Johnson v. Supersave Markets, Inc.

No. 83-202

IN THE SUPREME COURT OF THE STATE OF MONTANA

1984

GREG C. JOHNSON,

Plaintiff and Respondent,

SUPERSAVE MARKETS, INC. ,

a Montana Corp. ,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Garlington, Lohn & Robinson; Paul C. Meismer argued,

and Gary L. Graham argued, Missoula, Montana

For Respondent :

Ellingson, Lovitt & Moe; Nancy K. Moe argued, Missoula,

Montana

Submitted: June 5, 1984

Decided: August 13, 1934

Clerk

Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of

the Court.

Super Save appeals from a judgment entered on February

9, 1983 by the District Court of the Fourth Judicial District

awarding Johnson $17,000 in damages.

Respondent filed an action on December 14, 1981 seeking

damages for intentional unlawful arrest or imprisonment or,

in the alternative, for money damages resulting from

appellant's negligence in causing an arrest and imprisonment.

A jury trial was commenced on all issues on January 24,

1983. At the close of respondent's case-in-chief, the trial

court granted appellant's motion dismissing the count for

intentional tort and the prayer for punitive damages. On the

negligence issue the jury decided liability in respondent's

favor and awarded $17,000 in damages, subject to a fifteen

percent reduction for comparative negligence.

Appellant filed timely consolidated post-trial motions:

motion for judgment notwithstanding the verdict, motion for

entry of an amended judgment, motion for a new trial.

Appellant's motions were denied. This appeal followed.

Respondent cross-appealed. The cross-appeal requests

the jury verdict and judgment of the district court judge be

affirmed, the directed verdict on punitive damages be

overruled and the case remanded on the issue of punitive

damages only.

On January 2, 1979 respondent's wife, Rosemary Johnson,

issued a check on respondent's account made payable to Super

Save in the amount of $35.99. Rosemary Johnson signed the

respondent's name without his knowledge. Using Rosemary's

driver's license number as identification, Super Save's

employee cashed the check. Upon presentment, the draft was

returned to Super Save for insufficient funds. This check is

the basis of the complaint filed against appellant.

Respondent had no established check-cashing policy with

Super Save granting Rosemary permission to sign his signature

for check cashing purposes. Respondent testified that on

previous occasions his wife had signed his signature on his

account but only in his presence. Occasionally respondent

issued and signed a check in blank for Rosemary to cash at

local businesses. Respondent testified that on January 2,

1979 he did not authorize his wife to sign his signature on

any draft from his checking account.

In January, 1979 Marcia Gaustad, the Super Save employee

charged with collection of bad checks, sent two demand

letters to respondent requesting that he honor the subject

check. Respondent's mother assured Ms. Gaustad that payment

would be made before February 10, 1979. Respondent did not

make restitution in February or March.

Upon respondent's failure to make the check good, Super

Save sent the account to a collection agency, Data Check.

Data Check wrote at least one demand letter to respondent by

certified mail which was accepted by respondent's wife. No

payment resulted through these collection efforts.

Between March 8 and 29, 1979, Data Check assigned

respondent's delinquent account to the Missoula County

Attorney's office for prosecution. The County Attorney

attempted to contact respondent on March 29, without success.

On April 3, 1979 respondent made restitution on the

delinquent draft directly to Super Save. He received a

receipt for full payment. After restitution was made, Super

Save's standard business procedure was to apprise the

collection agency (Data Check) of such final payment. Once

Super Save transferred the bad check to Data Check for

collection, the established policy was for Super Save to deal

directly with its agent, Data Check, and not the County

Attorney's office.

Prior to filing a criminal complaint against respondent,

the County Attorney's office attempted to verify restitution

by contacting both Data Check and Super Save. The Super Save

employee was unable to confirm restitution by respondent.

Data Check "absolutely verified that there was no

restitution" on respondent's delinquent account. On June 7,

1979, the County Attorney filed a complaint and obtained a

warrant for respondent's arrest.

