Montgomery Ward & Co. v. Cliser

Levine, J., delivered the opinion of the Court. This appeal is from separate judgments, entered below against appellant in one case, in the total sum of $15,000, on verdicts returned by a jury for damages arising from claims of false arrest, assault and battery, and slander. For each of the foregoing wrongs, appellee was awarded $500.00 in compensatory damages and $4,500 in punitive damages. This embroilment originated on the evening of September 2, 1970, when appellee, then 23 years of age and employed in the plumbing trade, entered appellant’s store in the Wheaton Plaza Shopping Center located in Montgomery County for the purpose of buying a tool box.

The evidence before the jury permitted it to decide that the following events occurred: Unable to find the particular tool box he wanted, appellee looked at other items in the same department and eventually selected a ratchet adapter, soapstone, test light and chisel for which he paid the cashier, who gave him a receipt. While in this department, he also examined, but did not purchase, a socket kit, which he returned to its place. He then proceeded to the electrical department in search of an adapter, but, unable to find the particular item he had in mind, he left the store. What transpired after appellee emerged from the store ⁴⁰⁹ is best revealed by the following excerpts from his testimony: “A I walked out towards the car and I got up to the car and I had the window down and I tossed the bag into the seat and then I heard somebody say something behind me and I turned around and here are these two, Murphy and M.D. [Emde] come up to me and tell me to take the stuff out of my pocket and I said to them; I said, ‘What are you talking about?’ * * * “Q After you turned around tell us what you observed? “A Well, Murphy and M.D. [Emde] come up and told me to take the stuff out of my pocket. “Q And who are Murphy and M.D. [Emde] ? “A The two security policemen that worked for Montgomery Ward. “Q What did you do when they told you to take the stuff out of your pocket? “A I asked him what he was talking about and he said— * * * “A . . . the stuff that you took out of the store, and . . . * * * “A I told him, ‘You’re crazy as hell.’ “Q What happened then? “A So then I told them, I said, ‘What I have got is in the bag that I bought,’ and I started to open up the car door and I never even got my hand on the car door, because he said, ‘No. I will get it,’ and I said, ‘No. You are not going to get it.

You don’t have any business in my father’s car.’ “Q What happened then? “A I started to open the car door. They didn’t say anymore. I started to open up the car door and one of them threw their hip up against ⁴¹⁰ the door to stop me from getting in the car, and I had my hand in between the door jamb. * * * “Q What happened then? “A One of them threw their hip against the door and then as soon as that happened the one that was standing behind me says, ‘Get him,’ and the next thing I knew they had both my arms twisted up behind my back, and dragged me back into the, this loading door, and took me back into the offices back there. * * * “Q Can you describe for us what you observed with respect to the parking lot area after you arrived at your car and threw the bag of merchandise into the window? “A Well, there was people coming around, all around the store, you know, walking out to their cars, leaving, just like I was. “Q How close were these people to you, to the best of your recollection? “A Well, I don’t know for sure, but they was, couldn’t have been very far away, because there were cars parked all over around mine. # * Appellee then testified that after the two store detectives took him into the office, they forced him to empty the contents of his pocket onto a desk. From his pocket, he removed some miscellanea, none of which represented store merchandise.

He also stated that he had put nothing in his pocket after arriving at the store. He then testified as follows: “Q After your pockets were emptied did you have any conversation with the man who was with you in the inner office? “A Yes. After he didn’t find anything then he asked me; I told him I wanted to get out of ⁴¹¹ here and he stuck his foot up against the door and told me that they wanted to talk to me. * * * “Q What happened then? “A He left his foot up against the door. I grabbed ahold of the knob and pulled on the door and he stepped away, and I went into the other office and the other door was blocked too. * * * “Q How many people did you observe? “A There was about three or four in there. “Q And how many people were in front of the door? “A There was two standing in front of the door. * * * “Q What happened then when you got to the second office? “A Well, then I told them to; would they move so I could get out of here and they just kept standing there and said they wanted me to sign a paper, release paper. “Q What did you tell them? “A I told them that I wasn’t signing nothing, that all I wanted was to get out of here, . . . .” After denying motions for directed verdict made at the close of plaintiff’s case and at the conclusion of all the evidence, respectively, the court submitted the case to the jury which returned the verdicts we have enumerated above.

