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
I

/