On December 16, 1979, respondent was driving his

automobile. He was stopped for suspicion of driving under

the influence of alcohol and arrested when a routine check

disclosed the outstanding warrant,. The arresting officer

instructed him to drive to the city jail where he was

handcuffed, frisked, booked and fingerprinted. Two and

one-half hours expired from the time respondent was arrested

to the time he was able to post bond and be released.

Charges against respondent were dismissed on December 18,

1979, based on restitution he made six months prior to his

arrest. Appellant presents the following issues upon appeal:

1. Whether the jury verdict finding that respondent was

unlawfully arrested is supported by the evidence.

2. Whether Montana recognizes a right of action for

negligence resulting in imprisonment.

3. Whether emotional distress damages are proper in a

negligence action absent a finding of injury.

4. Whether the jury award of damages is cumulative.

The determinative issue is not unlawful arrest but

negligence. Negligence was properly pled in the respondent's

complaint and adequate jury instructions were given to

properly submit the issue of negligence. The only necessary

determination is whether the record supports a finding of

negligence.

Appellant owes its patrons the duty to exercise

reasonable care to avoid arrest and criminal cha.rges for

nonpayment of a bad check for which restitution has been

made. The appellant could be found to be negligent for

breach of this duty on two counts: (1) cashing the subject

check without proper identification; and (2) failing to

terminate the collection process once respondent made full

payment on the delinquent draft.

Mr. Edward M. Pope, corporate secretary-treasurer and

chief financial officer, testified about Super Save's

check-cashing policies. Honoring a check made out to Super

Save which is written by someone other than the person

presenting the check for payment required either two forms of

identification or an established check-cashing policy with

the individual party. Cashing the check using her husband's

name, absent an agreement permitting Rosemary to sign,

violated Super Save's check-cashing policies and constituted

evidence of negligence.

Super Save's failure to curtail the collection actions

brought against respondent once he made full payment on the

outstanding check evidences the second act of negligence. It

is undisputed that Data Check was acting as Super Save's

agent. It was incumbent upon Super Save to insure all

collection actions initiated by Data Check, including

assistance from the County Attorney, were discontinued upon

restitution made by respondent. Respondent's arrest six

months post restitution resulted from Super Save's failure to

fulfill this obliga.tion.

We now address appellant's contention that damages for

emotional distress may not be recovered absent a finding of

injury. In Versland v. Caron Transport, (Mont. 1983), 671

P.2d 583, 40 St.Rep. 1681, 1686-87, this Court unequivocably

eliminated the physical injury requirement for recovery of

emotional distress resulting from negligent infliction.

"While physical manifestation of emotional trauma

may be considered by the trier of fact alonq with

other evidence, - -

- physical manifestations will not be

required to support a prima facie - - case for

necrli~ent infliction - emotional distress."

4 2

of

(emphasis added)

While Versland is apposite, it is distinguishable from

the instant case. In Versland there was contemporaneous

observance resulting in shock to the senses.

This Court is aware that recovery for emotional distress

is vulnerable to counterfeit claims. We are correspondingly

reluctant to permit damages for specious emotional upset.

The Supreme Court of Kansas defined "emotional distress"

as follows:

"Emotional distress passes under various names such

as mental suffering, mental anguish, nervous shock,

and includes all highly unpleasant mental

reactions, such as fright, horror, grief, shame,

embarrassment, anger, chagrin, disappointment, and

worry. However, it is only when emotional distress

is extreme that possible liability arises." Roberts

v. Saylor (1981), 230 Kan. 289, 637 P.2d 1175,

1180.

Determination of compensable versus non-compensable

"emotional distress" is inherently problematic and replete

with contradictory legal authority.

