AGO 1979 No. 11 - May 15 1979
SHOPLIFTING ‑- COURTS ‑- CIVIL ACTION FOR DAMAGES UNDER RCW 4.24.230
(1) If gasoline in the pumps is offered and marked for sale by a business, the wrongful act of converting this product is covered by RCW 4.24.230 as a wrongful taking of goods, wares or merchandise displayed or offered for sale.
(2) A cause of action for wrongful conversion may be brought under RCW 4.24.230 even though no "actual damages" are alleged.
(3) Where the amount claimed consists in part or in whole of penalties authorized under RCW 4.24.230 but the claim in its entirety does not exceed $300, a special action for wrongful conversion may be brought in the small claims department of a justice court operating under chapters 3.30 through 3.74 RCW.
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May 15, 1979
Honorable Russ Juckett
Everett, Washington 98201
Cite as: AGO 1979 No. 11
This is written in response to your recent request for our opinion on three questions which we have paraphrased as follows:
(1) If gasoline in the pumps is offered and marked for sale by a business, is the wrongful act of converting this product which otherwise comes within RCW 4.24.230 covered by that statute as a wrongful taking of "goods, wares or merchandise displayed or offered for sale"?
[[Orig. Op. Page 2]]
(2) May a cause of action for wrongful conversion be brought under RCW 4.24.230 even though no "actual damages" are alleged?
(3) Where the amount claimed consists in part or in whole of penalties authorized under RCW 4.24.230 but the claim in its entirety does not exceed $300, may a special action for wrongful conversion be brought in the small claims department of a justice court operating under chapters 3.30 through 3.74 RCW?
We answer all three questions in the affirmative for the reasons set forth in our analysis.
The first subsection of RCW 4.24.2301/ allows a merchant to bring an action for conversion against an adult or emancipated minor who steals merchandise and also allows the merchant to recover his actual damages plus certain specific penalty damages. This segment of the statute reads as follows:
"(1) An adult or emancipated minor who takes possession of any goods, wares or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller, and with the intention of converting such goods, wares or merchandise to his own use without having paid the purchase price thereof shall be liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed one thousand dollars, plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars."
[[Orig. Op. Page 3]]
Subsection (2) of the statute then allows a merchant to bring a similar action for conversion (though grounded in strict or absolute liability) against the custodial parent(s) or guardian(s) of an unemancipated minor who steals merchandise and to recover certain specified penalty damages in that action, as follows:
"(2) The parent or legal guardian having the custody of an unemancipated minor who takes possession of any goods, wares or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment without the consent of the owner or seller and with the intention of converting such goods, wares or merchandise to his own use without having paid the purchase price thereof, shall be liable as a penalty to the owner or seller for the retail value of such goods, wares or merchandise not to exceed five hundred dollars plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars: PROVIDED, That for the purposes of this subsection, liability shall not be imposed upon any governmental entity or private agency which has been assigned responsibility for the minor child pursuant to court order or action of the department of social and health services."
This 1975 legislation was apparently modeled after similar legislation in the states of Alaska, Idaho and Nevada.2/ Since 1975 like legislation has been passed in [[Orig. Op. Page 4]] California, Illinois, North Dakota and Utah.3/ Because of the relative newness of these various enactments, however, those other jurisdictions provide no judicial decisions of any assistance in answering your questions.
In your first question you have, we believe, identified the operative statutory terms. The issue is whether, under RCW 4.24.230, gasoline in the pumps constitutes "goods, wares or merchandise displayed or offered for sale by any wholesale or retail store or other mercantile establishment."
None of the terms of this statute are specially defined. Therefore, the legislature must have intended that those terms be given their common ordinary meanings. Garrison v. State Nursing Board, 87 Wn.2d 195, 550 P.2d 7 (1976). We turn, then, toWebster's New World Dictionary of the American Language (2nd College Edition) which defines the operative terms as follows:
"goods: !tt!il*,21. moveable personal property 2. merchandise; wares. . . ."
