Food Fair Stores, Inc. v. Lascola

Powers, J., delivered the opinion of the Court. This case was initiated by a suit filed in the Superior Court of Baltimore City by Barbara Lascóla and Wayne A. Lascóla, her husband, against Food Fair Stores, Inc. and Betty McClain, later referred to in the record as Betty McClain Williams. The declaration was originally filed in four counts. The first alleged that Mrs. Lascóla was falsely imprisoned by the defendants, and the second alleged that she was slandered by the defendants.

A demurrer to the third count as duplicitous was sustained, and it was eliminated from the case. In count four, Mr. Lascóla adopted his wife’s allegations and claimed damages against the defendants because their wrongful conduct caused him to incur medical expenses for the care of his wife. The Facts Before The Trial Court The events upon which the suit was based occurred on 13 January 1972. The suit was filed on 26 June 1972 and after both sides engaged in various discovery proceedings, the case was tried before a jury and Judge James A. Perrott in the Superior Court of Baltimore City, beginning on 23 January 1975 and concluding with the entry of judgments ¹⁵⁵ nisi on 30 January 1975.

From final judgments thereafter entered in favor of both plaintiffs against both defendants, this appeal was taken. The facts as Mr. and Mrs. Lascóla relate them in their brief are these: “On January 13, 1972, Plaintiff Barbara Lascóla was in a Food Fair Store and after selecting groceries totalling $71.05, went through the cash register line where cashier Ann Darr, Food Fair employee, tabulated her groceries. Plaintiff (paid for the groceries by check and she) went to the manager’s office, cashed a personal check in the amount needed to pay for the bill and returned to the register to pay for the groceries. Cashier Ann Darr received Plaintiff’s cash, helped Plaintiff bag her groceries, then began to wait on the next customer in line.

The evidence was conflicting about whether the cashier gave Plaintiff her receipt or cash register tape. Plaintiff said she was given the tape and Defendants said she was not. Neither the Plaintiff nor the Defendants could produce the tape. “The Plaintiff then left the store with two carts full of groceries and went outside to the other end of the apron in front of the store to get her automobile, leaving the carts on the apron. She had to go to the other end of the store because this is where she had parked her car as it was very crowded that day. “As the Plaintiff came back and opened the trunk of her car and started to put her groceries away, she heard someone yell, ‘Miss, Miss,’ real loud, ‘you have got to come back to the store.

You didn’t pay for your groceries.’ These words although in conflict with what Defendants say happened, were spoken by the Defendant, Betty Williams. The Plaintiff tried to tell Defendant Betty Williams that she had paid for the groceries, however, was ¹⁵⁶ told, T can’t help that. The girl still has the tape. She said you didn’t pay.’ At this time, people kept coming around and they were stopping.

After the groceries were placed in the trunk of Plaintiff’s automobile, the Defendant, Betty Williams took ahold of Plaintiff’s arm and told her she had to go back into the store. The Plaintiff at this time was scared and getting sick in the stomach. The Plaintiff was taken back into the store by Betty Williams, Defendant, and brought to the cashier where she had been checked out even though she did not want to go back into the store. At this time everything seemed to stop in the store and all the people were standing around.

Finally Betty Williams came out to the Plaintiff and told her she was free to go, that the total had checked out correct. “While this incident was in the process of happening and Defendant, Betty Williams was outside of the store with the Plaintiff, the store manager, Earlbeck had immediately realized that a mistake had been made by Ann Darr and could see this on the tape at her register. “The Plaintiff and Defendant, Betty Williams had known each other for a number of years prior to this incident, having been neighbors, both living on Yarnall Road. The Defendant Betty Williams knew that Plaintiff had a problem with her nerves.” What conflicts there were in the evidence are shown by the following recitals of the evidence which appear in the brief of appellants: “Cashier Ann Darr presumably received plaintiff’s cash (but unbeknownst to her at the time), put it in the cash register drawer, helped plaintiff bag her groceries, then began to wait on the next customer in line. * * * The next customer in line had a small order, but when it was totalled it amounted to a figure in excess of $100. Cashier Ann Darr was ¹⁵⁷ greatly surprised by this, and it was her immediate recollection and reaction that the plaintiff may not have given her the cash for the groceries. In addition, she said plaintiffs receipt or cash register tape was still on the register and not torn off the long roll of cash register tape, thus was part of the next customer’s order.