"Whether legal protection should extend to the

interest in emotional tranquility has been a

subject of controversy not only in California, but

elsewhere: 'No general agreement has yet been

reached as to the liability for negligence

resulting in fright, shock, or other 'mental

suffering', or its physical consequences." Molien

v. Kaiser Foundation Hospitals (1980), 167 Cal.Rep.

831, 616 P.2d 813, 817.

We recognize that there is a difference between injury

and distress. If plaintiff demonstrates either a psychic or

physical injury causally related to the incident in question

there is compensability. Here we have no testimony

supporting injury. We must decide whether to allow

compensation for mental distress absent injury and, if so,

under what circumstances. We allow recovery for mental

distress damages resulting from shock caused by

contemporaneous observance. Versland, supra. We allow

recovery for grief in a wrongful death setting. Dawson v.

Hill & Hill Truck Lines (Mont. 1983), 671 P.2d 589, 4 0

St.Rep. 1689. Courts genera.11~ allow damages for

embarrassment, humiliation and other mental distress, absent

injury, where defendant's conduct is intentional

outrageous. To deny recovery in this case would focus upon

defendant's culpability which is more properly considered

when addressing the subject of punitive damages.

This Court supports the rationale of the Oregon Court of

Appeals in Meyer v. 4-D Insulation Co., Inc., (1982), 6 0

"Damages for emotional distress are compensatory,

not punitive. Thus, the quality of the conduct is

per se irrelevant, because negligently caused

damage may be as disturbing as that caused by a

defendant intentionally. ...

the relevance of

the quality of the conduct is in its effect on the

victim."

Therefore, whether tortfeasor's conduct is "extreme and

outrageous" is not controlling and fails to provide a useful

measure by which to evaluate compensable "emotional

distress". We agree with the Oregon court's conclusion:

"We do not yet live, however, in an 'eggshell

society' in which every harm to property interests

gives rise to a right of action for mental

distress. ...

'A certain amount of emotional

distress and anxiety is an unavoidable part of

living in our complex society'. Some ...

emotional upset is still left uncompensated.

Extension of the right to recover d.amages for

mental distress in a given case is basically a

policy decision. The Supreme Court's extension of

that right by species of case is consonant with the

reluctance of courts in general to give credence to

mental distress claims absent some indication that

they are real and not feigned." Meyer, 652 P.2d at

857.

This Court adopts the species of case approach which

requires a factual analysis of each case to determine whether

the alleged "emotional distress" merits compensation. In

determining whether the distress is compensable absent a

showing of physical or mental injury, we will look to whether

tortious conduct results in a substantial invasion of a

legally protected interest and causes a significant impact

upon the person of plaintiff.

Applying these principles to the case before this Court,

we conclude that respondent's right to liberty was violated

when he was arrested, handcuffed, frisked, booked and charged

for issuing a bad check, for which he made complete

restitution six months earlier. Respondent's right to

liberty is legally protected from such invasion and his

humiliation, embarrassment and other "emotional distress"

proximately caused by such intrusion can certainly be

considered substantial.

Unable to pay the $500 bond placed upon his release from

the county jail, appellant summoned his divorce attorney for

help and advice. His attorney testified to the devastating

emotional impact the episode of being arrested and jailed had

upon his client. He described appellant's condition as he

found him in jail:

"A. Mr. Johnson was much more agitated than what I

had seen him before in the course of my office

consultations and other meetings that I'd had with

him. He appeared to me to be about on the verge of

tears. He seemed disoriented. Not in the sense

that psychologists or psychiatrists would use that

term but rather in a sense that he didn't

understand why he was there, what had happened that

had led him to be there. He didn't understand the

goings on that were really going on around here.

He kept asking me: 'Why was I arrested? Am I

going to go to prison? What's going to happen to

me?' I would explain the things as I understood

them at that time from what little information I

had, and the same question would come up again.

"I had found in my conversations with Mr. Johnson

even in the stress of the divorce action that he

could understand what I was saying to him and could

frame intelligent responses and intelligent

questions. But in this circumstance, it was sort

of like a record hitting a crack and jumping back.