"wares: !il*,2[ware] 1. any piece or kind of goods that a store, merchant, peddler, etc. has to sell; also, any skill or service that one seeks to sell: usually used inpl. 2. things, usually of the same general kind, that are for sale; . . ."
"merchandise: !il*,21. things bought and sold; goods; commodities; wares. . . ."
In light of these definitions we conclude that gasoline in the pumps clearly comes within the phrase "goods, wares and merchandise." Moreover, based upon the explicit wording of your question we must assume that any "business" involved would [[Orig. Op. Page 5]] come within the broadly encompassing terms "wholesale or retail store or other mercantile establishment" as those terms are commonly understood. The only question, then, is whether the gasoline can be deemed to be "displayed or offered for sale" within the meaning of the statute.
Webster's New World Dictionary of the American Language (2nd College Edition) defines these terms as follows:
"display: !tt!il*,21. To unfold; spread out unfurl 2. to unfold to the eye; put or spread out so as to be seen; exhibit 3. to unfold to the mind; disclose; reveal. . . ."
"offer: !il*,2. . . 2. to present for approval or acceptance; proffer; tender [tooffer one's services] . . . 6. a) to present for sale b) to bid (a price, etc.). . . ."
We believe that gasoline in the tanks is covered by the statute. It is true that one might by tortuous route argue that gasoline sitting in holding tanks under the ground is not, in the ostentatious sense of the terms, being "displayed" or "offered" for sale. We think, however, that the better conclusion is that the legislature intended by the disjunctive use of both terms to cover all sale items, regardless of whether they are sold in a solid, liquid or gaseous state and regardless of any packaging incident thereto. Surely, the fact that some apples at the bottom of the produce bin are underneath those on the top does not exclude them from the law simply because they are not as openly displayed. Similarly, the fact that the gasoline in the pump cannot be seen by the prospective buyer should not exclude it from the coverage of that same law. We therefore answer question (1) in the affirmative.
Your second question, in essence, asks whether a cause of action may be brought under RCW 4.24.230,supra, even though no actual damages are alleged. We recognize that this is by no means merely an academic question for, in a significant number of shoplifting apprehensions, the stolen goods are retrieved in [[Orig. Op. Page 6]] an undamaged condition and, hence, there may be no actual damages.4/
As explained at the outset, there are two species of civil actions authorized under RCW 4.24.230; that against the adult shoplifter (paragraph (1)) and that against the parent or guardian of the unemancipated minor (paragraph (2)). The relevant language of these two paragraphs, once again, is as follows:
"(1) An adult or emancipated minor . . . shall be liablein addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed one thousand dollars, plus an additional penalty of not less than one hundred dollars nor more than two hundred dollars."
"(2) The parent or legal guardian having the custody of an unemancipated minor . . .shall be liable as a penalty to the owner or seller for the retail value of such goods, wares or merchandise not to exceed five hundred dollarsplus an additional penalty of not less than one hundred dollars nor more than two hundred dollars. . . ." (Emphasis supplied)
The apparent ambiguity in paragraph (1) which you have questioned is whether inclusion of the above‑underlined phrase "in addition to" implies that the existence of some actual damages is a prerequisite to suit in the case brought against the adult shoplifter. Once again, let us turn to the dictionary. In this caseWebster's New World Dictionary of the American Language (2nd College Edition), supra, ascribes to "in addition to" the synonym "besides" which, in turn, is defined as follows:
[[Orig. Op. Page 7]]
"besides: !il*,2. . . prep. 1. in addition to; as well as 2. other than; except"
In view of this definition we believe that the legislature used the operative phrase in the same sense as it would use the Americanism, "and/or." Accordingly, we think that the intent in subsection (1), supra, was to authorize "recovery of actual damages and/or the various penalties."