She spoke to defendant Betty Williams, a fellow employee who was a floor girl, a position several levels below the manager and told her she did not remember whether plaintiff had paid her for the groceries or not. “Plaintiff could be seen out the front window of the store where she was about to enter her car to bring it up to Food Fair’s front sidewalk apron where her groceries were in a cart inside the railing around the front of the store. Defendant Williams said, ‘Oh, I know her, that’s Barbara Lascóla, I will go out and ask her.’ Defendant Williams then went outside and approached plaintiff as she drove her car up to Food Fair’s apron and got out, defendant Williams saying to the plaintiff, ‘Barbara, Ann does not recall whether or not you paid her for your order . . . would you mind coming back into the store.’ Whereupon, plaintiff said, ‘Well, Betty, I thought that I paid her because I cashed a check and then went back to her’, and then said she wouldn’t mind coming back in, but first would have to put the groceries in the trunk of her car. There was no one else around at the time. The two women then proceeded to load the groceries into the trunk of plaintiff’s car, then walked back into the store together, defendant Williams pushing plaintiff’s empty cart.

About the time they got inside, the error had been found and verified and it was clear that plaintiff had in fact paid for the groceries, and that a mistake had been made by the cashier. Plaintiff was thanked for coming back into the store by not only defendant Williams, but by the cashier and the store manager and apologies were ¹⁵⁸ extended. Plaintiff acknowledged these apologies, understood the situation and did not appear to be in any way upset. After chatting a few minutes, with defendant Williams, plaintiff then left the store and went home.” Although the evidence conflicted in some respects, for the purpose of our decision in this case we need not be concerned with those conflicts.

We look at the evidence in the light most favorable to the Lascólas. Procedure In The Trial Court At The End Of The Trial And After The Trial At the close of all the evidence the defendants moved for a directed verdict in their favor. The motion was denied. The case was submitted to the jury on what the court described to the jury as issues.

A paper setting forth the questions and the answers of the jury 1 is a part of the record. It is reproduced here: “1. On the slander count, do you find in favor of the plaintiff or the defendants? PLAINTIFF_. ¹⁵⁹ “2.

On the false imprisonment count, do you find in favor of the plaintiff or the defendants? PLAINTIFF “3. If you found in favor of the defendants on both issues pi and #2 above, do not answer any further issues. “4. If you found in favor of the defendants on issue p2, do not answer this issue.

If you found in favor of the plaintiff on issue #2, do you find against defendant Betty Williams? (yes or no) MX NO YES : do you find against defendant Food Fair Stores? (yes or no) YES “5. If you found in favor of the plaintiff on either issue //I or #2: (a) What is the amount, if any, you assess as compensatory damages to plaintiff Barbara Lascóla? $5,000.00.

(b) What is the amount, if any, you assess as punitive damages to plaintiff Barbara Lascóla? $10,000.00. (c) What is the amount, if any, you assess as compensatory damages to plaintiff Wayne Lascóla? $2,000.00 .” We set out below the docket entries in the case reflecting the answers of the jury and the other proceedings thereafter, including the final judgment from which this appeal was taken. “30 Jan. 1975 The Jury answered Issues 1 and 2 ‘Plaintiff’; Issue 3 ‘Not Answerable’; Issue 4 ‘No as to Betty McClain Williams and Yes to Food Fair Stores’; Issue 5-a ‘$5,000.00’; Issue 5-b ‘$10,000.00’ and Issue 5-c ‘$2,000.00’. 30 Jan. 1975 Judgment Nisi in favor of Plaintiff Barbara Lascóla for the sum of ¹⁶⁰ $5,000.00 as compensatory damages and for $10,000.00 as punitive damages and in favor of Plaintiff, Wayne Lascóla for the sum of $2,000.00 as compensatory damages as against defendant, Food Fair Stores, Inc. only. 30 Jan. 1975 Judgment Nisi in favor of Defendant, Betty McClain Williams for costs of suit. 4 Feb. 1975 Plaintiffs’ Motion for New Trial as to Issue No. 4 concerning Defendant, Betty McClain Williams only filed. 21 Feb. 1975 Verdict in favor of the Plaintiffs as against Defendant Betty McClain Williams, individually, entered by the Court in view of the fact that this issue was not presented to the Jury for consideration, pursuant to Maryland Rule 560 (PERROTT, Judge). 21 Feb. 1975 Plaintiffs’ Motion for a New Trial ‘DENIED’ (PERROTT, Judge). 21 Feb. 1975 Judgment absolute in favor of the Plaintiff, Barbara Lascóla for the sum of $5,000.00 as compensatory damages and the sum of $10,000.00 as punitive damages and in favor of the Plaintiff, Wayne Lascóla for the sum of $2,000.00 as compensatory damages as against defendants, Food Fair Stores, Inc. and Betty McClain Williams and costs.” The motions for directed verdict made by both defendants at the close of all of the evidence raised the sufficiency of the ¹⁶¹ evidence to support a finding against them on the false imprisonment count and on the slander count, as well as the sufficiency of the evidence to permit consideration by the jury of punitive damages. They also questioned the sufficiency of the evidence to permit a finding that the defendant Betty Williams was acting within the scope of her authority so as to entitle the jury to find against Food Fair Stores, Inc. Contentions On Appeal In this Court the appellants raise the same questions of sufficiency that were raised by their motion below. They also claim that the trial court erred in several specified respects in declining to grant requested instructions and in giving other instructions over exception.