Four issues are presented for our consideration by this appeal: (1) The admissibility vel non of a prior arrest record; (2) Whether the court should have directed a verdict for appellant on the basis that, as a matter of law, ⁴¹² there was probable cause for the arrest, thereby barring the claim for false imprisonment; 1 (3) That the evidence of publication was insufficient to permit the slander charge to be considered by the jury; and (4) That the jury should not have been allowed to award punitive damages, as in the false arrest and assault and battery claims there was insufficient evidence of wilfulness, malice and wantonness, and the conduct of the store detectives did not constitute slander per se. (1) When the trial commenced, appellant proffered to attack appellee’s character — on the basis that it was put in issue by the false imprisonment and slander claims— by introducing an office record showing appellee’s arrest in June, 1961, when he was not quite fourteen, for allegedly shoplifting in the same store. The trial court refused to admit the proffered exhibit, ruling that it was barred by Code (1957, 1966 Repl. Vol.) Art. 26, § 83 (e), a section of the juvenile court subtitle, which provides : “No adjudication upon the status of any child in the jurisdiction of the [juvenile] court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction of a crime, nor shall any child be charged with or convicted of a crime in any court, except that in the case when a child 16 years of age or over is charged with an offense which would amount to a felony in the case of an adult, the judge, after full investigation, may ⁴¹³ waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile judge in this chapter in conducting and disposing of such case.

The disposition of a, child or any evidence given in the court shall not be admissible as evidence against the child in any case or proceeding in any other court . . . (emphasis added) The gist of appellant’s twofold contention on this issue is that although a conviction, and not a mere arrest, may be employed to impeach the credibility of a witness or party, here, since appellee placed his character in issue by bringing the false arrest and slander claims, specific acts including a prior arrest were admissible. Secondly, it maintains that the court erred in excluding the arrest record upon the authority of § 83 (e), since that statute is limited in scope to juvenile court adjudications. In our view, there are two reasons why Judge Miller correctly excluded the arrest record.

First, we are not persuaded by appellant’s argument that § 83 (e) is inapplicable due to the absence of a juvenile delinquency adjudication. The key provisions of §83 (e), applicable to juvenile proceedings in Montgomery County only, are substantially similar to Art. 26, § 70-21, effective elsewhere in the state, which is part of the subtitle, “Juvenile Causes,” enacted as Ch. 432, Laws of 1969. Art. 26, § 70 expressly provides that: “The purposes of this subtitle are: ★ * * “(2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior, and to substitute therefor a program of treatment, training, and rehabilitation consistent with the protection of the public interest; * * ⁴¹⁴ Appellant’s argument tacitly concedes that if appellee had been found delinquent by the juvenile court, that adjudication would have been barred by § 83 (e). However, the record before us is silent on what happened after the 1961 arrest.

This omission demonstrates, we think, the unsoundness of appellant’s argument. For it would mean that, if following the earlier arrest, he was “adjudicated,” the unfavorable result, more likely to reflect upon his character, would be inadmissible, but the arrest, which connotes something less, could be used against him. On the other hand, if there were no juvenile court proceedings, or if there were such proceedings with a favorable result, then, surely, there could be no legitimate basis for the use of such a record in order to attack appellee’s character. At all events, the legislative intent to allow a person who may have committed an act of delinquency as a juvenile to truly rehabilitate himself would be distorted by appellant’s argument.

We reject appellant’s construction as, in our view, it would subvert the manifest intent of the Legislature to protect citizens against public disclosure — at least in civil proceedings — of charges brought against them as juveniles. In this connection, we note that under § 83 (e), the 1961 charge, theft of a $1.95 baseball, could not have been waived by the juvenile court. Moquin v. State, 216 Md. 524 , 140 A. 2d 914 (1958), heavily relied upon by appellant, is inapposite here, especially since that case involved charges which could be waived to an adult court. As an additional reason for upholding Judge Miller’s exclusion of the arrest record, we note that the episode for which the arrest was made occurred more than ten years before the trial, while appellee was barely 14 years of age.