In contrast to the adult civil penalty provisions, there is no ambiguity in the parental penalty provisions of paragraph (2) of RCW 4.24.230. The penalties there prescribed clearly apply whether or not actual damages exist.5/ We believe that the excerpted definitions last set forth above compel a similar interpretation of subsection (1), for we see no reason why the legislature would so delimit the adult liability conversion actions where it has not similarly restricted the parental liability conversion actions. We thus also answer question (2) in the affirmative, concluding that actual damages need not be alleged as prerequisite for bringing an action under either subsection of RCW 4.24.230.
For ease of reference we restate this question in its entirety:
Where the amount claimed consists in part or in whole of penalties authorized under RCW 4.24.230 but the claim in its entirety does not exceed $300, may a special action for wrongful conversion be brought in the small claims department of a justice court operating under chapters 3.30 through 3.74 RCW?
[[Orig. Op. Page 8]]
Jurisdiction of the small claims court is generally governed by RCW 12.40.010 which provides as follows:
"That in every justice court of this state there shall be created and organized by the court a department to be known as the 'small claims department of the justice's court'. If the justice court is operating under the provisions of chapters 3.30 through 3.74 RCW, the small claims department of that court shall have jurisdiction, but not exclusive,in cases for the recovery of money only where the amount claimed does not exceed three hundred dollars. If the justice court is not operating under the provisions of chapters 3.30 through 3.74 RCW, the small claims department of that court shall have jurisdiction, but not exclusive,in cases for the recovery of money only where the amount claimed does not exceed two hundred dollars." (Emphasis supplied)
The issue presented is thus whether the penalty claims created by RCW 4.24.230 constitute "cases for the recovery of money only" within the meaning of RCW 12.40.010.
We have previously noted the rule that in construing a statute, words must be given their usual and ordinary meaning in the absence of a legislative definition to the contrary. Garrison v. State Nursing Board, supra. Here,Webster's New World Dictionary of the American Language (2nd College Edition) defines "recover" and "money" as follows:
"recover: !tt!il*,2. . . 5. Law. to get or get back by final judgment in a court [torecover damages]. . . .
"Money: !il*,21. a) standard pieces of gold, silver, copper, nickel, etc., stamped by government authority and used as a medium of exchange and measure of value; coin or coins; also called hard money b) any paper note issued by a government or an authorized bank and used in the same way; bank [[Orig. Op. Page 9]] notes; bills: also calledpaper money 2. any substance or article used as money, as bank notes, checks, etc. 3. any definite or indefinite sum of money 4. property; possessions; wealthy . . . 6. any form or denomination of legally current money . . . 9. [pl.] sums of money: now used chiefly in law. . . ."
On its face, the highlighted language, although arguably open to a more restrictive reading, would most readily be seen as a direction to open small claims courts to claims which are based on any valid, legal theory as long as the claims ask for no more than $300. A recent analytical piece on Washington's small claims law took this position.6/ Without citing Washington law therefor (apparently because there is none as such; see discussion,infra, at pp. 9 and 11-13) the writer there declared that an action claiming an amount within the dollar limit "could be based upon a theory of contract, tort, fraud, or even an "unfair and deceptive practice" proscribed by the Washington Consumer Protection Act.7/ Moreover, this view of the breadth of the small claims department's jurisdictionis supported by an early California Supreme Court's decision interpreting similar jurisdictional language8/ as authorizing a negligence action under that state's small claims act. Leuschen v. Small Claims Court of Highland Township of San Bernardino County, 191 C. 133, 215 P. 391 (1923).
Given the foregoing assumed range of theories upon which relief may be granted by the small claims department, your question asks whether penalty claims fall within that range. Again, [[Orig. Op. Page 10]] there is no Washington decisional authority on point. We therefore turn again to California's interpretation of its analogous legislation.9/
Interpreting language which was in all relevant aspects identical to that which is operative here, the California Supreme Court, in an early case, ruled that consumer actions for damages which are established by statute and which go beyond actual damages are properly within the jurisdiction of California's small claims courts. See,Miller v. Municipal Court of City of Los Angeles, 22 C.2d 818, 142 P.2d 297 (1943). In that case the court held that the small claims court was a court of competent jurisdiction for a consumer action filed pursuant to the Federal Emergency Price Control Act of 1942, a measure passed by Congress to check speculative and excessive price rises, price dislocations, and inflationary tendencies during the period of World War II. The plaintiff had brought suit in small claims court under section 205(e) of the act which provided that
". . . [i]f any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. . . ."
