Montgomery Ward & Co. v. Keulemans

Menchine, J., delivered the opinion of the Court. This is an appeal by Montgomery Ward & Company, Inc. (Montgomery Ward), Carleton R. Johnson (Johnson) and Allen Gilgenberg (Gilgenberg) from judgments entered in the Circuit Court for St. Mary’s County in favor of Alphonse Keulemans (Keulemans) after jury verdicts 1 for $1,350.00 and $25,000.00. Keulemans claimed compensatory and punitive damages from Montgomery Ward, Johnson, Gilgenberg and another 2 in a four count amended declaration alleging (1) false arrest, (2) false imprisonment, (3) malicious prosecution, and (4) defamation. 3 Before reaching the substantive issues raised after the actual trial of this case in the lower court, it is necessary to pass upon a motion by the appellants to restrict the scope of that trial. Motion to Restrict Scope of Trial The judgments in the subject appeal were entered in the second trial of the cause.

Verdicts in favor of Keulemans against the appellants in an earlier trial had been set aside on motion for new trial. ⁸³ At the earlier trial, the jury rendered general verdicts for the plaintiff of $25,000.00 for compensatory damages and of $15,000.00 for punitive damages against all defendants. Before that verdict was recorded, however, counsel for the defendants declared: “If the Court please, I would like that broken down into four counts.” The trial judge thereupon addressed the jury as follows: “Ladies and gentlemen of the jury, Mr. Foreman, we ask you to return to the jury room and break down your verdict as to the four counts of false arrest, false imprisonment, malicious prosecution and defamation of character and also against which defendants you assess or find against. There are four defendants in the case; Montgomery Ward, Carleton Johnson, Allen Gilgenberg and Charles Davis. So you may return and reconsider your verdict.” At that point counsel for the defendants seems to have had a change of heart, saying, “I would move for a mistrial at this point, your Honor.

I think the verdict is improper and I do not think the jury can remedy it.” The court overruled the motion. After further deliberation, the jury returned to the courtroom and rendered the following verdicts: “For punitive we find $15,000.00 against Montgomery Ward; Under false arrest for compensatory $6,000.00 against Mr. Johnson; False imprisonment $6,000.00 against Mr. Johnson; Malicious prosecution, compensatory, $6,000.00 against Montgomery Ward; and defamation, compensatory, $7,000.00 against Montgomery Ward, Mr. Johnson and Mr. Gilgenberg.” The verdicts of the jury were then recorded. It should be noted that the aggregate of the verdicts as ⁸⁴ amended or corrected by the jury totaled $40,000.00 (as did. the aborted general verdicts for $25,000.00 and $15,000.00). It should be noted also that at least one verdict was rendered against each of the present appellants.

A motion, unconditional in terms, for judgment N.O.V. and/or for a new trial was filed in behalf of all defendants. After hearing, the following order was passed by that trial judge: “Upon consideration of the Motion of Judgment NOV and/or New Trial, it is by the Circuit Court for St. Mary’s County, Maryland, this 28th day of March, 1973, “ORDERED, that the defendants are granted a new trial in the case unless the plaintiff files a remittitur of $29,000.00 within ten days from the signing of this order. “Said Remittitur represents a reduction of $19,000.00 on the compensatory damages and $10,000.00 on the punitive damages bringing the total damages assessed to $11,000.00 instead of the original $40,000.00 verdict.” The plaintiff having declined to file the remittitur, the cause was brought to trial a second time. Before commencement of the second trial a motion was made by the appellants to restrict the scope of the new trial. The trial judge, properly we think, denied the motion.

The appellants urge that the new trial granted by the first trial judge was only partial in character. They argue that the verdicts rendered by the first trial jury operated with finality to discharge Montgomery Ward and Gilgenberg from all liability under the false arrest and false imprisonment counts and to discharge Montgomery Ward from all liability under the malicious prosecution count. Careful scrutiny demonstrates that the argument is ingenious but unsound. It is true that the verdicts were in varied amounts and some were rendered as to less than all defendants and were attributed to specific counts of the declaration.

Nonetheless, ⁸⁵ the motion for a new trial or for.judgment N.O.V. was couched in general terms and relief from the verdicts was sought by all defendants. The motion did not make reference to a particular verdict or a particular defendant, or to any separate count of the declaration. The overturn of every verdict was sought. Each verdict was affected by the court’s conditional grant of a new trial.

