Melton v. LaCalamito

• Decision Date: 17 June 1981
• Docket Number: No. 61405,61405
• Citation: 282 S.E.2d 393,158 Ga.App. 820
• Parties: MELTON et al. v. LaCALAMITO.
• Court: Georgia Court of Appeals

Page 393

282 S.E.2d 393

158 Ga.App. 820

MELTON et al. v. LaCALAMITO.

No. 61405.

Court of Appeals of Georgia.

June 17, 1981.

George H. Connell, Jr., Atlanta, for appellants.

Gregg Loomis, Atlanta, for appellee.

POPE, Judge.

Appellee filed this action against appellants Melton and U-Haul Co. of Western Georgia, Inc. (U-Haul) seeking damages for malicious prosecution and false imprisonment. A jury returned a verdict in favor of appellee in the amount of $10,000 actual damages and $5,000 punitive damages. Appellants enumerate as error the trial court's denial of their several motions for directed verdict. Appellants also enumerate several instructional deficiencies and contend that the evidence was insufficient to support the verdict.

On May 29, 1976 appellee rented a trailer and hitch from a U-Haul station in New Jersey in order to facilitate his move to Atlanta. On May 30 appellee, together with his parents and younger brother, arrived in Atlanta by car with the trailer and hitch attached thereto. After the trailer had been unloaded, appellee drove the rental equipment to a "U-Haul Moving Center" on Ponce de Leon Avenue in Atlanta where he turned the equipment over to Melton. When the trunk of the car was opened so that the hitch could be detached, Melton saw two U-Haul furniture pads (or blankets) "kind of on the spare tire and tucked in behind it." Appellee refused to surrender the pads to Melton, explaining that his father had been a U-Haul dealer in New Jersey and that the pads had been in his family's possession for more than 10 years. He further explained that after his father had decided to discontinue his relationship with U-Haul, the company removed its equipment but left the two furniture pads, which had since that time been carried in the trunk of the car. Although the rental agreement disclosed that no furniture pads had been rented by appellee, Melton insisted that the pads be surrendered to him before he would return appellee's deposit. Appellee refused and Melton called the police.

The police officer who responded to Melton's call testified as follows: "A. When I arrived at the scene, Mr. Melton, who was the manager or the owner of the place, advised me that he had a car that had several of the company's blankets and that they did not sell blankets, that he had tried to get the blankets back from the guy that was driving the car and the person would not give the blankets back, and he advised me at that point it was company policy to call the police ... Q. Now, when you talked with (appellee), what did you say and what did he say? A. I asked him about what the complainant had advised me of, that the blankets were company property, and he stated to me that they were his property or his family's property. The owner or the manager of the U-Haul rental outlet advised me that they did not sell blankets, that the only reason a person should be in possession of said blankets (was) if they rented them. The subject (appellee) advised me that he did not have a rental agreement. Again, he advised me that they were property of the family, at which point Mr. Melton, the manager of the U-Haul rental outlet, advised me again that it was company policy they did not sell ... anything. The only way a person should have the blankets or could come by the blankets (was) with a rental agreement. I advised the subject ... that all we wanted to do was give the company their blankets back. Mr. Melton stated that he didn't want to go to court or he didn't want to see the guy locked up or anything. He just wanted his company's blankets back.... Q. Now, when you said all you wanted was to get U-Haul's property back, what did he say? A. He advised me he wasn't going to return the property. Again, he said it was property of his family.... Since we weren't able to get Mr. LaCalamito to return the blankets to the company, to U-Haul, we had no choice but to make an arrest."

Appellee's mother, a New Jersey law enforcement officer, arrived at the scene shortly after the police and supported appellee's assertion as to the ownership of the pads by also explaining to both Melton and the police how the pads came to be in her family's possession. Nevertheless, appellee was arrested and charged with possession of stolen goods; he spent the next several hours in jail. Following a municipal court hearing on the following day, the charge against appellee was dismissed.