Miller v. Municipal Court, supra, at p. 838. Specifically, the plaintiff had filed an action in small claims court to recover the sum of $50 and costs, based upon an asserted over-charge of 25¢ for the inspection of automobile tires. When the case came on for trial, however, the small claims court declared that it had no jurisdiction of such an action and ordered it off calendar‑-and that ruling was appealed.
[[Orig. Op. Page 11]]
In its opinion, California's Supreme Court first dealt at length with the problem of enforcing a federal law in state courts and with the possible penal nature of this type of action. Concluding that the state court properly had jurisdiction, the opinion went on to consider whether the small claims court was authorized by the laws of California to try actions in the nature of the consumer action provided for by section 205(e) of the act. In holding that it was the court said at pp. 851-852:
"The only express limitations upon the jurisdiction of the small claims court, as to subject matter, are that the action be for the recovery of money only and that the amount claimed must not exceed $50, exclusive of costs. (Code Civ. Proc., sec. 117.) The phrase 'cases for the recovery of money only,' appearing in section 117,supra, is not limited to ordinary contract claims but includes a claim not exceeding fifty dollars for damages due to negligence. (Leuschen v. Small Claims Court, 191 Cal. 133 [215 P. 391].) Since the relief sought by the petitioner in his action against O'Farrell is solely monetary, and as his claim does not exceed $50, the small claims court obviously has jurisdiction of the subject matter. . . ."10/ (Emphasis supplied)
Finally, let it be noted that the foregoing focus on the bare language and California authority has been based on our determination that although the operative language of RCW 12.40.010, supra, has been on the books since 1919, there has never been any judicial gloss applied thereto by Washington's appellate courts. With this caveat, however, we feel that reference to one Washington source of guidance should not be totally omitted.
[[Orig. Op. Page 12]]
Sections 32 through 34 of chapter 127, Laws of 1893, provided as follows:
Sec. 32 (RCW 4.40.050):
"An issue of law shall be tried by the court, unless it is referred as provided by the statutes relating to referees."
Sec. 33 (RCW 4.40.060):
"An issue of fact,in an action for the recovery of money only, or of specific real or personal property shall be tried by a jury, unless a jury is waived, as provided by law, or a reference ordered, as provided by statute relating to referees."
Sec. 34 (RCW 4.40.070):
"Every other issue of fact shall be tried by the court, subject, however, to the right of the parties to consent, or of the court to order, that the whole issue, or any specific question of fact involved therein, be tried by a jury, or referred."
This legislation is presently codified as indicated in the inset and has never been amended. Under various rules of construction, it would be instructive to our analysis if the courts of Washington had interpreted the emphasized phrase of RCW 4.40.060 which is identical in all respects with the key language of RCW 12.40.010. SeeLeonard v. Bothell, 87 Wn.2d 847, 853, 557 P.2d 1306 (1976).11/ Unfortunately, however, while there has been at least one decision in which discussion has focused upon the relevant language of RCW 4.40.060, the [[Orig. Op. Page 13]] Washington courts have never really delineated its meaning. See,e.g., Dexter Horton Building Co. v. King County, 10 Wn.2d 186, 193-196, 116 P.2d 507 (1941).12/ The sense of the discussion in that case would nonetheless indicate that the phrase "for the recovery of money only" was intended in essence as a shorthand reference to one aspect of the courts' powers to grant legal (as opposed to equitable) relief in any case at law under the common law system. SeeDexter Horton, supra, at 194-195.
