Nash v. Sears, Roebuck & Co.

163 N.W.2d 471, 12 Mich. App. 553

• Court: Michigan Court of Appeals
• Decided: February 11, 1969
• Docket: Docket 1,183
• Status: Published

Opinions

Lesinski, C. J.

Defendant Sears, Roebuck & Company appeals from a judgment totaling $17,250 on a verdict entered below for plaintiffs, Mary Lee Nash and Dan Nash. Sears seeks a reversal and remand for new trial, or, in the alternative, a setting aside of the judgment of “no cause” against it on its cross-claim against codefendant Heidt’s Protective Service, Inc., for entry of judgment against the latter, or a new trial on its cross-claim. The relief sought by defendant Heidt’s Protective Service, Inc., is a reversal of the judgment below in favor of the plaintiff and an affirmance of the judgment of “no cause” in its favor on the above-mentioned cross-claim.¹

The plaintiff brought action against Sears, Heidt’s and Arthur Keolian for false arrest, false imprisonment, and assault and battery committed by Keolian who was an employee of Heidt’s with whom Sears had contracted to furnish guard service at its store located at 8000 Gratiot at Van Dyke in Detroit. An amendment to plaintiff’s complaint added a further count of negligence against the two corporate defendants based on the employment of Keolian² as a guard.

The incident which gave rise to plaintiff’s cause of action took place on September 4, 1962, when Keolian, in guard uniform, apprehended the plaintiff, a departing Sears’ customer, on the sidewalk adjacent to the store. Pie noticed she had loose merchandise and demanded to see receipts. Plaintiff was able to produce only one. Keolian tried to get her back to the store; however, she refused to go and struck Keolian with her umbrella and started to walk away. Keolian then shoved her to the ground, straddled her body and pinned her arms above her head. They remained in this position until a crowd gathered and the police arrived. A subsequent examination of plaintiff’s possessions by the police revealed that the shoplifting charge was without foundation.

According to Keolian’s testimony, he was summoned to the lingerie department in response to a bell call in the store. A saleslady told him that a woman had taken some merchandise, stuffed it into a shopping bag, and left the store. Keolian stated that when he was unable to find the suspected party on the basis of the sparse description of her attire given to him initially, he returned to get his informant, and that the saleslady accompanied him to the door and pointed the plaintiff out to him.³

The plaintiff alleged and proved physical injuries' and expenses, as well as accompanying humiliation, pain and suffering resulting therefrom, none of which are at issue here.

The testimony showed that Sears and Heidt’s, through their agents, had entered into an oral contract in 1957 whereby Heidt’s was to furnish guards on a part-time basis to the Sears store at Gratiot and Van Dyke. Sears paid Heidt’s for this service at the rate of $2 per hour per guard supplied. Heidt paid the guards.

The first issue raised by Sears alleged that the court erred in directing a verdict against Sears on the counts of assault and battery and false arrest. The court determined that as a matter of law, there was an assault and battery and false arrest for which Sears was liable as a matter of general policy, because there is a nondelegable duty owed by any such business to the public. Sears does not contend that there was not, as a matter of law, an assault and battery and a false arrest,⁴ but rather argues that it was not liable therefor.

Sears’ argument is that Heidt’s was an independent contractor, for whose torts Sears, as employer, should not be held liable. On this point Sears cites two venerable Michigan eases, De Forrest v. Wright (1852), 2 Mich 368, and Riedel v. Moran, Fitzsimons Company, Limited (1894), 103 Mich 262. Both cases are factually distinguishable, in that in both DeForrest and Riedel the acts for which the plaintiff sought to hold the defendant liable sounded in negligence. The instant case involves, as to the counts here under discussion, intentional torts. Therefore, we are not required to consider the authorities cited as controlling.

Sears’ principal argument on this issue, however, is that the exception to the employer’s nonliability is found where the work delegated is intrinsically or inherently dangerous. Although this exception is well settled in Michigan law, it is not the exclusive exception as Sears would imply. We refer to the very title of section 35 in 13 Callaghan’s Michigan Civil Jurisprudence under the topic Independent Contractors, which is “Exceptions to the rule of non-liability,” and to the variety of cases cited in sections 35 through 42 of 13 Michigan Civil Jurisprudence, supra. The case on which Sears places heavy reliance in its argument is Cary v. Thomas (1956), 345 Mich 616. The Cary Case dealt with liability for the negligent act of the independent contractor in an allegedly inherently dangerous activity; since the trial court here did not direct a verdict on the theory of an “inherently dangerous” activity, but rather on the basis of public policy, and since the activity giving rise to liability here was not negligeixce but rather the ixxflictioxx of ixxjury through the commissioxx of intexxtional tort, the law in Cary is inapplicable.

