
    Cheryl FAURIA v. John DOE, Employer of/and Schwegmann Giant Supermarkets, Inc. and XYZ Insurance Company.
    No. CA 2878.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 1985.
    Rehearings Denied Feb. 26, 1986.
    Writ Denied May 12, 1986.
    Paul S. Weidenfeld, Steven Lemoine, New Orleans, for plaintiff-appellee.
    Richard S. Vale, Blue, Williams & Buckley, Metairie, for Schwegmann Giant Supermarkets, Inc.
    Before REDMANN, C.J., and SCHOTT, GARRISON, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal by defendant Schweg-mann Giant Supermarkets [“Schweg-mann”] from a jury verdict awarding plaintiff Cheryl Fauria $50,000.00 in damages. FACTS:

Plaintiff Fauria was shopping in one of defendant’s stores with her boyfriend. She was six months pregnant at the time. While shopping, she picked up a spray can of “Static Guard,” a product designed to eliminate static cling from clothing. She sprayed some of the product on her pants’ leg, and then placed the can in her shopping cart. She later decided that she did not want to buy the product and instructed her boyfriend to put it back on a shelf. While plaintiff was waiting in the check-out line, a security guard employed by defendant approached her. He had with him the can of Static Guard with which plaintiff had sprayed her pants and demanded that she buy the can or else be charged with theft. She refused to purchase the item. She was given at least one other opportunity to purchase the Static Guard, but refused once more. Plaintiff was then placed under arrest by the St. Bernard Parish Sheriff’s Department. She was handcuffed and taken to the police station, where she was booked with theft. Approximately thirty minutes later her boyfriend made bail for her. She had not been placed in a cell.

Later that evening, her water broke, and she subsequently went into premature labor. Twins were born, but died as a result of their premature birth. Both of plaintiff’s previous children had been born prematurely, and she had been advised several weeks before of a potential problem with this pregnancy.

Plaintiff filed suit against defendant alleging that the twins’ deaths were a re-suit of premature labor brought on by the emotional stress inflicted upon her by defendant. After a trial by jury, plaintiff was awarded $50,000.00 in damages. It is from this verdict that defendant now appeals alleging that the trial court was in error in: (1) failing to allow a proper voir dire of the jury; (2) failing to dismiss certain jurors for cause; (3) conducting the trial in - such a manner that the jury was unduly prejudiced; and (4) failing to grant a new trial or remittitur. Because we find that the evidence presented at trial clearly shows that plaintiff failed to carry her burden of proving that defendant was negligent, we must reverse.

La.R.S. 14:67 provides in pertinent part: “Theft is the misappropriation or taking of anything of value which belongs to another, either without consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. Any intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”

When plaintiff sprayed the Static Guard she obligated herself to pay for it. It did not matter whether she sprayed for a few seconds or used the entire can; she had used something belonging to defendant and unless she paid for it, a theft had occurred. Based upon his observations, defendant’s security guard acted in a manner consistent with both the interests of his employer and of plaintiff; he offered her a choice: she could purchase the can (for $1.07) or be charged with theft. She was given this opportunity to exculpate herself at least twice. We note that legally the guard was under no obligation to allow plaintiff this option. See La.C.Cr.Pr. art. 215.

There is no evidence in the record that defendant’s employees mistreated plaintiff in any way whatsoever. The treatment accorded to plaintiff by the defendant certainly met any standard of care that would be owed by a merchant to a pregnant woman suspected of theft. Plaintiff and her boyfriend testified that she was not abused, shoved, or jostled. Tr. at pp. 22 and 57. Furthermore, there is no evidence that plaintiff informed the guard of any problems that she might have had with the pregnancy.

We are aware that a jury’s findings should not be disturbed absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); see also Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In this case, however, plaintiff failed to introduce any evidence of negligence on the part of defendant or its employees. All of the evidence presented at trial indicated that defendant’s employees acted reasonably under the circumstances.

For the foregoing reasons, the decision of the trial court is reversed.

REVERSED.

REDMANN, C.J., and WARD, J., concur with reasons.

SCHOTT and GARRISON, JJ., dissent with reasons.

REDMANN, Chief Judge,

concurring.

