Atlantic Zayre, Inc. v. Meeks

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; BANKE, P.J., and BIRDSONG
• Citation: Atlantic Zayre, Inc. v. Meeks, 390 S.E.2d 398, 194 Ga.App. 267 (Ga. App. 1990)
• Decision Date: 03 January 1990
• Docket Number: No. A89A1893,A89A1893
• Parties: ATLANTIC ZAYRE, INC. v. MEEKS.

Page 398

390 S.E.2d 398

194 Ga.App. 267

ATLANTIC ZAYRE, INC. v. MEEKS.

No. A89A1893.

Court of Appeals of Georgia.

Jan. 3, 1990.

Rehearing Denied Jan. 19, 1990.

Certiorari Granted Feb. 21, 1990.

Greene, Buckley, Derieux & Jones, John D. Jones, Margaret L. Milroy, Steven J. Misner, Atlanta, for appellant.

Long & Vincenzi, John A. Vincenzi, Nick Long, Atlanta, for appellee.

DEEN, Presiding Judge.

Appellee Steve Meeks, a juvenile, and his slightly older brother were shopping for fishing lures. Having purchased approximately $5 worth at a K-mart, they proceeded to a nearby Zayre's store to compare the merchandise. Parking their old truck in the store's parking lot, they took the K-mart lures from the paper bags in which K-mart check-out personnel had placed them, put the lures into their pockets, and entered Zayre's. While examining Zayre's fishing lures appellee took a K-mart lure from his pocket and, after holding it up for comparison with the Zayre's item, returned the former to his pocket. Shortly thereafter the boys left the store.

A Zayre's security guard, who was not wearing a uniform, observed the boys' activities and, thinking that it was Zayre's merchandise that was being pocketed, pursued the boys out the front door and ordered Steve to stop. Not immediately recognizing that the man was a guard, and not aware of having done anything improper or illegal, Steve at first would not cooperate with the guard. Testimony was presented regarding an exchange of blows and imprecations, during which, inter alia, Steve came to realize that he was suspected of shoplifting; at which time, by the guard's own admission, Steve told him that his K-mart receipts were in his nearby truck.

The guard continued to berate the boy and took him to a room at the rear of the store, where Steve again told him of the receipts and asked him to send someone for them. Although the receipts were subsequently obtained, Steve was nevertheless arrested for shoplifting and battery; he was acquitted by the juvenile court. Meeks' father filed a tort action against Zayre's; ultimately, only the claim for malicious prosecution was pursued. A jury awarded $75,000 in actual damages and $175,000 in punitive damages. After denial of motions for j.n.o.v. and new trial, Zayre's appealed from this verdict and judgment.

Appellant Zayre enumerates as error (1) the trial court's charging the jury on malicious prosecution; (2), (6) the court's admitting evidence of Zayre's "worldly circumstances," including its annual reports; (3) the court's permitting questions on voir dire regarding the prospective jurors' willingness to award "specific amounts of damages"; (5) the court's admitting evidence that Zayre did not promulgate rules for employees' conduct; and (4) the verdict was excessive as a matter of law. Held:

1. Zayre alleges that a suit for malicious prosecution will not lie unless certain elements are present: (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. J.C. Penney Co. v. Miller, 182 Ga.App. 64, 66, 354 S.E.2d 682 (1987). This is a correct statement of the law. See OCGA § 51-7-40; Smith v. Embry, 103 Ga.App. 375, 119 S.E.2d 45 (1961). Appellant further contends that Meeks' malicious prosecution action was improper because in the underlying criminal action there was a binding determination of probable cause. In so contending appellant relies on Monroe v. Sigler, 256 Ga. 759, 353 S.E.2d 23 (1987). In Sigler an adult was arrested on certain charges and, after a preliminary hearing in which the presiding magistrate found probable cause for his arrest, he was bound over to the grand jury. At trial defense counsel moved for a directed verdict of acquittal at the close of the State's evidence; the court denied the motion, and defendant was subsequently acquitted. In the appeal from the judgment in the malicious prosecution action which ensued, the Supreme Court held that the denial of a motion for directed verdict of acquittal, made at the close of the State's evidence, constitutes a binding determination that there was probable cause for the prosecution of the criminal charges, and that the malicious prosecution action was therefore unjustified.

In J.C. Penney v. Miller, supra, the Sigler holding was applied to the case of a juvenile who was arrested for shoplifting and found by the juvenile court referee to be "guilty of the offense of shoplifting beyond a reasonable doubt." Id., 182 Ga.App. at 66, 354 S.E.2d 682. On appellate review of the malicious prosecution action, this court found that, even though the petition had ultimately been dismissed for reasons not germane to the issues in the instant case, "[t]he juvenile court proceedings ... cannot reasonably be viewed as having terminated favorably" to the juvenile, as contemplated under the third prong of the requisites for a viable malicious prosecution claim, cited supra. Id.

In the instant case, unlike Miller, there was no adjudication of "delinquent" in the juvenile court. Moreover, because the juvenile proceeding is totally other than and distinct from a criminal proceeding, T.L.T. v. State, 133 Ga.App. 895, 212 S.E.2d 650 (1975), there is a real question as to whether the denial of a directed verdict for acquittal in a juvenile case, as distinguished from a criminal case, can be held to fall under the rubric of Sigler, especially where, as in the case sub judice, the juvenile was not adjudicated delinquent by the juvenile court. Bearing in mind this crucial distinction between the posture of the accused juvenile in Miller and in the instant case, we find neither Sigler nor Miller to be controlling in--or even significantly in conflict with--our determination in the instant case.

In Atlantic Zayre v. Williams, 172 Ga.App. 43, 322 S.E.2d 83 (1984), plaintiff/appellee was stopped as he left a Zayre's store because a security guard had seen in his rear pocket an item which he had brought in to exchange. After learning the price of the replacement item from the cashier, he decided not to make the exchange, laid the replacement on a shelf beside the cash register, paid for some unrelated items, and left the store with the original item in his pocket. He had not brought his original receipt with him, and store personnel refused to accept his explanation, despite the fact that it "checked out" in all other respects. Plaintiff/appellee dropped the charge in court a week later.

In Williams this court, citing Melton v. LaCalamito, 158 Ga.App. 820, 823-824, 282 S.E.2d 393 (1981), held: " 'In actions for malicious prosecution, the question is, not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe--whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution [cit.] ... The evidence in this case raised a jury question as to whether a reasonably prudent person would have made further inquiry before prosecuting [cit.].' " In Melton, supra, in which the person who brought the malicious prosecution action had been unable to prove that certain disputed items belonged to him rather than to the firm with which he was dealing, the court cited Prosser, Law of Torts, § 119 at 842 (4th ed. 1971): as to the reasonableness of the defendant's deciding to proceed with the criminal prosecution, "[a]ll such factors as ... the availability of further information and the difficulty of obtaining it, ... [the] opportunity [of the accused] to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification ...," cited in Melton, at 824, 282 S.E.2d 393. See also Colonial Stores v. Fishel, 160 Ga.App. 739, 288 S.E.2d 21 (1981). In the instant case further information was available (i.e., whether there actually were K-mart receipts in the truck); the boy...