Fisher v. Kentucky Fried Chicken, 70546

• Decision Date: 11 July 1985
• Docket Number: No. 70546,70546
• Citation: 333 S.E.2d 877,175 Ga.App. 542
• Parties: FISHER v. KENTUCKY FRIED CHICKEN, et al.
• Court: Georgia Court of Appeals

Page 877

333 S.E.2d 877

175 Ga.App. 542

FISHER v. KENTUCKY FRIED CHICKEN, et al.

No. 70546.

Court of Appeals of Georgia.

July 11, 1985.

Rehearing Denied July 23, 1985.

Alex D. McLennan, Claude R. Ross, Atlanta, Melvin G. White, College Park, for appellant.

Oliver B. Dickins, Jr., Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Malicious Prosecution--Summary Judgment. The facts giving rise to this appeal show that in June 1980, the appellant, Stephen Fisher, was employed by Kentucky Fried Chicken as an assistant store manager. As store manager or assistant store manager, that person by store policy was required to secure the accumulated cash from the day's business and either deposit it that day if sufficiently large in amount to warrant immediate deposit or to place it in the safe and make a deposit of the previous day's accumulation the following morning if business was slower as was customary during weekdays. Apparently during the days of June 15, 16, and 17, 1980, Fisher was not working. Thus, the deposit responsibility lay with the store manager. When Fisher returned to work on Wednesday, June 18, he found three days of accumulated deposits in the safe. He stated that he was upset because the manager had not made the necessary deposits.

For some unexplained reason, Fisher accumulated the cash deposits for Wednesday (June 18) and left them in the safe with all the other deposits that had accumulated. Though he had an opportunity to make a deposit during working hours, he maintained that because of one reason or another, he did not make any deposits on Thursday, Friday, or on the weekend. During the weekend, Fisher removed all or a great part of the accumulated cash amounting to $2,316 and placed the cash in the trunk of his car. He still made no deposits. He did not work on Monday or Tuesday. On Monday, June 23, the store manager was asked to account for the accumulated missing deposits. Fisher was not available for explanation; therefore, the store personnel were not aware where the money might be. All personnel except Fisher took polygraph examinations and accounted for their activities. The store manager attempted to locate Fisher and left word with Fisher's wife for Fisher to contact the store or the manager. Fisher acknowledged that he thought the inquiry related to the undeposited cash which was still in the trunk of his car.

On Wednesday, June 25, Fisher and his manager and another employee discussed the deposits. At that time, Fisher admitted that he had taken the money from the safe but that he had already made the deposit, a fact that Fisher knew to be untrue. On Thursday, Fisher reported for work and again was asked about the deposit slips for the cash but did not correct the deposit misinformation. He became aware that the manager believed he (Fisher) had taken the money. When he left the store on Thursday, Fisher submitted a letter of resignation and surrendered his store work clothes to his area manager. By this time, Fisher was aware that Kentucky Fried Chicken had commenced an investigation into the status of the missing cash which was still in the trunk of his car, but which he had by now twice stated that he had deposited. On Friday, Fisher finally went to a bank different from the one he usually made deposits and deposited the entire accumulation of cash to the account of Kentucky Fried Chicken.

Fisher's area manager, Robert Jones, was aware by Friday, June 28, that Fisher had kept the money in his possession for at least a week and had twice lied by asserting that the money had been deposited. Jones had contacted his superiors and related these facts including that as of noon Friday the cash had finally been surrendered by Fisher. Jones was informed that prosecution for theft by taking was authorized. Fisher was directed to report to a police station late on Friday evening for further questioning. He admitted that he knew the money belonged to Kentucky Fried Chicken and that he had made a serious mistake by taking the money from the safe and placing it in his car for a week without making an accounting or depositing the same. The police officer in charge of the investigation indicated to Jones that a crime had been committed and that arrest and charges were warranted. Jones then swore out a warrant for theft by taking and Fisher was arrested on that charge. Subsequently at a recorder's court, the recorder found insufficient direct evidence to support the charge of theft and ordered the charges dismissed. Fisher then filed a complaint alleging malicious prosecution, false arrest, false imprisonment and slander. After answer and appropriate discovery, Kentucky Fried Chicken and Jones moved for summary judgment which motion was granted by the trial court. It is this grant of summary judgment that forms the basis for this appeal by Fisher. Held:

Fisher enumerates four asserted errors. However, the basis of each is that because Fisher returned the money before a warrant was procured for his arrest, the warrant as well as the attempted prosecution for theft by taking was not based upon probable cause but out of personal malice. Fisher in essence urges that there was evidence that would have authorized a jury to conclude that he (Fisher) had no intent to steal the money and because a jury could have found the lack of an intent there remained genuine issues of fact that would preclude the grant of summary judgment. More specifically he argues the facts show that he could have been negligent or...