They also contend that the award of $2,000.00 to Mr. Lascóla was not warranted by the evidence. Lastly, they contend that the trial judge erred when, at the hearing on a motion by the Lascólas for a partial new trial, he directed the entry of judgment absolute against Betty McClain Williams rather than judgment for her in accordance with the judgment nisi. The Entry Of Judgment Absolute Against Defendant Williams We shall consider the last contention first. Maryland Rule 560, Special Verdict, authorizes trial courts, § a 1, to “require a jury to return a special verdict in the form of a special written finding upon each issue of fact.” The Rule further provides in § a 6 that “Upon the return of the special verdict of the jury, the court shall direct the entry of an appropriate judgment nisi.” Two other subsections of Rule 560 a are relevant to the procedure that was followed in this case.

They are: 4. “If in submitting the issues the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. ¹⁶² 5. “As to an issue omitted without such demand the court may make a finding; or if it fails to do so, it shall be deemed to have made a finding in accord with the judgment nisi entered.” It should be noted that the questions were not prepared by Judge Perrott, nor at his request, but were prepared and suggested by counsel for the appellants. No objection was made to their use as proposed. A reading of the questions makes it clear that they were not designed to call for a finding by the jury upon any issue of fact. They amounted to nothing more than a means of recording on paper the step by step process which a jury must go through in arriving at a general verdict.

In this case the questions were well suited to assist the jury because of the possibility of confusion in a case involving multiple issues, multiple plaintiffs, and multiple defendants. The findings that the jury was requested to record were the ultimate findings involved in any general verdict where the verdict must be for one or more plaintiffs or for one or more defendants, on multiple issues, and must, if appropriate, assess damages. In his very comprehensive instructions Judge Perrott explained to the jury numerous issues of fact which it should consider. Several, but by no means all of those issues, were whether Mrs. Williams acted with malice toward Mrs. Lascóla, whether she acted with or without justification or excuse, whether Mrs. Williams in fact slandered Mrs. Lascóla, whether she in fact falsely imprisoned Mrs. Lascóla, and whether, if she did those things, she was acting in the performance of her duties and functions and within the scope of authority conferred upon her by her employer; The jury was also instructed to find from the evidence whether Mrs. Williams had a qualified privilege to act as she did and whether that privilege was abused.

The judge further told the jury that if they found from the evidence that the only cause of the incident was a mistake by the cashier, such mistake would not be the basis for a cause of action. The court also explained to the jury several factual ¹⁶³ issues it might be required to consider on the question of damages. Timely after the recording and hearkening of the jury to its verdict, and the entry of judgments nisi, the appellees filed a motion for a new trial “as to issue #4 concerning the defendant, Betty McClain Williams, only”, and for grounds asserted that the verdict was against the evidence, against the weight of the evidence, against the instructions of the court, and against the law. No other post trial motions were filed by any party.

At the hearing on the motion for new trial counsel for the Lascólas explained what he wanted the court to do: “Now, what we request is that the Court change the verdict against the Defendant McClain to conform with the verdict against Food Fair, and we are basing this mainly upon the question which is on the record, which, I think, was abundantly clear that they simply — it was apparent that they did not want to hold Mrs. Williams in, but I think they were concerned about having her pay the verdict personally, which then, takes us into the Issue which was missing in