Dixon v. S. S. Kresge, Inc., 44163
| Decision Date | 25 April 1969 |
| Docket Number | 2,No. 44163,3,Nos. 1,44163,s. 1 |
| Citation | 169 S.E.2d 189,119 Ga.App. 776 |
| Parties | William DIXON v. S. S. KRESGE, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In an action arising out of the detention of the plaintiff for suspected shoplifting, the determination of whether the defendant, through its agents, acted with reasonable prudence was for the jury, where the facts as to such issue were in dispute.
2. Two charges enumerated as error contained correct principles of law and were not error for the reasons assigned.
William Dixon brought his action for damages in the Fulton Superior Court against S. S. Kresge, t/a K-Mart. The complaint alleged that on May 21, 1966, the plaintiff, accompanied by one Matthews, entered a store owned and operated by the defendant; that they stopped at the hat department in the store where Matthews began trying on hats, while the plaintiff went to the sporting goods department; that the plaintiff decided not to purchase any goods and he and Matthews proceeded towards the exit where an employee of the defendant grabbed hold of the plaintiff's arm and told him he was under arrest; that the employee, who was a security guard, marched both the plaintiff and Matthews through the store towards the back and into an office; that the door of the office was closed and locked and that the guard searched both the plaintiff and Matthews; that after detaining the plaintiff for approximately 45 minutes the plaintiff was told he was free to go. The complaint further alleged that the employee of the defendant had no reasonable grounds to believe that the plaintiff was shoplifting and that he at no time conducted himself so as to cause a reasonably prudent person to believe he was or had been shoplifting that the acts of the defendant's employees caused him great embarassment and humiliation and that the defendant acted in bad faith, without probable cause. The complaint as amended sought damages and punitive damages in the amount of $75,000.
The defendant answered, denying the material allegations of the petition, and both parties filed interrogatories seeking additional information.
The case came on for trial at which the following evidence was adduced. The plaintiff testified: that, after he and Matthews thews entered the store, Matthews started trying on hats and they went to the sporting goods department; that they then started to leave and right before they got to the cash registers the plaintiff realized that Matthews had a hat on his head. He then told Matthews he was going over to the grocery department for a carton of cigarettes and at this time he and Matthews were arrested. They were taken to an office at the rear of the store where they were searched and questioned. After some 45 minutes to an hour, the plaintiff was told that he was free to go.
The security officer of the defendant store, A. P. Guyton, testified that he observed the plaintiff and Matthews when they entered the store. He related that they went straight to the rack where hats were displayed and that Matthews began trying on hats while the plaintiff stood behind him talking and was no more than 4 feet away from him; that Matthews tore the ticket off the hat which he had just tried on, threw the ticket down, put the hat on his head and the two of them walked to the rear of the store into the sporting goods department.
Guyton testified that he watched them come out of the store into the opening for patrons who do not make a purchase and that when they started for the door he stopped them. He further testified that Matthews resisted strenuously, was searched and was sent to the city jail. Guyton denied that he either took the plaintiff into custody or searched him and related that he merely asked the plaintiff to come back to the office with them.
Although the plaintiff testified that the door had been locked, Guyton and Frye, a manager of the store, denied this. There was conflicting testimony by Frye and Guyton as to whether the plaintiff was told he might go or was merely allowed to go.
At the conclusion of the evidence the plaintiff moved for a directed verdict which was denied. The jury returned a verdict for the defendant and the plaintiff filed a motion for new trial and a motion for judgment notwithstanding the verdict. The trial judge overruled both these motions.
The plaintiff in his appeal to this court enumerated as error the denial of his motion for directed verdict, the overruling of his motion for new trial and the overruling of the judgment notwithstanding the verdict. The plaintiff also enumerated as error two portions of the judge's charge: the first in which the judge charged the provisions of Code Ann. § 105-1005 (Ga.L.1958, p. 693), and the second in which the judge charged the provisions of Code Ann. § 26-2641 (Ga.L.1957, pp. 115, 116).
E. A. Deal, Robert W. Cagle, Atlanta, for appellant.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, H. A. Stephens, Jr., Atlanta, for appellee.
Formerly, the rule has been '(t)o sustain an action for false imprisonment it is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful.' Lowe v. Turner, 115 Ga.App. 503, 506, 154 S.E.2d 792, 795. However, Code Ann. § 105-1005 states that where a person reasonably thought to be engaged in shoplifting is detained or arrested, there shall be no recovery in an action for false arrest or imprisonment 'where it is established by competent evidence that the plaintiff had so conducted himself, or behaved in such manner, as to cause a man of reasonable prudence to believe that such plaintiff was committing the offense of shoplifting, as defined by the Statute of this State.' Ga.L.1958, P. 693. Thus, it is apparent that under the law probable cause, or more accurately 'reasonable' cause, is the determinative factor in a case of this nature.
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