Newton v. Spence

Moore, J., delivered the opinion of the Court. Appellant, a former part-time employee of Sears Roebuck & Co. (Sears), was awarded conpensatory and punitive damages aggregating $42,500 after a jury trial under a five-count declaration alleging assault and battery, false arrest, false imprisonment, slander and malicious prosecution. The granting of Sears’ motions for judgments n.o.v. reduced appellant’s recovery to $11,500. Here he seeks primarily the restoration of the difference of $31,000, representing punitive damages against Sears for $6,000 under Count IV (slander) and $25,000 under Count V (malicious prosecution).

We conclude that Sears’ motions should have been denied. However, we also hold that the trial court’s error is not correctible by reinstatement of the above judgments and that the case must be remanded for a new trial against Sears only, for the assessment of punitive damages pursuant to Counts IV and V. I The appellees, in addition to Sears, are two individuals who were also employed by Sears at its store in Mondawmin Mall, Baltimore, on May 25, 1970, when the cause of action arose: Edward Spence, a full-time employee in the hardware department with certain supervisory authority over appellant and other part-time personnel; and Michael D. DiNicolo, the security manager in the store at that time. At the time of trial in January 1973 appellant was 25 years old and a graduate student. In 1970 he was employed full-time at the Baltimore City Health Department and ¹²⁹ part-time as a sales clerk in the hardware department at Sears, working four nights a week from 6 p.m. until 9 p.m.

Cash shortages had been occurring on the two cash registers in the hardware department for several weeks prior to May 25, 1970. Surveillance of the department was being made by DiNicolo through the use of a “spread sheet” indicating the names of the employees on duty at the time the thefts occurred. Appellant was one of the employees under suspicion. This was known to Spence as well as to the personnel manager, D. A. Wiley.

On May 25, 1970, at about 7 p.m., DiNicolo and Spence appeared near the cash register where appellant was working and when he finished with a customer, DiNicolo invited him to the security office. Appellant testified that DiNicolo was “pulling” him along to the security office, a point denied by DiNicolo. At the office appellant was informed by DiNicolo that Spence had seen him remove cash from the cash register and place it in his left front pocket. Spence repeated his accusation.

At the request of DiNicolo, appellant emptied his pockets, revealing only a few small bills and some change. Appellant remained in the security office from approximately 7 p.m. until near closing time at 9 p.m. The evidence was disputed as to whether the door was open or closed during this period. DiNicolo questioned him at intervals about the alleged theft.

At one point, Personnel Manager Wiley appeared and both DiNicolo and Spence withdrew from the security office. Wiley informed them that the cash and checks in the cash register had been counted twice by Wiley and an assistant security officer, revealing a cash shortage of $156.00. Appellant throughout the confrontation maintained his innocence and stated that Spence was a liar. DiNicolo had administered the Miranda warnings, stating that he did this whenever he brought an employee to the security office “for questioning under the law.” Upon request appellant was permitted to use the telephone and called his brother-in-law.

According to appellant, at the conclusion of the confrontation he requested a letter of apology from DiNicolo and DiNicolo, he testified, said “fine.” DiNicolo denied this ¹³⁰ and testified that immediately after appellant left his office he telephoned the police at the Northwest Station, made a verbal report of the theft and waited for a detective to arrive to whom he gave a statement. This, he stated, was a necessary prerequisite to obtaining an arrest warrant for which he made application to a magistrate the next morning. Upon returning to his home after 9 p.m. on the 25th of May, appellant telephoned his attorney for the purpose of setting up an appointment with DiNicolo as soon as possible. When appellant returned home from his daytime employment on May 26, he was informed by his parents that the police had informed them of a warrant for his arrest.

He immediately went to the police station where he was fingerprinted and photographed and detained in a cell for approximately 45 minutes until bail could be arranged. The following day, May 27, 1970, appellant was tried before a magistrate on a charge of larceny after trust of $156.00 and was acquitted. DiNicolo and Spence both testified against him. Appellant had never before been arrested.

