Bi-Lo, Inc. v. McConnell, BI-L
| Decision Date | 13 March 1991 |
| Docket Number | BI-L,No. A90A1939,INC,A90A1939 |
| Citation | 404 S.E.2d 327,199 Ga.App. 154 |
| Parties | v. McCONNELL. |
| Court | Georgia Court of Appeals |
Whitehurst & Frick, Stephen P. Riexinger, Scott A. Wharton, Atlanta, for appellant.
George L. Williams, Jr., Walter G. Sammons, Jr., Warner Robins, for appellee.
The appellant, Bi-Lo, Inc., brought criminal charges against one of its employees, the appellee herein, for shoplifting a soft drink. See generally OCGA § 16-8-14. The appellee was tried and acquitted of that charge and then instituted the present action for malicious prosecution. The jury returned a verdict in his favor for $30,000, and this appeal followed.
As the appellee, who was 17 years of age at the time, was refilling a soft drink machine located in front of the store, he noticed that one of the Coke cans was badly damaged and would not fit into the machine. After he had finished filling the machine, he opened this can and began drinking from it. He explained at trial that he had seen other employees consume damaged soft drinks in this manner and was under the impression that such drinks would "be thrown out anyway." He testified that he was openly drinking the Coke as he returned the vending machine key to the employee on duty at the customer service desk.
After returning the key to the customer service desk and returning the remaining soft drinks to stock, the appellee went inside the dairy cooler, which was located outside his normal work area, to finish drinking the Coke. While there, he was discovered by the store manager, who exclaimed upon seeing him, "Aha, I caught you, didn't I?" The appellee was subsequently summoned to the manager's office, where he was asked whether he had paid for the drink. When he responded that he had not, he was asked no further questions but was immediately informed by the manager that the police had been called and that he would be taken downtown. The appellee testified that he was upset, scared, and crying at this time and that he asked the manager if he could call his parents, but that the manager replied, "No. People like you don't have any rights."
There was testimony that the appellant was experiencing a serious problem with employee theft and shoplifting and had decided to take a strong stance against such conduct. The appellant's "Director of Loss Prevention" maintained at trial that the profit margin at the store in question was only one cent on the dollar and that it would consequently take fifty dollars of sales to cover the loss of a 50-cent can of Coke. Held:
1. The appellant enumerates as error the denial of its motion for summary judgment. That ruling was, however, rendered moot by the jury's verdict. See Brown Realty Assoc. v. Thomas, 193 Ga.App. 847 (1), 389 S.E.2d 505 (1989).
2. The appellant contends that it was entitled to a directed verdict because the evidence established without dispute that it had probable cause to believe the appellee was guilty of shoplifting. We disagree.
Voliton v. Piggly Wiggly, 161 Ga.App. 813, 814, 288 S.E.2d 924 (1982). " " Melton v. LaCalamito, 158 Ga.App. 820, 824, 282 S.E.2d 393 (1981).
While the immediate appearances in this case may have been such as to lead a reasonable person in the store manager's position to believe that the appellee had acted with criminal intent in taking the soft drink, even the most cursory investigation would have...
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...inaccurate information within the meaning of Martin, supra. Additionally, we find distinguishable the cases of Bi-Lo v. McConnell, 199 Ga.App. 154, 404 S.E.2d 327; Atlantic Zayre v. Meeks, 194 Ga.App. 267, 390 S.E.2d 398; Wilson v. Wheeler's Inc., 190 Ga.App. 250, 378 S.E.2d 498; and Volito......
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