Most important, however, is the line of authority cited by the plaintiff from the axxnotation in 92 ALR 2d 15, “Principal’s liability for false arrest or imprisonment caused by agent or servant” wherein it is stated at p 61:

“Generally the defendant has beexx held liable for a false arrest caused by such an agent [i.e., one under contract to defendant] where the contractual services to be performed by the agency consisted of the protection of the defendant’s property from theft or embezzlement by its customers or employees. In some of these cases, it has beexx expressly held or stated that defendant could not escape liability on the ground that the false arrest had been caused by an employee of a mere independent contractor.”

In the absence of Michigan case law on the question of whether or not this fact situation presents a nondelegable duty, we coxxsider the authority cited from out-of-state and find it valid.

The responsibility owed the public by storekeepers to keep invitees safe from attacks such as was suffered by the plaintiff here cannot be delegated by axx invitor so as to free the invitor froxn liability when its contractor, through its agent, commits a •wrongful act. The language ixi one of the cases in the above-cited axxnotation is particularly apt. These words, from Adams v. F. W. Woolworth Co. (1932), 144 Misc 27 (257 NY Supp 776, 782), have beexx frequently cited:

“This is not the case of a eoxxtraetor doing his work negligently. Where negligence is the sole basis of the liability, the doctrine of respondeat superior has been held inapplicable to independent contracts. Negligence does not enter into the tort of false arrest. * * * Immunity from vicarious liability -would permit any store keeper to subject his customers to the hazards of an irresponsible detective agency without peril to himself. * * * The opportunities for gross injustice afforded by such a doctrine are too manifest to permit its incorporation into the jurisprudence of our state, without compelling reason.”

Thus the first issue raised by Sears must be determined in the plaintiff’s favor.

Next we discuss the issue raised by defendant Heidt’s relative to the court’s determination that the intentional torts were proved as a matter of law. Heidt’s alleges that there was conflicting evidence as to the false arrest, and that therefore a jury question was presented. It notes that under the shoplifting statute,⁵ 6 any larceny is a felony. On this point, Heidt’s is correct. Heidt’s then states that a private citizen may arrest without a warrant where the person arrested has in fact committed a felony even though it was not committed in his presence.⁶ Again, Heidt’s is correct. However, Heidt’s employs these rules of law to reach a conclusion which is fallacious. Heidt’s says that since there was unobjected-to hearsay evidence to the effect that the saleslady said some merchandise was taken, this evidence of a felony should have gone to the jury, because if believed by the jury, there would have been no false arrest. Heidt’s misinterprets the admission of the evidence here discussed. The evidence was not admitted as hearsay — to prove the truth of the matter asserted — but rather to prove the fact of an assertion — that the saleslady said something relevant to the cause at issue. There was no testimony that a theft had been committed— no evidence therefore of a felony, and the trial court correctly found that there was a false arrest — an arrest without legal authority. There was, according to the undisputed evidence, an assault and battery. The trial court committed no error in so finding and charging. Heidt’s assignment of error as to this issue is without merit.

Sears additionally contends that the court erred in refusing to direct a verdict for Sears on its cross-claim. Sears says, in effect: ~We had an oral contract with Heidt’s, one of the provisions of which was that no guards furnished by the latter were to make apprehensions unless they witnessed the transaction themselves; the existence of this provision is not in dispute; and this contractual agreement was breached. Sears then says Heidt’s did not properly instruct its servant in the method of performance and that the court erred in not holding Heidt’s liable to Sears for injuries caused a third person through its negligence in this regard. Sears states that the court found Heidt’s negligent as a matter of law and liable to the plaintiffs for failure to properly instruct its employees, but refused to apply the same rule as to Heidt’s liability to Sears. It is Sears’ contention that Heidt’s was liable on either a contract or negligence theory. It further urges that if the court had determined that Sears was liable on a “loaned employee” theory, which it did not, then Sears, whose liability was predicated on passive negligence, would be entitled to indemnification from Heidt’s — the actively negligent party. Sears’ theory, as summarized above, raises several issues.

Sears says that the trial court determined that Heidt’s was negligent as a matter of law as to Mrs. Nash, and erred in failing to hold Heidt’s negligent ■ — and hence liable — to Sears as well. The trial judge, in refusing to grant motions for a new trial or judgment notwithstanding the verdict some two months later, erroneously stated that he had determined that it was negligence as a matter of law for a private detective agency to employ uniformed guards and send them out without instructions. He was speaking, at that time, from his recollection of the instructions previously given. A rereading of the instructions shows that what the trial court said was that if the jury found that Keolian was a loaned employee — which question was correctly sent to the jury on proper instruction — then it might next decide that Heidt’s was negligent in the selection and training of Keolian. Sears cannot gain reversal on this allegation.