He testified that the detention in the store followed by his arrest and processing caused him anxiety and necessitated medical care. Received in evidence were a bill for attorney’s fees in the amount of $500 and a doctor’s bill for $40.00. Appellant further testified, when asked if he knew any reason why Spence would falsely accuse him, that they had previously had “a couple of words” over whether company policy required appellant to wear a tie and, perhaps more significantly, over appellant’s refusal to ring Spence’s key on the cash register to boost his commissions. On the other hand, he said, their relationship “was not a bad relationship —just none at all.” A somewhat strange but incontrovertible aspect of the evidence is that the audit department of Sears discovered, on the morning of May 27, 1970, that no shortage had in fact occurred.

This was not known to DiNicolo nor to Spence when they testified that morning against appellant. Indeed DiNicolo testified that this revelation was not made known ¹³¹ to him until approximately two years later when answers to interrogatories were being prepared by Sears’ counsel. Nevertheless, Spence firmly maintained, even at the time of the trial in this case, that he had actually seen appellant take money from the cash register and place it in his pocket. On his part, Spence denied having any animus toward appellant.

As to his motivation for reporting appellant to DiNicolo, he testified: “I felt every employee in the department should have a right to be protected. [I]f anyone else had saw [sic] the same thing I am sure they would have went [sic] to Mr. DiNicolo.” Again, he testified that his job was to “. . . help run the department and to protect properties of Sears and Roebuck in the hardware department.” He was aware, he said, of the prior shortages in the department. He asserted that there was “no bad blood” between him and appellant; that he had never requested that appellant should ring his key; and that he bore no hostility toward appellant because of his unwillingness to wear a necktie in accordance with company policy. Spence, DiNicolo and Sears were named as defendants in each of the five counts of the declaration, each count alleging that Spence and DiNicolo were acting “individually, jointly and as agents, servants and employees” of Sears. Each count contained an ad damnum clause seeking compensatory damages in the amount of $50,000 and punitive damages in the amount of $150,000.

The appellees, in a joint plea, interposed the general issue and justification as to all counts, with an additional plea of “probable cause” to Count V which alleged malicious prosecution. At the close of appellant’s case, the court reserved decision on all motions of defendants for directed verdicts but, at the close of all the evidence, it granted Spence’s motion for a directed verdict as to assault and battery (Count I) and as to ¹³² false imprisonment and false arrest (Counts II and III). DiNicolo’s motion for directed verdict as to slander and the motions of all three defendants as to libel (Count IV) were also granted; but Spence’s motion as to slander was denied. The motions of all three defendants with respect to Count V were reserved.

Plaintiff’s motion for directed verdict on all counts was denied. The court, however, ruled that so much of the motion as sought a ruling that DiNicolo was an agent of Sears as a matter of law would be granted in the instructions. The case was submitted to the jury on issues as to Count V only. These were included in a form entitled “verdicts,” prepared by the trial judge, copies of which were given to the foreman and to each member of the jury at the outset of the court’s instructions.

A general verdict, however, was taken by the clerk in open court with the following results: Assault and Battery (Count I): Verdict for DiNicolo and Sears (not submitted on punitive damages) False Imprisonment and False Arrest (Counts II & III combined): $7,500 compensatory damages against DiNicolo and Sears (submitted on both compensatory and punitive damages) Slander (Count IV): $1,000 punitive damages against Spence $6,000 punitive damages against Sears (submitted on punitive damages only) Malicious Prosecution (Count V): $2,000 compensatory damages against Spence and Sears $1,000 punitive damages against Spence $25,000 punitive damages against Sears. Post trial motions for a new trial respecting Counts H and III only, for judgment n.o.v. and in arrest of judgment were filed on behalf of Spence and Sears. The motions for a new trial were denied, as were Spence’s motions for judgment n.o.v. and in arrest of judgment. Sears’ motions for ¹³³ judgment n.o.v. on Count IV, slander, and Count V, malicious prosecution, were granted.

