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November 30, 1994


Appeal from the Circuit Court of St. Clair County. No. 89-L-228. Honorable Milton S. Wharton, Judge, presiding.

Presiding Justice Lewis delivered the opinion of the court: Welch and Rarick, JJ., concur.

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Defendant, Dillards Department Stores, Inc., appeals from a jury verdict in favor of plaintiff, Una Harrel. The jury awarded plaintiff $40,000 in compensatory damages and $40,000 in punitive damages on her claims of common law defamation and a new tort theory of compelled self-defamation. The factual basis of plaintiff's claim is that defendant's assistant store manager fired her after accusing her in front of her supervisor of attempting to steal merchandise from the store at which she was employed.

Defendant presents four issues for our review: (1) whether the trial court erred in finding as a matter of law that plaintiff had proved common law defamation against defendant; (2) whether the trial court erred as a matter of law in adopting the theory of compelled self-defamation; (3) whether the trial court erred as a matter of law in allowing the jury to consider the issue of punitive damages under the theory of compelled self-defamation; and (4) whether the trial court erred by giving the jury improper instructions and verdict forms. We reverse on issues (1) and (2).

The facts of the case, for the most part, were not disputed. However, because defendant asks us to reverse the jury verdict and the trial court's denial of its posttrial motion, we must view the facts in the light most favorable to plaintiff. After viewing all of the evidence in the light most favorable to plaintiff, we conclude that the facts so overwhelmingly favor defendant that the verdict cannotstand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Plaintiff was employed by defendant as a part-time retail salesperson in its Fairview Heights store from 1980 until her termination on September 26, 1988. Defendant had no employment contract with plaintiff that prevented defendant from discharging plaintiff at will. The events that led to the termination of plaintiff's employment occurred between August 29, 1988, and September 26, 1988.

Plaintiff was cross-examined about a prior incident that had occurred in March 1988, when plaintiff had placed seven items of women's apparel in a bag "in the hold behind where people also hide sometimes for a hold for people." She testified that a coworker, Carol Neilson, found the bag containing the seven items.

Hillarie Hutson, plaintiff's immediate supervisor, testified that she found the seven items when she was cleaning out the stock room and that she took the items to the store's security office because the items did not have any name or receipt on them, they were in a suspicious place, not in the area designated for holds, and they were hidden behind other items so that she would not have seen them if she had not moved the other items during cleaning.

Hutson talked to plaintiff about this incident, but she did not accuse plaintiff of attempting to steal the garments because plaintiff explained that she had placed the garments in the stock room for a customer. Hutson warned plaintiff verbally that she had not followed the proper procedure for placing merchandise on hold and that what plaintiff had done "certainly looked suspicious in that that was not proper behavior." A store security officer wrote a report about this incident, which report was made a part of plaintiff's employee file.

On August 29, 1988, plaintiff and a coworker, Pat Isaak, picked out six items of winter clothing for plaintiff. Plaintiff put the six items on hold for herself under a fictitious name. Plaintiff and Isaak both knew that store rules prohibited them from holding items for themselves this way, but employees customarily held items in this manner anyway. A couple of days later, Isaak called plaintiff at home to see if she still wanted to purchase the six items. Plaintiff told Isaak that she wanted to purchase four of the items but wanted the remaining two items to remain on hold. Isaak rang up plaintiff's purchase and charged them to plaintiff's credit account. Isaak placed the four items in a clear, plastic bag, stapled the receipt to the bag, tied the bag at the bottom, and placed the bag in the stock room. Isaak left the remaining two items, two Pendleton skirts, hanging at the wrap desk.

Plaintiff worked a total of eight days between August 31, 1988, and September 10, 1988. Plaintiff was on vacation from September 10, 1988, until September 21, 1988. During the eight days that plaintiff worked before her vacation and after her purchase, she forgot about her purchase and left it at the store. On September 13, plaintiff came to the store and removed the receipt from the bag in order to participate in a promotional event at the mall, "bonus bucks," in which mall customers enter contests with receipts of prior purchases. Plaintiff testified that she intended to take her purchase home with her that day but again forgot it.

On September 21, 1988, while plaintiff was still on vacation, Carol Neilson discovered a bag in the stock room containing six items of women's clothing, but with no receipt on it. This information was related to Hutson, who ordered the items placed back on the floor for sale. After the items were placed back on the floor, Isaak was told what happened. Isaak eventually realized that the items in the bag were the same items she had sold to plaintiff on August 31, 1988. Isaak told Hutson that four of the items had been sold to plaintiff. Isaak retrieved the four items from the sale floor and called plaintiff to let her know what had happened. Isaak had never seen more than four items in the bag and had no knowledge about how or whether two additional items entered the bag. Plaintiff testified that when Isaak called her on September 21, Isaak told plaintiff that there were six items in the bag. Plaintiff testified that she told Isaak to hold onto the bag so that she (the plaintiff) could come into the store with the police, who could fingerprint her and determine that she had never touched the bag (plaintiff apparently forgot about previously removing the receipt from the bag).

Plaintiff next worked on September 22, at which time she told Hutson that she had the receipt for the four items and that she did not know anything about the additional two items. According to plaintiff, Hutson told her that she did not think there were more than four items in the bag. Nothing further was said to plaintiff that day or during her shift on September 23, 1988. However, Hutson apparently notified security.

Plaintiff next worked on September 24, 1988. After lunch on that day, a security person talked to plaintiff, after which plaintiff went to her work area and told her coworker that she was going off the floor to talk to John Arble, the store manager, "because [she] was being accused of wanting to steal." The details of plaintiff's conversation with Arble were not related because he was deceased at the time of the trial. After the meeting with Arble, plaintiff went back to work.

Later that day, plaintiff met with Arble and Thomas Kirby, theassistant store manager. Plaintiff was told that there was a problem with her wanting to take two skirts that she had not purchased. Plaintiff testified that she denied attempting to steal anything. Plaintiff also told Arble and Kirby that she did not want to get Isaak in trouble. Plaintiff offered to resign and told Kirby that he could fire her for violating the rule regarding holding clothes, but that she did not intend to steal anything. After the conversation with Arble and Kirby, plaintiff was suspended and told not to come back to work until September 26, ...

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