1. Appellants first enumerate as error the trial court's denial of their motion for directed verdict on the ground that there was no agency relationship shown between Melton and U-Haul. The evidence showed that Melton was "the owner/operator" of the U-Haul Moving Center under contract with appellant U-Haul. Although he was self-employed under the terms of the contract, Melton testified that he had standing instructions from U-Haul to take back in a peaceful manner such things as he might perceive to be U-Haul property. Pursuant to these instructions, Melton called the police when appellee refused to surrender the furniture pads.

"The ... question presented is whether (U-Haul) is liable in view of Code § 4-312, which provides 'The principal shall not be liable for the wilful trespass of his agent, unless done by his command or assented to by him.' The Supreme Court has held that Code § 4-312 must be construed in pari materia with Code § 105-108 and, so construed, means that the principal 'may be liable if the trespass was committed by his implied command or implied assent; and if committed within the scope of the agency, the implication will arise as a matter of law.' Planters Cotton-Oil Co. v. Baker, 181 Ga. 161, 163, 181 S.E. 671 ((1936))." Ford Motor Co. v. Williams, 108 Ga.App. 21, 24, 132 S.E.2d 206 (1963), rev'd on other grounds, 219 Ga. 505, 134 S.E.2d 32 (1963). Notwithstanding Melton's status as an independent contractor, the evidence is undisputed that his actions in attempting to recover the furniture pads were directed by U-Haul. Compare Brown v. Triton, Inc., 115 Ga.App. 785, 156 S.E.2d 200 (1967), wherein the individual defendant did not have authority from the corporation to swear out a warrant charging a person with a crime. Therefore, appellants' first enumeration is without merit. Code Ann. § 81A-150(a); see Colonial Stores, Inc. v. Holt, 118 Ga.App. 826, 166 S.E.2d 30 (1968); Central of Ga. R. Co. v. Dabney, 44 Ga.App. 143(3), 160 S.E. 818 (1931).

2. Appellants also cite as error the trial court's denial of their motions for directed verdict challenging the sufficiency of the evidence. Code Ann. § 105-801 defines malicious prosecution as "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted...."

(a) Appellants contend that Melton's action in calling the police was insufficient to support a finding of malicious prosecution since he did not direct that appellee be arrested. "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 (Duchess Chenilles, Inc. v. Masters, 84 Ga.App. 822, 827, 67 S.E.2d 600 (1951)); in the latter case there is not. Hammond v. D. C. Black Inc., 53 Ga.App. 609, 186 S.E. 775 (1936). It is clear, though, that the initiation of the criminal action need not be expressly directed by the party to be held liable. Webb v. Prince, 62 Ga.App. 749, 752, 9 S.E.2d 675 (1940)." Ginn v. C. & S. Nat. Bank, 145 Ga.App. 175, 178, 243 S.E.2d 528 (1978).

The rule applicable in a situation such as that presented in this case is stated in W. Prosser, Law of Torts § 119 at 837 (4th ed. 1971): "If the defendant (here Melton) 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."

The testimony shows that Melton indicated to the police that he did not want to go to court or to see appellee jailed. Nevertheless, during a period of discussion lasting 30 to 40 minutes, Melton continued to insist on the surrender of the furniture pads as property belonging to U-Haul. Since appellee refused to surrender the pads, the police "had no choice but to make an arrest." Under these circumstances, the jury was authorized to conclude that Melton's insistance that the pads were U-Haul property was the determining factor leading to appellee's arrest and prosecution. See Conley v. Troncalli Motor Co., 150 Ga.App. 723(1), 258 S.E.2d 533 (1979); Ginn v. C. & S. Nat. Bank, supra.

(b) Appellants also contend that there was probable cause to believe appellee did not acquire the furniture pads in a lawful manner. In malicious prosecution actions "(w)ant of probable cause is a question for the jury, under the direction of the court. The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court." Hearn v. Batchelor, 47 Ga.App. 213, 214, 170 S.E. 203 (1933); see Day Realty Associates v. McMillan, 247 Ga. 561, 277 S.E.2d 663 (1981). The material facts in this case were essentially undisputed. Therefore, whether or not probable cause existed was for determination by the court. Ayala v. Sherrer, 135 Ga.App. 431,...