Get the same question, same question; answer it,

answer it; same questions. That was

uncharacteristic about him. I noticed that he

seemed to be much more animated than he normally

would have been. A lot more hand movement,

expressions, pacing, and nervousness was very

apparent to me. "

This evidence shows a significant impact upon the

plaintiff. Therefore an award of damages is, under these

facts, susta.inable.

Appellant's final issue alleges that the jury award of

damages is "cumulative" resulting in an "excessive" verdict.

The facts relating to this issue are unique. The cause

of action was submitted to the jury on a special verdict

form. The jurors answered the questions and granted a

blanket amount of $17,000 in damages. In an extra display of

diligence, the jurors voluntarily added a handwritten list

enumerating five separate elements of damages accounting for

the total $17,000 figure. On the face of the verdict appears

the following itemized hand-written list: damage to

reputation $3,000; social stigma $5,000; shame and

embarrassment $2,000; mental anguish $2,000; and damages to

self image $5,000.

Appellant contends that cumulative damage awards are not

permitted to stand independently. Additionally, appellant

argues that the award for damage of reputation and social

stigma are not supported by the evidence and therefore must

fail. Appellant states that the only damage item properly

awardable would be damage for mental anguish in the amount of

$2,000.

It is undisputed that the record is void of evidence

supporting damages to respondent's reputation or social

stigma. Testimony reveals that respondent's arrest was never

published in the Missoulian and the appellant did nothing to

publicly disseminate any harm to respondent's reputation,

such as distribute a list of bad check offenders containing

respondent's name. However, absent the volunteer statement,

we would not know damage to reputation and social stigma were

considered as part of the basis for the $17,000. Without the

handwritten list by the jurors, the verdict could not be

successfully challenged.

This Court is reluctant to impeach the validity of the

verdict by jurors' testimony and affidavits. In State Bank

of Townsend v. Maryann's, Inc., (Mont. 1983), 664 P.2d 295,

40 St.Rep. 637, this Court upheld the District Court's

refusal to consider jurors ' affidavits explaining the damage

award, when considering a motion to reduce the damage figure

as excessive. Citing Harry v. Elderkin (Mont. 1981), 637

P.2d 809, we concluded:

"We hold in this case that it would be improper to

consider the juror affidavits to delve into the

thought processes of the jurors in connection with

the completion of the special interrogatories."

State - -of Townsend 664 P.2d at 229.

Bank

Applying this legal principle to the present facts, we

are not compelled to impeach a verdict with considerations of

the jury which are voluntarily offered just as we uniformly

refused to do so when the same information is elicited under

oath through affidavits.

This Court approves of the rationale stated by the

Intermediate Court of Appeals of Hawaii in Vieau v. City and

County of Honolulu, (Hawaii, 1982), 653 P.2d 1161, 1166.

Where a special verdict form contained the instruction that

the jury was to answer questions only under certain

conditions and the trial court adequately instructed the jury

on matters concerning the special verdict form, but the jury

failed to follow such instructions and answered the

questions, the Hawaiian court concluded:

"Under the circumstances, the trial court could

have treated the answer to Question 5 as surplusage

and ignored it."

Perhaps the jury ' s verdict when integrated with the

handwritten list of elements of damages appears "cumulative";

however, there is no question that the jury awarded the sum

of $17,000 in damaqes to compensate respondent for his

"emotional distress". That they compartmentalized this total

figure into elements of damages may not be utilized to

contradict their initial determination. Using Vieau as

precedent, we shall treat the hand written list as surplusage

and accept the verdict as valid.

Respondent's cross-appeal challenging the directed

verdict on punitive damages is denied. Conduct sufficient to

support punitive damaqes in this case would have to meet the

standard of implied malice set forth in Owens v. Parker

Drilling (Mont. 1984), 676 P.2d 162, 41 St.Rep. 66. The

trial court did not feel there was sufficient evidence of

reckless conduct to create a submissible issue for the jury.