The trial judge, after granting Sears’ motions for judgment n.o.v. with respect to Counts IV and V, was requested to state the reasons for his ruling and did so by letter dated April 3, 1973, wherein he explained as to the slander count: “The Defendant Sears’ Motion for Judgment N.O.V. as to the Fourth Count in the Declaration was granted for the reason that there is no legal basis for holding the employer Sears responsible for slander committed by its employee Spence. The jury, by its verdict holding the employee Spence liable for the slander, found as a fact that Spence had maliciously lied when he testified that he had observed the Plaintiff Newton stealing from the cash register. The jury having so found, it is the Court's opinion that the law does not permit the jury to find that such malicious action is binding upon the employer of the slanderer under the doctrine of respondeat superior. ” (Emphasis added.) As for its action with respect to the malicious prosecution count, the trial court stated: “The Defendant Sears’ Motion for Judgment N.O.V. and Motion in Arrest oí Judgment as to the Fifth Count of the Declaration were granted for the reason that the jury’s answer to the issues relating to this Count precluded vicarious liability on the part of the employer Sears for the acts of the Defendant Spence. The jury’s answer to issues concerning the Fifth Count establish that it found Sears’ principal prosecutor, Mr. DiNicolo, to have acted on probable cause.

Since the Defendant Sears was found by the jury to have probable cause for the institution of prosecution through the actions of Mr. DiNicolo, it is inconsistent for the jury to thereafter find that the Defendant Sears did not ¹³⁴ have probable cause when considering the action of the employee Spence.” (Emphasis added.) Appellant contends there was error in these rulings. He also urges, less forcefully, that the trial court erred in granting Spence’s motion for a directed verdict on the first three counts at the close of all the evidence. 1 We will consider this contention first. II When called upon by a motion for a directed verdict to rule on the legal sufficiency of the evidence to require submission of any issue to the jury, the trial court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made; and if such evidence and inferences 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. Lauer v. Scott, 12 Md. App. 555 , 280 A. 2d 917 (1971).

Viewing the evidence in this light, we find that the contention by appellant that the court erred in refusing to permit the jury to decide whether Spence “aided and abetted” an assault and battery by DiNicolo upon him is without merit. In Duke v. Feldman, 245 Md. 454 , 226 A. 2d 345 (1967), the Court of Appeals said: “A person may be held liable as a principal for assault and battery if he, by any means (words, signs, or motions) encouraged, incited, aided or abetted the act of the direct perpetrator of the tort, [citations omitted] However, a person who was present when an assault or battery was committed is not liable as a participant in the absence of any action on his part amounting to an encouragement of the tortious incident.” ¹³⁵ Nothing in the record supports a fair inference that Spence encouraged an assault or battery upon Newton. Spence informed DiNicolo of what he claimed to have observed, then accompanied DiNicolo and Newton to the security office, walking behind them. This action appellant interprets as “presence to render assistance should it become necessary” — a classical ingredient of aiding and abetting a crime.

No such complicity or covert aid manifested itself in Spence’s conduct. Whatever “tugging” took place between DiNicolo and Newton, there is no reason to believe that when Spence accompanied them to the office he was doing more than presenting himself there to substantiate the impending accusation. We find no error in the directed verdict on Count I. With respect to Counts II and III combined alleging false arrest and false imprisonment, 2 we are confronted with the narrow question whether, by itself, a false report of an alleged misdeed resulting in the detention of an individual subjects the person imparting the information to liability for a consequential arrest and imprisonment. It is general law that a private person does not become liable for false imprisonment (or false arrest) when in good faith he provides information, even mistaken information, to lawful authorities, even though such information may be a principal cause of another’s imprisonment.

This principle is stated in Prosser, Law of Torts (1971) p. 47, in the following terms: “There is no liability for merely giving information to legal authorities, who are left entirely free to use their own judgment, or for identifying the plaintiff as the person wanted, or requesting a proper arrest when an officer makes an improper one instead, or swearing to a complaint before a magistrate who turns out not to have jurisdiction. The remedy in such cases, if any, is by an action for malicious prosecution.” ¹³⁶ On the other hand, it is settled that one who knowingly gives false information to an arresting officer becomes liable when such information is a determining factor in the decision to make an arrest. Prosser, supra, citing Jensen v. Barnett, 178 Neb. 429 , 134 N.W.2d 53 (1965); Wehrman v. Liberty Petroleum Co., Mo. App. 1964, 382 S.W.2d 56 .