Sears’ other contention in the negligence area is that it was entitled to indemnity on the active-passive negligence theory as it was held liable without fault. We agree that the law is well settled that where one is held liable without fault, he is entitled to indemnity from the actively negligent party. And, we agree with Sears that active negligence on Sears’ part cannot be based on the conduct of the Sears saleslady as this did not constitute participation in the arrest under Michigan law. See Simpson v. Burton (1950), 328 Mich 557; and Howard v. Burton (1953), 338 Mich 178. Sears was not held liable for the “active negligence” of Heidt’s, but rather for the breach of a nondelegable duty to protect its invitees from an intentional tort by one held to have been acting for Sears at the time of the incident. Because of the manner in which the matter was submitted to the jury, we cannot now determine if Heidt’s was held liable on the basis of liability without fault on the same theory as Sears, except as the provider of the service, or on the basis of negligence in the selection and training of the employee who caused the injury.

Sears’ other contention involved in this issue deals with the contractual relationship between Sears and Heidt’s. The court explained that the contract was oral and the jury had to determine if one of the things agreed to was that the guard sent must he qualified, and if so, if that agreement was breached. Then the court explained that the other aspect of this contract to be determined is the “no arrest agreement.” The court said, “the question is whether at the time the original contract or agreement was made between Mr. Heidt and Sears there was an understanding between them that this would not be done and if it was done it would be a breach or violation of the contract.”

The testimony revealed that the parties to the contract discussed the fact that guards were not to apprehend for shoplifting if they did not see the transaction. However, it was never made clear by any witness that instructions to the guards relative to “no arrest” were a contractual provision. The issue of the existence of the contract and its specific terms was properly left in the province of the jury. We find no reversible error in the court’s instructions on this point and we will not disturb the findings of the jury which inferentially must have found that the “no arrest” agreement was not part of the contract for services.

Sears’ final issue on appeal asserts error in the court’s failure to give an instruction requested by Sears to the effect that Heidt’s had a duty of due care in selecting, training and instructing the guards it sent to Sears.

Sears’ proposed instruction relative to this point was properly rejected by the court. It reads in part:

“If you find that Heidt’s did not use due care and that this was the proximate cause of the incident with Mrs. Nash, then you may require Heidt’s to reimburse Sears.”

Heidt’s responsibility, if any, to Sears could only be founded on contract. The issue, consequently, was whether the kind of guard contracted for was provided. The instruction requested by Sears based on tort and the matter of proximate cause has no bearing on the breach or nonbreach of the contract.

We find that the question of the court allowing the jury to consider the amount paid to Heidt’s by Sears for the service rendered as a factor in determining the qualifications of the guard contracted for was not properly preserved at trial, nor was the issue properly raised on appeal. While it may be true the trial court offered counsel a blanket exception to the charge, it was not accepted nor would it have been proper had it been so accepted.

For the reasons above stated in discussing Sears’ appeal, there is no need for us to lengthen this opinion unduly by a discourse involving the merits of Heidt’s cross-claim against Sears, nor its appeal. It suffices to add that Heidt’s theory of the case was sufficiently presented to the jury and that the trial court properly rejected Heidt’s requests to charge which were denied.

Affirmed. Costs to appellee.

Burns, J., concurred with Lesinski, C. J.

1 Por convenience, defendant Sears, Roebuck & Company, will hereinafter be referred to as Sears; defendant Heidt’s Protective Service, Inc., will be referred to as Heidt’s, and the plaintiffs, Mary Lee Nash and Dan Nash will be referred to in the singular as the plaintiff — meaning Mrs. Nash. It was she who sustained 1ho injuries complained of for which relief was granted below in the amount of $16,250. The damages sought by Mr. Nash for medical expenses and loss of consortium, which the jury valued at $1,000, were dependent upon the verdict and judgment favorable to her.

2 Arthur Keolian, the third defendant named in this cause, was served with summons and complaint. He filed no appearance. The resulting default was explained to the jury by the court in his instructions. Koolian testified at the trial. He was called by Heidt’s for cross-examination as an adverse party under the statute, and further eross-examined by the other parties -to the litigation.

3 The saleslady, whose identity was known to all parties, was not called as a witness below.

4 This contention is one of Heidt’s issues, and will be developed infra.

5 CL 1948, § 750.360 (Stat Ann 1954 Bov § 28.592).

6 CL 1948, § 764.16 (Stat Ann 1954 Bev § 28.875).