Money claims for damages under theories such as contract, tort or fraud, see footnote 6,supra, clearly fall within this "legal" relief area. In addition, there can be no question that claims for penalty damages more clearly fall within the courts' "legal" relief jurisdiction than within their equity powers. See generally, Annotation, Power of Equity Court to Award Exemplary or Punitive Damages, 48 A.L.R.2d 947.
For all of the foregoing reasons, we conclude that penalty claims brought as part of a wrongful conversion action under RCW 4.24.230 may be included in any claim for relief brought before the small claims departments of the justice's courts of the state of Washington. Thus, your third question is also answered in the affirmative.
We trust that this analysis will be of assistance to you.
Very truly yours,
JOHN R. WASBERG
Assistant Attorney General
*** FOOTNOTES ***
1/Originally enacted as chapter 59, Laws of 1975, 1st Ex. Sess., and later amended by chapter 134, Laws of 1977, 1st Ex. Sess.
2/The 1974 Alaska statute authorizes an action for "damages of not less than $100 and not more than $250" against the apprehended adult shoplifter plus court costs and attorney fees (except that where the item taken has a retail value of over $250, then the damages shall be in the amount of retail value.) A.S. § 09.65.110.
The 1973 Nevada law authorizes a civil action for the item's retail value "plus damages of not less than $100 and not more than $250," plus costs of suit and attorney fees. The action may be brought against either an adult thief or on strict liability against the parent(s) or legal guardian(s) having legal custody of a minor thief. I.C. §§ 48-701, 48-702.
The 1974 Idaho law authorizes the same civil remedies as the Nevada law, both as to actions against the adults and actions against the parents. NRS §§ 598.033, 598.035. The Idaho statute was apparently modeled after the Nevada law.
3/California Penal Code, § 490.5; Illinois Code, Title 38, § 16A-7; North Dakota Rev. Code § 51-21-05; Utah Code §§ 78-11-15, 16.
4/Of the other states with similar legislation, California is the only one whose legislation is not silent as to this circumstance. In an action against the parent of an unemancipated minor shoplifter, the merchant there may recover the retail value only of merchandise "not recovered in merchantable condition." California Penal Code § 490.5. The California merchant may nonetheless collect other civil penalties in this circumstance.
5/Indeed the legislature chose not to allow recovery of actual damages against the parent in this strict liability action. Presumably, actual damages could nonetheless be recovered on a negligence or intentional tort theory.
6/Kreuger, Walter R., The Small Claims Court in the State of Washington, 10 Gonzaga L. Rev. 683 (1975).
7/Ibid. at 686.
8/In Leuschen, supra, the operative statutory provisions, now codified as California Code of Civil Procedure § 117, required in relevant part that the claim be for "recovery of money only."
9/The instant jurisdictional question would not arise under California's small claims act, Cal. Civ. Proc. Code § 117. California's parellel parental liability act (Cal. Pen. Code 490.5) explicitly provides that such actions "may be brought in small claims court if the total damages do not exceed the jurisdictional limit of such court, or in any other appropriate court; . . ."
10/See also California Attorney General Opinion, 59 OAG 321 (May 13, 1976) in which the Miller case,supra, was cited as authority for the conclusion that small claims courts in California have jurisdiction to grant penalty damages in certain landlord-tenant disputes. Under scrutiny in 59 OAG 321 were statutorily authorized tenant penalty claims based on bad faith retention of security or damage deposits by landlords.
11/[T]he legislature is presumed to be familiar with its own prior enactments and judicial decisions; Beach v. Board of Adjustment of Snohomish County, 73 Wn.2d 343, 438 P.2d 617 (1968) rule: Statutes relating to the same subject matter (in this case, jurisdictional and procedural matters) should be construed as one law.
12/One explanation which might be offered for this failure of the courts to focus on the apparently crucial language of chapter 4.40 RCW is that the well-established common law doctrines for determination of the respective provinces of judge and jury have offered more flexible and hence more viable guidelines than the bare language of a statutory scheme. See Trautman, Philip A., Right to a Jury Trial in Washington‑-Present and Future, 34 Washington Law Review, 401, 405-406 (1959).