Kimbrough v. Giant Food, Inc.

Davidson, J., delivered the opinion of the Court. At about 7:25 a.m. on 13 February 1972 two store detectives employed by Giant Food, Inc., arrested the appellant, Billy Rich Kimbrough (Kimbrough), a security guard then employed as a night watchman, at a Giant store located on Annapolis Road in Prince George’s County, Maryland. The arrest took place after Kimbrough, having completed his shift as a night watchman, had left the Giant store and while he was walking toward his car carrying two bags full of grocery store items. On 12 May 1972 the District Court acquitted Kimbrough of the charge of shoplifting.

On 14 September 1973 Kimbrough filed suit in the Circuit Court for Prince George’s County against the appellees, Giant Food, Inc., and one of the store detectives (Giant), seeking, insofar as here relevant, damages for false arrest and malicious prosecution. After the presentation of all the evidence at a jury trial held on 9-10 May 1974, Judge Samuel W. H. Meloy found, as a matter of law, that Giant had probable cause to detain and arrest Kimbrough for shoplifting and, consequently, that no civil liability could attach. Accordingly, he granted a directed verdict in favor of Giant. On 13 May 1974 Kimbrough filed a motion for a new trial which Judge Meloy denied, after a hearing, on 4 June 1974.

On that day final judgment was entered in favor of Giant. This appeal is from that final judgment. Maryland Code (1957, 1971 Repl. Vol.), Art. 27, § 551A, provides, in pertinent part: “Section 551 A. Shoplifting.

(a) What constitutes. — In any mercantile establishment, it is unlawful for any person ⁶⁴³ 1) to remove any goods, wares or merchandise from the immediate place of display or from any other place within the establishment with the intent to appropriate the same to the use of the person so taking, or to deprive the owner of the use, or value, or any part thereof; (c) Civil liability for detention or arrest. — A merchant or an agent or employee of the merchant who detains or causes the arrest of any person shall not be held civilly liable for detention, slander, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, whether the detention or arrest takes place by the merchant or by his agent or employee, if in detaining or in causing the arrest of the person, the merchant or the agent or employee of the merchant had at the time of the detention or arrest probable cause to believe that the person committed the crime of shoplifting as defined in this section.” Under the common law want of probable cause has always been an essential element of an action for malicious prosecution. 1 Thus, the existence of “probable cause” to believe that a crime had been committed by the plaintiff, on the part of the person initiating the criminal action, barred the recovery of damages against him. The same was not true with respect to the tort of false arrest or imprisonment. Under the common law, in a false arrest or imprisonment case, an arrest or detention without legal authority, with or without probable cause, rendered the arresting person liable for compensatory damages, and, if the act was inflicted maliciously or wantonly, for punitive damages. The existence of “probable cause” on the part of the person ⁶⁴⁴ making an arrest could be considered for the purpose of mitigation of punitive damages but not for the purpose of defense. 2 Article 27, § 551A (c), by its express terms, changed the common law so that the existence of “probable cause” for an arrest or detention with respect to the crime of shoplifting relieved a merchant from civil liability when false arrest or false imprisonment was claimed. 3 As a result it is now the law that want of probable cause is an element not only of an action for malicious prosecution but also for an action for false arrest or imprisonment.

In the case of false arrest and imprisonment, however, a merchant is relieved from civil liability only if the crime causing the arrest or detention is shoplifting as that crime is defined in the Act. The question here is whether as a matter of law Giant, at the time of Kimbrough’s arrest, had probable cause to believe that he had committed the crime of shoplifting as defined by Section 551A (a) of the Act. Kimbrough contends that in order to establish the crime of shoplifting as defined by the Act, it is necessary to show, among other things, that (1) a seller-customer relationship exists between the merchant and the person taking the goods; (2) that the merchandise is taken during business hours; (3) that the merchandise was taken from the display shelves of the merchant’s store; and (4) that the merchant was the owner of the goods taken. He further asserts that in order for the merchant to establish probable cause he must produce evidence to establish each of these elements.

We do not agree that all of the factors set forth by Kimbrough are requisite elements of the crime of ⁶⁴⁵ shoplifting. Nor do we agree that a merchant must produce evidence to show each of the requisite elements of the crime of shoplifting in order to establish probable cause to believe that that crime was being committed. The words of Art. 27, § 551A (a) are, for the most part, clear and unambiguous, thus requiring no interpretation or construction. The plain meaning of the words used is the best indicator of legislative intent. 4 The statute says that when any person in a mercantile establishment removes any goods, wares or merchandise from a place within the establishment with the intent to appropriate the same to his own use, or to deprive the owner of the use thereof, the crime of shoplifting has been committed. 5 There is no requirement that the person taking the goods be a “customer” of the establishment or that a “seller-customer” relationship exist; that the goods be taken during business hours; or that the merchandise be taken from the display shelves.

