Baggett v. National Bank & Trust Co.

• Decision Date: 13 March 1985
• Docket Number: 69331,Nos. 69330,s. 69330
• Citation: 330 S.E.2d 108,174 Ga.App. 346
• Court: Georgia Court of Appeals
• Parties: BAGGETT v. NATIONAL BANK & TRUST COMPANY; NATIONAL BANK & TRUST COMPANY v. BAGGETT.

Page 108

330 S.E.2d 108

174 Ga.App. 346

BAGGETT v. NATIONAL BANK & TRUST COMPANY;

NATIONAL BANK & TRUST COMPANY v. BAGGETT.

Nos. 69330, 69331.

Court of Appeals of Georgia.

March 13, 1985.

Rehearing Denied March 29, 1985.

Certiorari Denied May 10, 1985.

Frank K. Martin, Columbus, for appellant.

Richard Y. Bradley, Columbus, for appellee.

POPE, Judge.

Richard Baggett sued The National Bank and Trust Company to recover damages for the bank's alleged action in causing him to be arrested and detained as a suspected bank robber. The complaint was grounded on theories of both false imprisonment and negligence. The trial court granted the bank's motion for summary judgment with respect to the false imprisonment count but denied the motion with respect to the negligence count. Baggett appeals from the former ruling, and the bank cross-appeals from the latter ruling.

The salient facts are undisputed for purposes of this appeal. At approximately 10:00 a.m. on February 11, 1981, Baggett entered the bank's Columbus East Branch seeking to deposit a portion of his paycheck into his checking account and to obtain cash for the remainder. He took a deposit slip from a supply provided for customer use, filled it out, and handed it to a teller, along with his paycheck and his driver's license. Unbeknownst to him, on the reverse side of the deposit slip someone had written the words, "This is a stek [sic] up." Upon seeing this message, the teller handling the transaction walked to the rear of the teller area, phoned the acting branch manager, whose office was located directly across the lobby from the teller area, and told her, "I've got a note, call the police." The teller then returned to Mr. Baggett and completed his transaction, whereupon Baggett departed the bank, got into his vehicle, and drove off, without taking or demanding anything to which he was not entitled.

Upon receiving the phone call from the teller, the acting branch manager immediately sounded the bank's silent alarm, which had the effect of alerting the local police department that a robbery or attempted robbery was in progress. Officer Lewis Steward arrived at the bank in response to the alarm shortly after Baggett had left and received from bank personnel an accurate report of what had transpired, including the information that Baggett had a checking account at the bank, had not appeared to be nervous or upset, and had not taken anything that did not belong to him. Officer Steward nevertheless issued a radio bulletin for Baggett's arrest. Baggett was arrested approximately 15 minutes later in response to this bulletin and was brought back to the bank, where bank employees verified that he was in fact the person who had presented the deposit slip. He was then questioned by police in the bank's conference room, at which time he supplied several handwriting samples. During this phase of the investigation, it was determined that the deposit slip used by Baggett was not the only one in the banking area which contained a "stick up" note on the back. Baggett was subsequently taken to police headquarters, where he was questioned further and finally released about three hours after his arrest, with no formal charges having been lodged against him. Both the arresting officer and the officer who issued the radio bulletin testified by affidavit that no officer, employee, or agent of the bank had requested at any time that Baggett be arrested or detained. Held:

1. "The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution [cit.]; in the latter case there is not. [Cit.]" Ginn v. C. & S. Nat. Bank, 145 Ga.App. 175, 178, 243 S.E.2d 528 (1978). "[A]s stated in Prosser, Law of Torts, § 119 at 837 (4th Ed.1971): 'If the defendant ... merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer's decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.' " Melton v. LaCalamito, 158 Ga.App. 820, 822, 282 S.E.2d 393 (1981). See also Hammond v. D.C. Black, Inc., 53 Ga.App. 609, 186 S.E. 775 (1936); Restatement, Second, Torts § 45A, Comment c at 70 (1965).