We hold that in such circumstances every verdict became a nullity when the plaintiff declined to file a remittitur. We point out that the remittitur required of the plaintiff was declared in a single sum of $29,000.00. This fact also tends to show an intent and purpose by the trial judge to grant a new trial as to all defendants under all counts absent the filing of a remittitur in that amount. Maryland Rule 567 c. reads as follows: “c.

Partial — Severable Matter. Where it appears to the court upon a motion for a new trial that any grounds for a new trial affect only a severable part of the matters in controversy, or only some or one of the parties, the court may grant a new trial as to such part, or as to such party and either enter final judgment as to the remaining parts or parties, or stay the entry of final judgment until after the new trial.” While this rule plainly permits a trial judge to grant a partial new trial, we conclude that in the subject case the general character of the motion for new trial and/or for judgment N.O.Y. and the all-inclusive words used by the trial court in the order passed pursuant to that motion, combine to show that the grant of a new trial was absolute and not partial in effect. Cf. Cavey v. Srnec, 256 Md. 483, 488 , 260 A. 2d 292, 294-95 .

The second trial properly was permitted to proceed against all of the subject appellants. Appellants next attack the judgments upon the grounds: (a) That there was probable cause, as a matter of law, for the arrest and prosecution and thus ⁸⁶ the motion for a directed verdict as to all defendants should have been granted; (b) That there was no evidence legally sufficient to support an action against Gilgenberg; and (c) That the verdict and judgment for punitive damages should have been stricken on motion for judgment N.O.V. because no compensatory damages had been found in the malicious prosecution action. Probable Cause The threshold question of what facts are sufficient to show probable cause is one of law for the court; but whether such facts are proved is for the jury. Banks v. Montgomery Ward & Co., 212 Md. 31, 42 , 128 A. 2d 600, 606 .

In Banks it was said at page 39 [604]: «* * *Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to 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.” (Interior citations omitted.) See also Brewer v. Mele, 267 Md. 437, 447 , 298 A. 2d 156, 163 . The rules of law controlling the determination of the question were clearly and succinctly declared in Durante v. Braun, 263 Md. 685 , 284 A. 2d 241 , wherein it was said at page 688-89 [243]: “In deciding this question [existence of probable cause] we must keep in mind that although sound public policy affords protection to persons who in good faith and on reasonable grounds cause prosecution of another (Stansbury v. Luttrell, 152 Md. 553, 565 , 137 A. 339 (1927)), nonetheless, the rule of law prevails, that where the court directs a verdict in favor of one of the parties, we must ⁸⁷ 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.

Trionfo v. R. J. Hellman, Inc., 250 Md. 12, 15 , 241 A. 2d 554 (1968); Smack v. Whitt, 249 Md. 532, 536 , 240 A. 2d 612 (1968). “The trial judge correctly stated the respective roles of court and jury with relation to the issue of ‘probable cause’ in a malicious prosecution action, paraphrasing what we said in W. T. Grant Co. v. Guercio, 249 Md. 181, 187 , 238 A. 2d 855 (1968), to the effect that: ‘If the facts or inferences drawable from the “probable cause” that motivated a criminal charge are clear and undisputed, the question is one of law for the court, but if such facts or inferences are disputed, it is a question of fact for the jury. [Citation of cases omitted].’ 249 Md. at 187.” The record would support the following facts: Alphonse Keulemans, a native of Brussels, Belgium, was a naturalized citizen of the United States. Upon arrival in the United States he gained employment with the Giant Food Stores and remained in their employ for ten years. While so employed, the former operating manager of Montgomery Ward sought out Keulemans and asked him to become receiving stock and shipping manager at Montgomery Ward’s store in the Capital Plaza Shopping Center, Hyattsville, Maryland. He accepted.

For eight years, up to the day of the events giving rise to the subject action, Keulemans pursued that employment. A position of some responsibility, Keulemans was supervisor of twenty-six employees in his department, receiving merchandise on the dock; handling freight bills; shipping merchandise for delivery; getting merchandise to the marking room. Keulemans’ personal duties included spending about an hour a day on the store floors checking ⁸⁸ merchandise on the shelves to see that it was priced and coded correctly. In that part of his job he was required from time to time to pick up merchandise for examination, and, if necessary, for correction of improper marking.

