1. The evidence is sufficient to have authorized the jury to find that the plaintiff was unlawfully detained and deprived of his personal liberty within the meaning of Code § 105-901.

2. The evidence supported the jury's finding that one of the principal actors in the illegal restraint of the plaintiff was at the time of the restraint the agent of the defendants.

3. It is not a good defense to an action for false imprisonment that the plaintiff during the time of his detention was the employee of the defendants and was being paid by the defendants during the period of restraint.

4. The evidence authorized a verdict against the defendants under Code § 105-903.

DECIDED NOVEMBER 19, 1964.

Richard K. Brooks sued Leonard Greenbaum and Irwin Greenbaum seeking damages for false imprisonment allegedly committed by an agent of the defendants.

Evidence adduced at the trial of the case showed that the defendants were engaged as partners in the operation of Green's Liquor Store, where the plaintiff was employed as a clerk. The defendants had been experiencing shortages in merchandise, and for this reason employed a "personnel analysis" agency to make an investigation of the efficiency and honesty of the partnership employees.

The defendants introduced evidence tending to show that at the time of the alleged false imprisonment Robert H. Allen Company, Inc., was an independent contractor and Robert H. Allen, who interrogated the plaintiff, was not an agent of the defendants subject to their control and direction. However, Mr. Allen testified that his interview with the plaintiff was a "mutual suggestion" of both Allen and defendant Leonard Greenbaum, and when defendant Leonard Greenbaum was asked if he had given Robert H. Allen authority to interrogate the plaintiff, he testified: "Mr. Allen couldn't have gone into my office unless I had known it and allowed him in there. That is my private office; the fact that he was in there with Mr. Brooks speaks for itself."

The jury returned a verdict for the plaintiff in the amount of $6,000, and judgment was entered on the verdict. Thereafter, the defendants made a motion for judgment notwithstanding the verdict which was denied. The defendants assign error upon the judgment of the trial court denying their motion for judgment notwithstanding the verdict.

BELL, Presiding Judge.

1. The evidence appearing in the record is sufficient to have authorized the jury to find that the plaintiff was unlawfully detained and deprived of his personal liberty within the meaning of Code § 105-901.

There is evidence to the effect that plaintiff was taken into a defendant's office, the door was closed and the interrogator placed a chair against the door and sat in the chair. The plaintiff was then questioned regarding stolen money. At least twice during the interrogation the plaintiff asked to leave. Plaintiff testified he was afraid to leave and was at the time physically afraid of the interrogator. On one occasion plaintiff stood up to leave but was shoved back and told, "You're not through yet." This evidence alone, although contradicted, was sufficient to create a jury issue on the false imprisonment of the plaintiff's person and to support their affirmative finding that he was illegally restrained.

The only elements necessary to create liability for false imprisonment are the detention and its unlawfulness. Waters v. National Woolen Mills, 142 Ga. 133 ( 82 S.E. 535); Conoly v. Imperial Tobacco Co., 63 Ga. App. 880 ( 12 S.E.2d 398). Malice and want of probable cause need not be shown. Westberry v. Clanton, 136 Ga. 795 ( 72 S.E. 238); Vlass v. McCrary, 60 Ga. App. 744 ( 5 S.E.2d 63). "The restraint constituting a false imprisonment may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries." Sinclair Refining Co. v. Meek, 62 Ga. App. 850, 854 ( 10 S.E.2d 76).

2. The defendants contend they are not liable for any illegal restraint of the plaintiff's person since the interrogator was an independent contractor and not the defendant's agent.

While there is evidence in the record showing that the interrogator was an investigator for a detective agency with whom the defendants had contracted to conduct "purchase tests" in the defendants' store, there is nothing specific in the written contract between the defendants and the detective agency relating to oral interrogations. For this reason the contract is not at all inconsistent with a finding that at the time of plaintiff's detention the investigator was acting no longer as agent of the independent contractor, but instead as defendants' agent. Add to this the following uncontradicted facts shown by the evidence: (1) One of the defendants, together with the investigator, planned the "mutually suggested" interrogation of plaintiff. (2) One defendant provided his private office on the defendants' premises as the place for conducting the interrogation. (3) One defendant made plaintiff available for the interrogation during working hours and initiated it by directing plaintiff into the office and presenting him to the interrogator. (4) One defendant determined when the interrogation should cease. Obviously the plaintiff could not have been interrogated at all without having at least the cooperation of the defendants and the facts are susceptible to the inference that the defendants actually exercised a power of direction and control over the interrogator at the time of plaintiff's detention.

The agency relationship may arise by implication as well as by express authority. Code § 4-101; Griffin v. Russell, 144 Ga. 275, 278 ( 87 S.E. 10, LRA 1916F 216, AC 1917D 994). "A claim of agency may be proved, as any other fact, by circumstantial evidence. . . The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties." See Universalist Convention v. Guest, 179 Ga. 168, 174 ( 175 S.E. 466) and cases there cited. The test to be applied in determining the relationship of the parties is whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract. Massee Felton Lumber Co. v. Macon Cooperage Co., 44 Ga. App. 590 (2) ( 162 S.E. 396). "The employer is liable for the negligence of the contractor. . . If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relations of master and servant. . ." Code § 105-502. See Zurich c. Ins. Co. v. Lee, 36 Ga. App. 248 ( 136 S.E. 173); Cooper v. Dixie Constr. Co., 45 Ga. App. 420 ( 165 S.E. 152); Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801 ( 92 S.E.2d 871); Newsome v. Dunn, 103 Ga. App. 656 (3) ( 120 S.E.2d 205). "A principal may be liable for the wilful tort of his agent, done in the prosecution and within the scope of his business, although it is not expressly shown that he either commanded the commission of the wilful act or assented to it. Since the determinative question in the case is whether the act is done `in the prosecution and within the scope of' the principal's business . . . either command or assent can properly be implied. . ." Planters Cotton-Oil Co. v. Baker, 181 Ga. 161, 163 ( 181 S.E. 671). Cf. Code §§ 4-312, 105-108.

Under the foregoing principles the evidence authorized the inference that at the time of plaintiff's illegal detention the interrogator was acting as the defendants' agent and within the scope of his authority.

3. The defendants contend also that they are not liable for the false imprisonment of plaintiff as his detention and interrogation occurred during working hours and while the defendants were paying for his time.

The contention does not establish an acceptable defense as the explicit language of Code § 105-901 does not permit it. The unmistakable language of the Code makes it clear that the unlawful detention of the person of another depriving him of his personal liberty is an actionable tort even though the one restrained is an employee of the offender and is at the time of the illegal restraint being paid by the offender. In this connection see Moffatt v. Buffums, Inc., 21 Cal.App.2d 371 ( 69 P.2d 424); Dillon v. Sears-Roebuck Co., 126 Neb. 357 ( 253 N.W. 331); 35 CJS 645, False Imprisonment, § 19.

4. Although neither party mentions the possibility in his argument and the matter is not pleaded affirmatively in the petition, the verdict for the plaintiff was also authorized under the provisions of Code § 105-903, which states in part that "If the imprisonment is the act of several persons, they may be sued jointly or separately. . ." There was sufficient evidence offered without objection which would have the effect of amending the pleadings under the theory stated in Harvey v. DeWeill, 102 Ga. App. 394, 404-407 ( 116 S.E.2d 747), and which would have authorized the verdict against the defendants.

The trial court did not err in denying the defendants' motion for judgment notwithstanding the verdict.

Judgment affirmed. Jordan and Eberhardt, JJ., concur.