A supermarket customer does not have the right to test its goods (fruit, candy, or matter in spray cans) by consuming them. Defendant therefore did not owe a duty to plaintiff not to have her arrested for theft upon her refusal to pay for the goods that she admittedly (partially) consumed. Although the deputy sheriffs treatment of the pregnant plaintiff may have been unreasonable, it was not a breach of duty by defendant to have called the sheriffs office to ask for her arrest.

WARD, Judge,

concurring.

I concur with the majority’s reversal of the Trial Court judgment, agreeing with Judge Redmann’s observation that if there was indeed unreasonable conduct, it was on the part of the sheriffs department and constituted an effective superseding cause.

Additionally, I believe the dissenting opinions’ reliance on the rule of Canter v. Koehring is unwarranted. The record shows that Judge Ortique did not allow contemporaneous objections to his eviden-tiary rulings, but rather required counsel to present all objections after the close of the evidence. Furthermore, the defense was prevented by in camera rulings from presenting or proffering evidence relevant to its case. To my mind, such procedures result in a trial record and a jury verdict which deserve little deference.

SCHOTT, Judge,

dissenting.

In the final paragraph of the majority opinion my colleagues find that defendant’s employees acted reasonably under the circumstances so that the jury’s finding to the contrary was clearly wrong. The question of what is reasonable conduct under the circumstances elicits a subjective response. I may be convinced that it was reasonable for the security personnel to cause this pregnant woman to be taken to jail bea-cause she had sprayed a minimal amount of Scotchguard on her clothing and then refused to pay $1.07 for the can; but I cannot conclude that someone else who finds such conduct to be an unreasonable reaction has clearly erred. The members of this jury were of the opinion that the defendant’s conduct was unreasonable; I may disagree with this opinion but nontheless .respect it. I would affirm the judgment.

GARRISON, Judge,

dissenting.

I dissent.

This court may not substitute its own credibility determinations for that of the trier of fact. In Canter v. Koehring Co., 283 So.2d 716, 724 (La., 1973), the Supreme Court stated:

“Preliminarily, however, we address ourselves to an error of appellate review of fact exhibited by the majority opinion: When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact: where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reasons for- this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. See: Andrews v. Williams, 281 So.2d 120 (La.Sup.Ct.1973); Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964); Schlesinger v. Fontenot, 235 La. 47, 102 So.2d 488 (1958); Holmes Co. v. Foret, 229 La. 360, 86 So.2d 66 (1956); Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367 (1953); Rhodes v. Sinclair, 195 La. 842, 197 So. 575 (1940); and many other decisions cited at West’s Louisiana Digest “Appeal and Error”, Nos. 1008 and 1011. See also: Robertson, Appellate Review of Facts in Louisiana, 21 La.L.Rev. 402 (1961).
Our review of the record convinces us that our intermediate brethren erred in failing to apply in the instant case this principle of appellate review of facts.” (emphasis added).

The rule of Canter, was further explained in Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978) wherein the Supreme Court stated:

“As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that “even though the appellate court may feel that its own evaluations and inferences are as reasonable,” it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: ‘When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” 283 So.2d 716, 724.
We did not foresee that this explanation would be misunderstood to mean, that: “There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for this finding." We said the appellate court should not disturb this factual finding in the absence of manifest error. The difference is important. ‘Manifestly erroneous, in its simplest terms means ‘clearly wrong.’ We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” (At 1333)(emphasis added).

In the instant appeal, the majority is attempting to substitute its own credibility determination where there is a conflict of testimony, for that of the trier of fact, namely the jury and presumably the trial judge who did not take steps to change the jury verdict.

Dr. Cherrie testified that the emotional stress of the incident aggravated plaintiff’s pre-existing tendency to premature labor; Dr. Ward testified that it did not. The jury obviously believed Dr. Cherrie’s testimony over Dr. Ward’s testimony. It would be an abuse of power for this court to substitute its own judgment for that of the jury on this credibility call.

The majority has written a very good criminal law opinion. That matter, however, is another proceeding, namely, “State v. Cheryl Fauria # 57225 34th Judicial District Court” which proceeding is not before this court. There is no evidence that plaintiff was convicted and this court cannot act as the St. Bernard trial court by virtue of this appeal. This is a civil case.

For the reasons discussed, I would uphold the jury verdict and the trial court judge and affirm the judgment below.  