Dixon v. S. S. Kresge, Inc.

169 S.E.2d 189, 119 Ga. App. 776, 1969 Ga. App. LEXIS 1244

Opinions

Quillian, Judge.

Formerly, the rule has been “to 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 SE2d 792). 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.

The evidence showed that the plaintiff was in the presence of, and talking with, the other party who removed a hat from the counter, tore out the price tag and placed it on his head. Code Ann. § 26-2641 provides that “any person who shall aid, assist or abet another in any of the acts constituting shoplifting shall be deemed guilty of shoplifting.” A witness for the defendant admitted that he did not believe that the plaintiff “of himself” had done any shoplifting or had taken anything. However, a man of reasonable prudence might well have believed that the plaintiff was aiding, assisting or abetting the other party in shoplifting. In defining aiding and abetting this court held in Loeb v. State, 6 Ga. App. 23, 30 (64 SE 338): “The two words together ‘comprehend all assistance given by acts, words, or encouragement, or by presence actual or constructive.’ ”

Probable cause has been defined as “the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of a crime for which he was prosecuted.” Turner v. Bogle, 115 Ga. App. 710, 712 (155 SE2d 667). Judge Eberhardt, writing the opinion in the Timer case, also pointed out (p. 713): “The General Assembly has declared it the public policy of this state that there should be no recovery in an action for false arrest or false imprisonment arising out of the detention or arrest of one who the owner or operator (or their agents or employees) might, by reason of his conduct or behavior, have had reasonable cause to believe was shoplifting.” Here, as required by Code Ann. § 105-1005, there was some evidence, although disputed, that the plaintiff had conducted himself in such manner as to cause a man of reasonable prudence to believe he was shoplifting, as defined by law. Under such circumstances, the determination of this issue was for the jury and will not be controlled by this court.

The trial judge did not err in denying the motion for judgment notwithstanding the verdict and in overruling the motion for new trial.

The two charges objected to were correct statements of law as reiterated in División 1 of this opinion and were adjusted both to the pleadings and to the facts and circumstances of this case. Hence, they were not error for the reasons assigned.

Judgment affirmed.

Bell, P. J., Jordan, P. J., