Opinion
44163.
ARGUED JANUARY 7, 1969.
DECIDED APRIL 25, 1969. REHEARING DENIED JUNE 12, 1969.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
E. A. Deal, Robert W. Cagle, for appellant.
Smith, Cohen, Ringel, Kohler, Martin Lowe, H. A. Stephens, Jr., for appellee.
1. In an action arising out of the detention of the plaintiff for suspected shoplifting, the determination of whether the defendant, through its agents, acted with reasonable prudence was for the jury, where the facts as to such issue were in dispute.
2. Two charges enumerated as error contained correct principles of law and were not error for the reasons assigned.
ARGUED JANUARY 7, 1969 — DECIDED APRIL 25, 1969 — REHEARING DENIED JUNE 12, 1969.
William Dixon brought his action for damages in Fulton Superior Court against S. S. Kresge, t/a K-Mart. The complaint alleged that on May 21, 1966, the plaintiff, accompanied by one Matthews, entered a store owned and operated by the defendant; that they stopped at the hat department in the store where Matthews began trying on hats, while the plaintiff went to the sporting goods department; that the plaintiff decided not to purchase any goods and he and Matthews proceeded towards the exit where an employee of the defendant grabbed hold of the plaintiff's arm and told him he was under arrest; that the employee, who was a security guard, marched both the plaintiff and Matthews through the store towards the back and into an office; that the door of the office was closed and locked and that the guard searched both the plaintiff and Matthews; that after detaining the plaintiff for approximately 45 minutes the plaintiff was told he was free to go. The complaint further alleged that the employee of the defendant had no reasonable grounds to believe that the plaintiff was shoplifting and that he at no time conducted himself so as to cause a reasonably prudent person to believe he was or had been shoplifting; that the acts of the defendant's employees caused him great embarrassment and humiliation and that the defendant acted in bad faith, without probable cause. The complaint as amended sought damages and punitive damages in the amount of $75,000.
The defendant answered, denying the material allegations of the petition, and both parties filed interrogatories seeking additional information.
The case came on for trial at which the following evidence was adduced. The plaintiff testified: that, after he and Matthews entered the store, Matthews started trying on hats and they went to the sporting goods department; that they then started to leave and right before they got to the cash registers the plaintiff realized that Matthews had a hat on his head. He then told Matthews he was going over to the grocery department for a carton of cigarettes and at this time he and Matthews were arrested. They were taken to an office at the rear of the store where they were searched and questioned. After some 45 minutes to an hour, the plaintiff was told that he was free to go.
The security officer of the defendant store, A. P. Guyton, testified that he observed the plaintiff and Matthews when they entered the store. He related that they went straight to the rack where hats were displayed and that Matthews began trying on hats while the plaintiff stood behind him talking and was no more than 4 feet away from him; that Matthews tore the ticket off the hat which he had just tried on, threw the ticket down, put the hat on his head and the two of them walked to the rear of the store into the sporting goods department.
Guyton testified that he watched them come out of the store into the opening for patrons who do not make a purchase and that when they started for the door he stopped them. He further testified that Matthews resisted strenuously, was searched and was sent to the city jail. Guyton denied that he either took the plaintiff into custody or searched him and related that he merely asked the plaintiff to come back to the office with them.
Although the plaintiff testified that the door had been locked, Guyton and Frye, a manager of the store, denied this. There was conflicting testimony by Frye and Guyton as to whether the plaintiff was told he might go or was merely allowed to go.
At the conclusion of the evidence the plaintiff moved for a directed verdict which was denied. The jury returned a verdict for the defendant and the plaintiff filed a motion for new trial and a motion for judgment notwithstanding the verdict. The trial judge overruled both these motions.
The plaintiff in his appeal to this court enumerated as error the denial of his motion for directed verdict, the overruling of his motion for new trial and the overruling of the judgment notwithstanding the verdict. The plaintiff also enumerated as error two portions of the judge's charge: the first in which the judge charged the provisions of Code Ann. § 105-1005 (Ga. L. 1958, p. 693), and the second in which the judge charged the provisions of Code Ann. § 26-2641 (Ga. L. 1957, pp. 115, 116).
Formerly, the rule has been "to sustain an action for false imprisonment it is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful." Lowe v. Turner, 115 Ga. App. 503, 506 ( 154 S.E.2d 792). However, Code Ann. § 105-1005 states that where a person reasonably thought to be engaged in shoplifting is detained or arrested, there shall be no recovery in an action for false arrest or imprisonment "where it is established by competent evidence that the plaintiff had so conducted himself, or behaved in such manner, as to cause a man of reasonable prudence to believe that such plaintiff was committing the offense of shoplifting, as defined by the statute of this State." Ga. L. 1958, p. 693. Thus, it is apparent that under the law probable cause, or more accurately "reasonable" cause, is the determinative factor in a case of this nature.
The evidence showed that the plaintiff was in the presence of, and talking with, the other party who removed a hat from the counter, tore out the price tag and placed it on his head. Code Ann. § 26-2641 provides that "any person who shall aid, assist or abet another in any of the acts constituting shoplifting shall be deemed guilty of shoplifting." A witness for the defendant admitted that he did not believe that the plaintiff "of himself" had done any shoplifting or had taken anything. However, a man of reasonable prudence might well have believed that the plaintiff was aiding, assisting or abetting the other party in shoplifting. In defining aiding and abetting this court held in Loeb v. State, 6 Ga. App. 23, 30 ( 64 S.E. 338): "The two words together `comprehend all assistance given by acts, words, or encouragement, or by presence actual or constructive.'"
Probable cause has been defined as "the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of a crime for which he was prosecuted." Turner v. Bogle, 115 Ga. App. 710, 712 ( 155 S.E.2d 667). Judge Eberhardt, writing the opinion in the Turner case, also pointed out (p. 713): "The General Assembly has declared it the public policy of this state that there should be no recovery in an action for false arrest or false imprisonment arising out of the detention or arrest of one who the owner or operator (or their agents or employees) might, by reason of his conduct or behavior, have had reasonable cause to believe was shoplifting." Here, as required by Code Ann. § 105-1005, there was some evidence, although disputed, that the plaintiff had conducted himself in such manner as to cause a man of reasonable prudence to believe he was shoplifting, as defined by law. Under such circumstances, the determination of this issue was for the jury and will not be controlled by this court.
The trial judge did not err in denying the motion for judgment notwithstanding the verdict and in overruling the motion for new trial.
2. The two charges objected to were correct statements of law as reiterated in Division 1 of this opinion and were adjusted both to the pleadings and to the facts and circumstances of this case. Hence, they were not error for the reasons assigned.
Judgment affirmed. Bell, P. J., Jordan, P. J., Hall, Eberhardt, Pannell, Deen and Whitman, JJ., concur. Felton, C. J., dissents.
1. Traditionally, the burden of proof in this kind of action has been on the plaintiff and prior to Ga. L. 1958, p. 693 ( Code Ann. § 105-1005), malice and probable cause were not necessary ingredients. The 1958 Act was intended to make probable cause an affirmative defense with the burden of proof on the defendant. Isaiah v. Great Atlantic Pacific Tea Co., 111 Ohio App. 527 (15 Ohio Ops. 2d 291, 174 N.E.2d 128, 86 ALR2d 430).
2. The defense of probable cause was not raised by the pleadings of the defendant. The proffered defense by the defendant in its pleadings and evidence showed only one defense and that was that the agent of the defendant did not arrest or detain the plaintiff. The very definition of probable cause, cited by the majority from Turner v. Bogle, 115 Ga. App. 710, supra, precludes the consideration of such a defense because the very existence of probable cause depends on the fact that the facts and circumstances surrounding the conduct of the person charged with the offense must have been acted upon by the person for whose benefit the probable cause defense was enacted.
3. The charges excepted to by the plaintiff were erroneously given by the court: (1) Because probable cause was not claimed or urged by the defendant, either as of the time of the trial or as of the time of the alleged detention. (2) There is no evidence that the defendant consciously acted on facts it considered probable cause at the time of the alleged detention. (3) Even if there could be a determination from the facts and circumstances in the case that if the agent of the defendant had considered the question of probable cause (which is contrary to fact) he would have been justified in concluding that he had probable cause for the detention, neither the agent (nor the appellee) can at this stage of the game utilize the claim. And even though the agent did not need to reach the question of probable cause, because he testified that he did not in fact detain the plaintiff by force or coercion, the evidence, wholly circumstantial, is not sufficient to show that the agent of the defendant had probable cause to believe that the plaintiff aided and abetted Mr. Matthews in shoplifting. I think the court erred in overruling the appellant's motion for a new trial.