We agree.

Af firmed.

W e concur:

Chief J u s t i c e '

Justices

Mr. J u s t i c e John C . Sheehy w i l l f i l e a w r i t t e n o p i n i o n l a t e r .

Mr. Justice L.C. Gulbrandson concurring in part and

dissenting in part.

I concur with the majority opinion denying the

respondent's cross-appeal, but I respectfully dissent from

the affirmance of the judgment.

This case actually involves three checks drawn on the

respondent's account and payable to the appellant, although

the County Attorney's office chose to file a criminal

complaint on only one of said checks. That check had been

returned to appellant by the bank and was marked "account

closed." The transcript reveals that the respondent had in

fact issued "NSF" checks on the same account during 1978 and

that he was aware that his wife consistently signed his name

to checks drawn on his account. The respondent conceded

that the appellant could not have known that the signature

on the check was not his, and even the bank failed to

discover that the signature was forged.

In my view, there w-as probable cause to believe that

the respondent had committed the offense at the time

collection procedures were initiated, and, in fact, previous

counsel for respondent conceded that fact. I would

therefore hold that there was no evidence to support the

jurors' answer of "Yes" to the special verdict question No.

1, "Was the arrest of the Plaintiff and subsequent

confinement in the holding cell unlawful or wrongful?"

The majority finds that two and one half hours expired

from the time of arrest until respondent was released, even

though it was agreed in the pre-trial order that the

appellant was booked in at 6 : 2 0 a.m. and released at 7:15

a.m. I realize that this is an insignificant fact inasmuch

as, under the majority rationale in extending recovery for

emotional distress, a five minute detention would be

s u f f i c i e n t f o r affirmance.

I disagree further with the majority's finding that

t h e c a s h i n g of t h e check i n q u e s t i o n v i o l a t e d Super-save ' s

check c a s h i n g p o l i c i e s . The j u r y d i d n o t s p e c i f i c a l l y make

that finding, and the appellant's witness, Pope, in the

defendant's case-in-chief, t e s t i f i e d t h a t t h e c a s h i n g of t h e

check in question would -

not violate the appellant's

check-cashing p o l i c y .

The m a j o r i t y s t a t e s : " I t was i n c u m b e n t upon S u p e r S a v e

to i n s u r e a l l c o l l e c t i o n a c t i o n s i n i t i a t e d by D a t a C h e c k ,

including assistance from the County Attorney, were

d i s c o n t i n u e d upon r e s t i t u t i o n made by r e s p o n d e n t . " To t h e

e x t e n t t h a t t h a t statement can be i n t e r p r e t e d a s r e q u i r i n g a

merchant to insure that criminal actions be d i s c o n t i n u e d

a f t e r restitution, I disagree.

Q u e s t i o n No. 6, of the special verdict reads as

follows: " Q u e s t i o n no. 6: What is the total amount of

c o m p e n s a t o r y damages t h e P l a i n t i f f suffered. L i s t specific

items of damage and t o t a l t h e damages."

And t h e j u r o r s a n s w e r e d :

"Damage t o r e p u t a t i o n $3,000

Social stigma $5,000

Shame and e m b a r a s s m e n t [ s i c ] $2,000

Mental an- uish

q $2,000

damage t o s e l f image

p l u s Defendant w i l l pay a l l a t t o r n e y f e e s

and c o u r t c o s t s . "

Where t h e j u r o r s 1 a n s w e r s c l e a r l y i n d i c a t e t h a t t h e y

c o n s i d e r e d e l e m e n t s of damages o u t s i d e t h e e v i d e n c e and t h e

i n s t r u c t i o n s o f t h e c o u r t , I would r e v e r s e aria, remand f o r a

,'

,

new t r i a l .

Justice,

i

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