J. C. Penney Co. v. Green

• Decision Date: 03 July 1963
• Docket Number: No. 40064,No. 2,40064,2
• Citation: 108 Ga.App. 155,132 S.E.2d 83
• Parties: J. C. PENNEY COMPANY v. Robby J. GREEN et al
• Court: Georgia Court of Appeals

Page 83

132 S.E.2d 83

108 Ga.App. 155

J. C. PENNEY COMPANY v. Robby J. GREEN et al.

No. 40064.

Court of Appeals of Georgia, Division No. 2.

July 3, 1963.

Syllabus by the Court

The petition failed to set forth a cause of action against the defendant J. C. Penney Company for false imprisonment, and the trial court erred in overruling general demurrers of that defendant thereto.

Greene, Neely, Buckley & DeRieux, Harry L. Greene, Atlanta, for plaintiff in error.

Gerstein & Carter, Joe W. Gerstein, Edward E. Carter; Roland Neeson and

Orville G. Harrington, Atlanta, for defendants in error.

L. Ben Oglesby, in pro. per.

FRANKUM, Judge.

Robby J. Green sued J. C. Penney Company, Fred Wright, Ben Oglesby, H. A. Koehler, and North Atlanta Merchants Association, Inc. for damages. J. C. Penney Company filed general and special demurrers to the petition which were overruled by the trial court, and the assignment of error here is to that judgment. The sole question presented by his assignment of error is whether the petition was sufficient to state a cause of action against J. C. Penney Company. Insofar as material to a consideration of this question, the petition alleged that the defendant Oglesby was a constable of a militia district in Fulton County and was also an officer, director and stockholder of North Atlanta Merchants Association, Inc., whose principal business was that of a collection agency; that the defendant Koehler was ex-officio justice of the peace of a militia district in DeKalb County and was also a director and stockholder of North Atlanta Merchants Association, Inc.; that while Oglesby was not a constable of DeKalb County, he from time to time served warrants for Koehler; that the defendant Wright was also a constable of a militia district in Fulton County, but he was not an authorized constable in DeKalb County; that defendant Oglesby was contacted by a store manager of the defendant J. C. Penney Company 'concerning the collection of bad debts evidenced by dishonored checks' which had been received by the defendant company at one of its stores located in DeKalb County; that defendant Oglesby explained to the manager of the defendant company the method employed by North Atlanta Merchants Associations, Inc. in collecting a bad check, which method included the swearing out of a criminal warrant for the party whose name appeared on the check, the arrest of the party, and allowing him to settle the charge upon the payment of the costs and the amount of the check; that upon being so informed the manager turned over to the defendant Oglesby certain checks, including one dated August 17, 1961, and signed 'Bobby J. Green,' and directed that they be collected in the manner described; that thereafter Oglesby took out a warrant before the defendant Koehler charging the plaintiff with cheating and swindling; that the defendants Oglesby and Wright, armed with pistols, proceeded to the home of the plaintiff where they arrested and detained the plaintiff and restrained him of his liberty against his will, and that when the charges against the plaintiff were tried in the Recorder's Court of DeKalb County, to which court the case was transferred by the defendant Koehler, the judge of said court, after hearing evidence, dismissed the charge against the plaintiff. The petition further alleged that the defendant Oglesby 'acting for and on behalf of defendant J. C. Penney Company' caused the warrant for the plaintiff to be issued without making any effort to ascertain whether the plaintiff was the party who had presented the check, and made no effort to determine if there was any evidence connecting the plaintiff with the check in question; that as a matter of fact the plaintiff had never signed the check in question nor had anyone, acting on his behalf, made, issued, or presented the check to the defendant J. C. Penney Company or to anyone else, and that by reason of the conduct of the defendants plaintiff had been greatly injured and damaged in his reputation and brought into public disgrace causing him mortification and mental anguish.

1. While some of the allegations of the petition are appropriate to an action for malicious prosecution, properly construed the action is one for false arrest. This is true because the petition clearly alleges in paragraph 8 that the defendant Koehler, acting as justice of the peace, issued the warrant at the request of defendant Oglesby without first having Oglesby swear to the truthfulness of the allegations in the affidavit. No judge is authorized to issue a warrant for the arrest rest of any offender against the penal laws of this State unless it be issued on his own knowledge or on the information of others given to him under oath. Code § 27-102. No contention is made that the warrant was issued on the personal knowledge of the officer issuing it. 'Before an alleged affidavit can become the basis of a legal proceeding it must appear that an oath was actually administered to the affiant, or that something was done by the affiant...