Atlantic Zayre, Inc. v. Williams

• Court: Georgia Court of Appeals
• Writing for the Court: SOGNIER; McMURRAY
• Citation: Atlantic Zayre, Inc. v. Williams, 322 S.E.2d 83, 172 Ga.App. 43 (Ga. App. 1984)
• Decision Date: 06 September 1984
• Docket Number: No. 68587,68587
• Parties: ATLANTIC ZAYRE, INC. v. WILLIAMS.

Page 83

322 S.E.2d 83

172 Ga.App. 43

ATLANTIC ZAYRE, INC. v. WILLIAMS.

No. 68587.

Court of Appeals of Georgia.

Sept. 6, 1984.

John D. Jones, Newton M. Galloway, Atlanta, for appellant.

Thomas L. Murphy, Atlanta, for appellee.

SOGNIER, Judge.

James Williams sued Atlantic Zayre, Inc. for malicious prosecution, false arrest and false imprisonment stemming from an alleged shoplifting incident at one of Atlantic Zayre's stores. The jury returned a verdict for Williams in the amount of $10,000 and Atlantic Zayre appeals.

Appellee purchased a light dimmer switch at one of appellant's stores. Appellee discovered he had purchased the wrong switch and returned with a friend the following day to exchange the switch for a correct dimmer switch. The incorrect switch, restapled in its box, was in appellee's pants pocket. After comparing the incorrect switch with the correct dimmer switch, appellee put the incorrect switch back in his pocket and proceeded to the cash register to exchange the switches. However, appellee had failed to bring his purchase receipt and because the correct switch was more expensive, he decided not to buy it. He placed the new switch on a shelf behind the cash register and paid for some other items. As appellee was walking out of the store, appellant's security officer grabbed appellee by his pants pocket and ripped it. Appellee was taken to the security office where he explained what had occurred to both the security officer and the store's security manager, John Parnell. Parnell accompanied appellee to the check-out counter where the correct switch was found exactly where appellee had placed it. Despite appellee's explanation, appellant's security personnel filed a shoplifting charge against appellee. Appellee was taken to the police car parked directly in front of appellant's store where he sat fifteen to twenty minutes while he was ticketed by the police officer who had been called by appellant's personnel. Appellee was then allowed to leave. The charge against appellee was dismissed in court by appellant approximately a week later.

1. Appellant contends the trial court erred by failing to accept the first verdict handed down by the jury, which stated that appellant was "not guilty" of the charges but concluded: "We, the Jury, find: that the Defendant [appellant] is guilty as charged with false imprisionment [sic] and hereby request that the Plaintiff be awarded for [sic] punitive damages." Because of the conflict in the verdict, the trial judge would not accept it, and instructed the jury as to the proper form of the verdict. After further deliberations the jury returned with a verdict for appellee which was accepted by the trial court and approved by appellant's counsel as being in a proper form. "When the jury returns a verdict which is obviously conflicting, it is proper for the judge to explain the conflict to the jury and send them back for further consideration; it is not required that he receive and publish it. Smith v. Pilcher, 130 Ga. 350(1), 60 S.E. 1000. With the conflicting findings appearing the judge was fully authorized to use his power of supervising the trial in trying to get a verdict which would be without conflict and would be the product of the jury." Conner v. Mangum, 132 Ga.App. 100, 103(2), 207 S.E.2d 604 (1974). Thus, the trial court did not err by refusing to accept the first verdict here.

2. Appellant contends the verdict was against the weight of the evidence. An appellate court passes on the sufficiency of the evidence, not the weight. Giordano v. Fed. Land Bank, 163 Ga.App. 390 (1), 294 S.E.2d 634 (1982). There is some evidence to support the verdict and judgment.

Appellant argues there was evidence that appellant's security officer acted with probable cause. The record discloses that after initially detaining appellee under a reasonable suspicion of shoplifting, appellant's security officer and security manager initiated prosecution against appellee for shoplifting despite appellee's explanation and the discovery, after detention but prior to the arrival of any police officer, of evidence corroborating appellee's statement. " ' "In actions for malicious prosecution, the question is, not whether the plaintiff [appellee] was guilty, but whether the defendant [appellant] 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.] Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was prosecuted." ' [Cit.]" Melton v. LaCalamito, 158 Ga.App. 820, 823-824, 282 S.E.2d 393 (1981). The evidence in this case "raised a jury question as to whether a reasonably prudent person would have made further inquiry before prosecuting. [Cit.]" Bi-Lo, Inc. v. Stanciel, 148 Ga.App. 614, 615(1), 251 S.E.2d 834 (1979). The jury was thus authorized to find that appellant was acting without probable cause when charges were pressed against appellee.

Appellant also argues that the evidence was devoid of any showing of malice on its part. " 'The "malice" contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and "may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual." ' [Cit.]" Melton, supra 158 Ga.App. at 824(2)(c), 282 S.E.2d 393. Testimony was presented that even after Parnell and the security officer learned of the evidence supporting appellee's claim of innocence, Parnell refused to exert his authority and override the security officer's insistance on pressing the shoplifting charge. The security officer testified that "my shoplifters I bust, I don't let them go free. I always prosecute." From the evidence in this case, the jury could find malice. See Melton, supra at 824, 282 S.E.2d 393; Wilson v. Bonner, 166 Ga.App. 9, 13, 303 S.E.2d 134 (1983); Voliton v. Piggly Wiggly, 161 Ga.App. 813, 815, 288 S.E.2d 924 (1982).

We find no merit in appellant's further argument that the trial court erred by recharging the jury as to the form of the verdict. The record discloses that appellant's counsel approved the form of the second verdict, the recharge allowed the jury to bring in a verdict free of conflicts, and that sufficient evidence existed to authorize that verdict.

3. Appellant contends the trial court erred by admitting appellee's testimony concerning the conduct of appellant's security manager, John Parnell, subsequent to the shoplifting incident. Appellee testified that Parnell telephoned him several times and made three uninvited visits to appellee's home, bringing bottles of whiskey and on one occasion a marijuana cigarette. During these contacts, Parnell spoke to appellee mainly about signing a release form in exchange for a letter of apology from appellant. However, Parnell also spoke to appellee about the personality conflicts existing between him (Parnell) and the security officer which explained Parnell's refusal to override the security officer's insistance on pressing the shoplifting charge against appellee.

"Although there must be malice and want of probable cause at the inception of the action, all of the circumstances surrounding the original action, whether occurring before or after its initiation, may be used to support reasonable inferences that malice or want of probable cause existed from the beginning. [Cit.]" Bi-Lo, Inc., supra 148 Ga.App. at 616(3), 251 S.E.2d 834. The testimony complained of was relevant to the question why Parnell allowed charges to be pressed against appellee even after he had reason to believe appellee...