Such was Keulemans’ status on June 22, 1971. Carleton R. Johnson, a member of Montgomery Ward’s security force, had been employed at the store for about one year before the incident. He knew the status of Keulemans at the store. The arrest, with the ensuing prosecution, was precipitated by events occurring in the store on the afternoon of June 22, 1971.

The versions of those events by Keulemans and by Johnson are materially different. Keulemans thus described his actions: “Q Did there come a time during that day when you went to the counter in Montgomery Ward where sunglasses were sold? A Yes, I found out in the receiving area upstairs that we had two racks of polaroid glasses that came in, and naturally we cannot touch them upstairs because that was against the regulations in the company. Nobody can buy anything or pick something and put it on the side to be bought later.

So I said, well as soon as I have a break I’ll go down on the floor and take a look and see what kind of glasses they have. The pair over People’s Drug Store didn’t fit right because that was the only thing available at that time. So I went down on the floor around 4:00 o’clock in the afternoon and went to the racks and picked up one or two pair of glasses and matched them up with my sunglasses that I had already to see that I could find, the pair that would fit better my regular glasses, and while I was doing this they paged me and called me on the intercom. So I put the glasses that I had in my hand, I was trying to match up, back on the shelf, put mine in my pocket and went to the phone and ⁸⁹ answered my page, and they wanted me to do something right away.

So I forgot about the whole thing. I just kept on doing my work. Q Well, this display of sunglasses, did they have any of the clip-on type that you were looking for? A Yes, but they were all the way down on the bottom.

That is the way the rack comes, the regular, all Polaroid glasses are hanging on top, full glasses, and the clip-on, all the way down on the bottom. Q How far from the floor are the clip-ons, were the clip-ons on that day? A The clip-ons were right on the bottom of the shelf. That is no higher than this.

So I had to stoop down to look at it. Q I show you these clip-on sunglasses and ask you to identify them. A Yes, this is the pair that I bought over People’s Drug Store. Q When you were looking at the glasses at Montgomery Ward were you trying them on?

A On my face, you mean? Q On your glasses? A No; I didn’t try them on these glasses. I tried them with my glasses.

Q But you were trying them on? A I was not trying them on' my face. I was just matching them up, you know, like this, and putting them over the pair I had already to see what — if they were bigger or smaller. Q Did you find any bigger?

A Well, I didn’t look long enough because I got paged on the intercom, you see, and I thought this was more important than to fool around with this. ⁹⁰ Q If you didn’t have them in your hand where did you have them? A I was down on my knees, bent down, and I had my pair in my hand and I took a couple pairs off the shelf and compared them with mine and then every time I found one that didn’t fit I put it back on the shelf, and I took another one and fitted it. Q What do you mean you tried two pair? A I just took 2 pair, [off the rack] one at a time * * * I compared them and put them back.” Johnson had arrested Keulemans solely on the basis of observations that he thus detailed: “Q Where did you first observe him?

A I observed Mr. Keulesman down in front of the glass case, sunglass case. Q Where were you at that — at that time? A I was walking down the main aisle. Q What did you see Mr. Keulesman do when he was stooping down?

A I seen Mr. Keulesman reach out and pick up three pairs or two pairs of clip-on glasses. He had three pairs in his hand, and he was reaching to get more glasses. Q Then what did you see Mr. Keulesman do? A He looked at the glasses and about that time he got a page.

Mr. Keulemans got a page, and then they gave him a phone number to call. At that time he put two pair of glasses back. He palmed the third pair and instead of using the ■phone right directly behind him, he moved around the counter, used the phone approximately fifty feet away. And at that time he got behind the pole, got on the phone, slipped the glasses in his pocket. ⁹¹ Q Can you described these three glasses to me?

Were they all similar? A Yes, sir. Q Was there anything differentiating one pair from another? Did they all look the same?

A The same. Yes, sir.” Johnson testified that he kept Keulemans under surveillance until the latter left the store and entered his automobile at about 6:30 p.m. Again there are two versions of what then occurred. The Keulemans version: “Well, I worked until about 6:30 that day when I left the store I walked out to the parking lot and got in my car, started the car, and I was ready to go home when I saw Mr. Johnson running out the garage of the store.