The evidence submitted by the bank in support of its motion for summary judgment establishes without dispute that the decision to arrest Baggett was made solely by the police, based on the bank employees' accurate and good faith account of what had transpired, and without any request on their part that he be detained or held in custody. We reject Baggett's contention that contrary evidence is created by two averments in his own affidavit, one to the effect that he was told by a police detective that the teller had identified him as "the guy who tried to rob her" and another to the effect that the acting manager asked him as he was being transported to the bank's conference room, " 'Ricky, why did you do it?' " The former statement is double hearsay and consequently without probative value, while the latter statement does not conflict with the evidence showing that the bank employees provided accurate information to police and made no effort to procure the arrest. It follows that the trial court did not err in granting summary judgment to the bank with respect to the false imprisonment claim. Accord Moses v. Revco Discount Drug Centers etc., of Ga., 164 Ga.App. 73, 75, 296 S.E.2d 384 (1982); C. & S. Bank of Houston v. McDowell, 160 Ga.App. 69, 286 S.E.2d 58 (1981); Dixie Beer Co. v. Boyett, 158 Ga.App. 622, 281 S.E.2d 356 (1981).

2. We further conclude that the bank was entitled to summary judgment on the negligence claim. While it is certainly true that the owner of a business has a duty to protect its customers from injury caused by the tortious misconduct of its employees (see, e.g., Jacobs v. Owens, 96 Ga.App. 318, 320, 99 S.E.2d 895 (1957); Southern Grocery Stores v. Keys, 70 Ga.App. 473, (2), 28 S.E.2d 581 (1944)), the undisputed evidence refutes the existence of such misconduct in this case. Although it may perhaps be said with the benefit of hindsight that the teller overreacted to the "stek up" note, it is quite clear that in doing so she was merely acting in good faith to a perceived threat of criminal activity.

"Statements made in good faith to police officers or others investigating criminal activity cannot be the basis of a tort action. [Cit.]" Moses v. Revco Discount Drug Centers, supra, 164 Ga.App. at 75, 296 S.E.2d 384. Accord Manis v. Miller, 327 So.2d 117 (Fla.App.1976). "To allow an action in negligence to lie against a citizen if he makes an honest mistake in reporting to the police would have a chilling effect on an important source of information about crime. Citizen cooperation is essential to efficient police operation and should not be stifled." LaFontaine v. Family Drug Stores, 33 Conn.Supp. 66, 360 A.2d 899, 905 (1976). Accord Meyers v. Glover, 152 Ga.App. 679, 683-684, 263 S.E.2d 539 (1979), overruled on other grounds, McCord v. Jones, 168 Ga.App. 891, 893, 311 S.E.2d 209 (1983).

The case at bar is factually distinguishable from our recent decision in Oden & Sims Used Cars, Inc. v. Thurman, 165 Ga.App. 500(3), 301 S.E.2d 673(1983). In the case at bar, as we have noted above, Baggett's arrest occurred as the result of an "honest mistake" in reporting to the police a perceived threat of criminal activity. The bank's actions in this regard cannot form the basis of an action in negligence. In Oden & Sims Used Cars, Inc. v. Thurman, supra, defendant Martin Burks Chevrolet, Inc. reported as stolen a vehicle which had been erroneously picked up at the Martin Burks lot by defendant Oden & Sims Used Cars, Inc. Oden & Sims subsequently sold the vehicle to plaintiff Thurman. Oden & Sims discovered the error, notified Martin Burks thereof, and reimbursed Martin Burks for the vehicle. However, no effort was made to notify the police that the matter of the stolen vehicle had been resolved, and Thurman, who was unaware of the Martin Burks - Oden & Sims error, was arrested and incarcerated on the basis of the stolen vehicle report two days after the matter had been resolved. Unlike the case at bar, Thurman's arrest and incarceration were not, as a matter of law, merely the result of an "honest mistake."

We take this opportunity to amplify and reaffirm our holding in Oden & Sims Used Cars v. Thurman, 165 Ga.App. 500 (3), 301 S.E.2d 673 (1983). A minority of this court now argues that the decision in Division 3 of the opinion may be construed as authority for the proposition that there is such a tort as "negligent false imprisonment," and thus is mistaken. This argument has as its foundation the decision in Stewart v. Williams, 243 Ga. 580(1), 255 S.E.2d 699 (1979), in which our Supreme...