is left
an impossible
in such cases. No matter
position
how reasonable
his
is
belief
offense has been
against
committed
his
if the customer can con
property,
vince the fact finder in a criminal case that he or she had no
steal,
actual
intent
reasonable
or is able to cast
even
issue,
doubt on that
merchant
is then
of civil suit
peril
*8
for both
compensatory
punitive
Further
damages.
for all
majority
practical
means
a
purposes
merchant cannot have arrested someone
leaves his store
who
with merchandise without
it.
for
That
paying
simply ought
not to be
law
in
Kroger
we had the
forthrightness
to,
Standard,
Kroger v.
so. And
say
is not
case in which
only
court
law,
has held
cause to exist as a matter of
probable
a
Missouri
notwithstanding
verdict to the
See
contrary.
Railroad Co. v.
1134,
Quick, 199
Ark.
My disagreement with the punitive damages award is even more there pronounced. any Where is evidence of malice, wantoness, or of an or indifference to the conse- of such be quences magnitude that malice can inferred? I it submit is non-existent. The most that can be said of the of the incident is that manager’s handling negligent he was failing in to more familiar with the manual on dealing' thefts, with suspected but even if that could be said to be gross it negligence, still falls below the requirements law with respect punitive damages. Kroger Grocery and Waller, v. Co. Baking 361 (1945). S.W.2d observed the customer leave the store without Having for goods, the incident in a paying manager handled quietly thoroughly responsible fashion. He asked police. did not office, He he called the where come to the customers, her in her, or embarass front nor berate accuse duty simply be his without he believed to did what customer, unnecessary we and unless recrimination say meant to that she had believe her claim his refusal to can wantonly maliciously inspired, pay item was for the ought, good in punitive executed, award precisely what we conscience, This is to be remitted full. Kroger supra. Waller, identical facts in did on almost probable a cause to have . not have If a merchant does person item and leaves store who arrested secrets simply helpless paying it, then merchants for without protect subject shoplifters, property lest become from their every instance. false such suit for arrest determining probable cause? The test isWhat probable objective cause is an upon one based not the ac guilt, upon cused’s actual but the existence of facts or cred ible information that ordinary induce a guilty. Malvern Brick & the accused to be caution to believe If did Hill, it Tile Co. v. case, in this it doesn’t exist. not exist Hickman, in this dissent. joins J.,