The words of the statute are not clear and unambiguous with respect to the question of whether “ownership” or “lawful possession” of the goods by the merchant is an essential element of the crime of shoplifting. Where the language of a statute is of doubtful meaning the courts will adopt a meaning which will best harmonize with the objectives and purposes of the enactment. 6 ⁶⁴⁶ Giant contends that the use of the disjunctive word “or,” preceding the statute’s requirement of an intent to deprive the owner of the use or value of the goods, eliminates ownership or lawful possession as an essential element of the crime of shoplifting. We do not agree that by the use of that disjunctive connective the legislature intended so material and radical a departure from the traditional larceny concept that ownership or lawful possession in a person other than the taker is an essential element of the crime. 7 The purpose of the Act was to help protect merchants from the theft of their goods. 7a Under the construction urged by Giant, a theft of goods from a customer within a mercantile establishment would constitute the crime of shoplifting. We do not believe that this was intended by the legislature.

Our view is supported by the fact that the items taken must be “goods, wares or merchandise” removed from a mercantile establishment, which indicates that the goods taken must be ones owned by or lawfully possessed by the merchant. Moreover, such an interpretation precludes the existence of a possible inconsistency with or repugnancy between the shoplifting statute and those larceny laws applicable to theft from a mercantile establishment. 8 We therefore conclude that under Section 551A (a) ownership or lawful possession of goods by the merchant is an element of the crime of shoplifting. ⁶⁴⁷ Whereas ownership or lawful possession by the merchant is an element of the crime of shoplifting which must be proved in a criminal proceeding, it is not necessary for a merchant to prove either ownership or lawful possession in order to establish probable cause to believe that that crime had been committed. The rule of probable cause is a nontechnical conception, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. 9 Probable cause has been defined as: “. . . a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves tc warrant a cautious man in believing that the accused is guilty . . . mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person.” 10 Thus, in order for probable cause to exist, there must be facts known to the person making the arrest such as would influence the mind of a reasonable man to believe that the goods taken are owned or lawfully possessed by the merchant.

At the time of the arrest the person making it is not required to know that the goods are owned or lawfully possessed by the merchant but only to have reason to believe that they are. 11 Kimbrough next contends that the trial court erred in granting a directed verdict for Giant. He maintains that the facts concerning the existence of probable cause, and in particular the question of the ownership of the goods, were ⁶⁴⁸ disputed and that the question of probable cause should have been submitted to the jury. Before the enactment of Section 551A (c), the burden of proof in malicious prosecution cases was, as we have said, on the plaintiff to show that the defendant instituted criminal proceedings against him without probable cause. Now, in addition, under Section 551A (c), the plaintiff must establish want of probable cause to believe that the crime of shoplifting had been committed in order to recover in an action for false arrest or imprisonment.

The existence of probable cause is a question to be determined as a matter of law by the court upon a given set of facts from which only one inference can be drawn. When the facts are disputed or more than one inference can be drawn from a given set of facts, the question must be submitted to the jury under adequate instructions. 12 As accurately stated in Kennedy, swpra, 13 the rule is: “If the facts relied on to constitute probable cause, or the inferences to be drawn therefrom are clear and undisputed, the question is one of law for the court; but if the evidence or inferences to be drawn therefrom are disputed, it becomes a mixed question of law and fact.” 14 Additionally, when a trial court directs a verdict in favor of one of the parties, this Court must assume the truth of all credible evidence in the case tending to sustain the contentions of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Thus, in determining whether a plaintiff has produced sufficient evidence to go to the jury, the evidence produced as well as all legal and permissible inferences drawable therefrom, must be considered in the ⁶⁴⁹ light most favorable to the plaintiff. 15 If such evidence and the inferences deducible therefrom lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury. 16 Viewing the evidence in this light, we narrate the facts as follows. On Saturday night, 12 February 1972, a store detective employed by Giant Food stationed himself at the employees’ entrance to the supermarket.

At about 11:25 p.m. the detective observed Kimbrough enter the store and watched him punch in. The detective noted that Kimbrough had no packages with him when he entered the store. Because Kimbrough had no duties to discharge until midnight he walked from the store to a nearby People’s Drugstore to purchase some cigars. En route he noticed a Giant shopping cart which held two bags full of groceries that he assumed belonged to a customer who would shortly pick the items up.

When Kimbrough returned from the drugstore he observed that the groceries were still in the cart. He wheeled the cart inside the Giant telling Mr. Young, a fellow security guard, what he had done. When no one claimed the groceries within the next five or ten minutes, he stamped the words “Giant Security” on each of the bags. He stapled cash register receipts which he found in the shopping cart, one in the amount of $.15 and the other in the amount of $.35, on top of each bag.

He placed each of the bags under a desk at the front door, telling Mr. Young that, in case someone called for them, the packages could be found under the desk. Although the store detective was then in the store, he was making his rounds and was not standing at the front of the store. At midnight all of the cash registers were closed. They ⁶⁵⁰ remained closed throughout Kimbrough's shift at the store.

Kimbrough made no purchases during the time that the cash registers were open. All of the employees and agents of Giant other than Kimbrough, including the store detective conducting the surveillance, left the store by 12:40 a.m. on Sunday morning. Kimbrough remained in the store alone. Throughout the night he performed his usual guard duties, remaining inside the store.

At 6:00 a.m. the store detective, accompanied by an additional detective, returned to the store parking.lot, parked about 75 feet from the store entrance, and watched the store entrance through binoculars. At 7:20 a.m. Kimbrough was relieved by another security guard. Notwithstanding company policies which required that goods mislaid or lost by customers and recovered by store employees or agents be inventoried in a log book and then returned to the shelves for sale, if perishable,