So when I saw him running out the garage I said it looks like he’s running after a shoplifter, because I did help Mr. Johnson sometimes on security purposes. So I got — I stopped the motor of the car, got out of my car and walked to him and asked him, ‘Can I help you?’ He said, ‘No.’ He said, ‘You can’t help me.’ He said, ‘But I like to talk to you.’ I said, ‘Well,’ I said, ‘is it that important to talk to me now?’ I said, ‘because I am ready to go home.’ He said, ‘Yes; it is important. I like to talk to you in my office.’ I said, ‘Okay.’ So I walked with him to his office and when we get in his office he looked at me with a smile on his face, and he said, T finally got you, did I?’ I said, ‘What do you mean, you got me?’ He said, ‘Yes, I saw you taking a pair of clip-on sunglasses off the shelf this afternoon.’ I said, T didn’t take any clip-on sunglasses off the shelf.’ I said, — and I went in my pocket then, you see, and I showed him the glasses. I said, ‘You mean those?’ He said, ‘Yes.

You took them off the shelf this afternoon.’ I said, ⁹² ‘You’re wrong.’ I said, T bought them from People’s Drug Store.’ I said, ‘And I can prove that.’ So he said, — ' - Q What if anything happened then? A Well, then he told me I was under arrest. So when — as soon as I was under arrest I said, ‘Well, —’ I said, T better talk to the store manager or my operating manager, but none of the two were there. They were already gone.

And then I said, — I asked him if I could talk to Mr. Gilgenberg. Q Who is he? A He is in charge of all security in the District for Montgomery Ward. Q Did you talk to him?

A I talk to Mr. Gildenberg. Q How did you talk to him? A I told him what happened to me. I said to him, ‘What are you trying to do to me?’ after I explained to him what happened.

So the answer he gave me, he said, ‘Well, we got laws into this country and if you didn’t take it,’ he said, ‘you don’t have anything to worry about.’ He said, ‘In the meantime,’ he said, T got to go by what Mr. Johnson told me.’ ” The Johnson version: “Q Did there subsequently come a time when you talked to Mr. Gilgenberg — excuse me — Mr. Keulemans after he had left the store? A Yes, sir. To be sure to make — see if he was going to pay for the glasses or not. This occurred about four-thirty, quarter-to-five.

We followed him around the store until he left. He left the store, was going to his car, and as he got to his car I stopped him and asked him would he come to the office. ⁹³ Q Did he subsequently go to the office? A Yes; he did. Q When he came to the office did he tell you where he allegedly purchased the glasses?

A Well, I asked him about the glasses, at first. And then he got all flustered, and all, and said, T bought them at People’s.’ ” After Keulemans had been arrested, but before he had been compelled to surrender himself to police, Johnson and Keulemans’ attorney talked with the manager of the Peoples Drug Store. The manager told them that the drug store “didn’t carry these glasses any more.” It does not appear that the manager was asked whether the drug store carried the glasses at the time Keulemans claimed he had purchased them. Two days after his arrest Keulemans contacted Mrs. Helen Temple at the Peoples Drug Store.

Mrs. Temple recalled the purchase vividly. In the course of her testimony .she said: “Q How long had you been employed at People’s Drug Store? A Well, this July would be ten years, and I was there nine years and eight months. From 1963.

Q At the same store, Capital Plaza? A Same store, same place. Q Directing your attention to the month of March of 1971, at that time were you selling this type of clip-on sun glasses? A I was.

I was. By Mr Casey: Q Mrs. Temple. I show you Plaintiffs Exhibit No. 2 [Envelope for film bearing the date 3/12/71 ⁹⁴ and Keulemans’ name.] and ask you if you can identify that? A Yes; I can.

I can identify it as People’s — this isn’t my writing. I didn’t take this work in. But I delivered this film. Q Do you remember who you delivered it to?

A Yes; I do. I delivered it to Mr. Keulemans. Q At any time — at the time you delivered this film to Mr. Keulemans was there any other purchase made? A A pair of sun glasses, the style that you have right there in your hand.

Q Is there any serial numbers or anything else on this? A No. I mean to order I