See also 1 Harper and James, The Law of Torts (1956), § 4.11, p. 341. In the instant case, as the trial court clearly recognized in its instructions to the jury, there was evidence, contradicted, to be sure, which supported an inference that Spence was guilty of deliberate falsehood in reporting that he had seen appellant withdraw cash from the register and place it in his pocket. Accordingly the question of Spence’s involvement in the alleged false imprisonment should have been submitted to the jury for its determination, and the court’s failure to do so, we hold, was error. However, this does not constitute reversible error under the circumstances of this case.

The jury, after all, returned a verdict for false arrest and false imprisonment of compensatory damages in the sum of $7500 against Sears and DiNicolo. Had the issue of Spence’s liability vel non been submitted to the jury, it is possible, of course, that Spence could have been found liable. He would then have been included in the verdict, becoming a joint tortfeasor with Sears and DiNicolo. There can, however, be no suggestion of prejudice to appellant.

The satisfaction of his judgment is scarcely in jeopardy. Ill Since the principal thrust of this appeal is that the trial court erred in granting Sears’ motions for judgment n.o.v. on Counts IV and V charging slander and malicious prosecution, the essential question we face is whether the court should have granted Sears’ motions for a directed verdict on those counts at the close of all the evidence. This is so because the trial court is governed by the same considerations in determining a motion for judgment n.o.v. as in determining a motion for a directed verdict. Burnes v. Goynes, 15 Md. App. 293 , 290 A. 2d 165 (1972).

As former ¹³⁷ Chief Judge Bruñe of the Court of Appeals said in Smith v. Bernfeld, 226 Md. 400 , 174 A. 2d 53 (1961): “The general rule by which the sufficiency of the evidence is to be tested when this Court is reviewing a motion for a directed verdict or judgment n.o.v. for the defendant is well established as being that this Court must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs right to recover — that is, the evidence must be viewed in the light most favorable to the plaintiff.” This is true although such evidence and inferences are contradicted in every particular by the opposing evidence. Baliles v. Bryant, 207 Md. 332 , 114 A. 2d 601 (1955). “ ‘If there is any competent evidence, however slight, leading to support the plaintiff’s right to recover, the case should be submitted to the jury,’ and a motion for judgment n.o.v. denied.” Miller v. Michalek, 13 Md. App. 16 , 281 A. 2d 117 (1971), quoting Belleson v. Klohr, 257 Md. 642, 646 . Turning to Count IV, then, we observe first that no error is claimed in the granting of a directed verdict on behalf of the appellee DiNicolo. It is similarly conceded by the appellees that the utterance made by Spence constituted slander per se and thus required no showing of special damages.

This determination was made by the court as a matter of law and is unexceptionable. American Stores Co. v. Byrd, 229 Md. 5 , 181 A. 2d 333 (1962). 3 Given the character of the utterance as slander per se, the issue boils down to the correctness of Sears’ contention that it was not, as a matter of law, responsible for the slanderous statement of its employee Spence. As a rule the question of ¹³⁸ agency vel non is properly reserved for determination by the jury. In Lewis v. Accelerated Transport-Pony Express, Inc., 219 Md. 252 , 148 A. 2d 783 (1958), where it was conceded that a corporate officer had uttered a statement slanderous per se, Judge Prescott, later Chief Judge, quoted the rule applicable in North Carolina and characterized by him as “the law generally,” as follows: “An act is within the scope of the servant’s employment where necessary to accomplish the purpose of his employment and intended for that purpose, although in excess of the powers actually conferred upon the servant by the master.

That the act was committed while the servant was on duty performing the functions of his employment and it was committed for the purpose of