In 29 Am.Jur.2d, Evidence, § 348, it is stated: “It is generally held that evidence of the character or reputation of a party to a civil or criminal case should relate and be confined to a time not too remote from the time of the act in question. Thus, evidence to prove the good character ⁴¹⁵ or reputation of an adult should be confined, at least, to evidence of his character or reputation while an adult, and should not relate to his character or reputation as a youth. No precise time limit can be laid down, however, for the admissibility of evidence of character or reputation, but rather each case must be decided on the basis of its own particular facts. Of necessity much must be left to the discretion of the trial court as to the admissibility of evidence of reputation, objected to on the ground of remoteness.” (emphasis added) This Court has held that the lapse of time following the commission of a crime may be so long that its occurrence would be too remote to affect a witness’s credibility, and that, therefore, admissibility vel non should be left to the sound discretion of the trial judge.

Cousins v. State, 230 Md. 2 , 185 A. 2d 488 (1962) ; Burgess v. State, 161 Md. 162 , 155 A. 153 (1931), and Simond v. State, 127 Md. 29 , 95 A. 1073 (1915). We see no rational basis for applying a different test where the objective is an attack on character rather than credibility, and far less where a mere record of arrest, rather than an actual conviction, is employed under the facts presented here. Finding no abuse of discretion, we refuse to disturb Judge Miller’s ruling. (2) In contending that a directed verdict should have been granted on the basis that probable cause was established as a matter of law, appellant argues strenuously that the testimony of Emde, the store detective, showed “clearly, emphatically, and unequivocally, that he did, in fact, see [appellee] remove the socket from its display case, handle it, and proceed to slip the socket into his pocket.” What this argument plainly overlooks is that appellee stoutly denied putting the socket in his pocket, claiming instead that he handled it but returned it to its place. ⁴¹⁶ In Banks v. Montgomery Ward & Co., 212 Md. 31 , 128 A. 2d 600 (1957), we defined probable cause as a: “. . . reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty, (citations omitted) 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.” 212 Md. at 39 . We regard it as well-settled that 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, but when the facts are disputed, the question may properly be submitted to the jury under adequate instructions. Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 658 , 261 A. 2d 731 (1970) ; Banks v. Montgomery Ward & Co., supra, 212 Md. at 42 ; Safeway Stores, Inc. v. Barrack, 210 Md. 168, 175 , 122 A. 2d 457 (1956) ; Kennedy v. Crouch, 191 Md. 580, 590 , 62 A. 2d 582 (1948).

Our inspection of the record reveals that Judge Miller carefully explained this issue to the jury, and we note that appellant took no exception to that portion of the instructions. That the jury chose to believe appellee rather than appellant’s store detective is amply demonstrated, we think, by its verdict. We fail to see, unless appellee’s testimony is completely ignored, how it can be said, as a matter of law, that appellant had probable cause, as we have defined it, for appellee’s arrest. Appellant’s contention that there was insufficient evidence of publication to take the issue of slander to the jury rests on what it regards as a flaw in appellee’s testimony, which, it says, deals a fatal blow to his case in light of Tocker v. Great Atlantic & Pacific Tea Company, 190 A. 2d 822 (D.C. App. 1963).

The testimony it quotes is as follows: ⁴¹⁷ “Q Can you describe for us what you observed with respect to the parking lot area after you arrived at your car and threw the bag of merchandise into the window? “A Well, there was people coming around, all around the store, you know, walking out to their cars, leaving, just like I was. “Q How close were these people to you, to the best of your recollection? “A Well, I don’t know for sure, but they was, couldn’t have been very far away, because there were cars parked all over around mine.” Thus, it contends that this testimony fails to establish where third persons on the parking lot may have been in relationship to appellee, and whether they overheard the conversation. We think appellant’s heavy reliance on Tocher, supra, is misplaced as we find it distinguishable from the facts of the case at bar. There, a store manager stopped a woman as she left the store and accused her of putting back merchandise in the wrong place. She contended that the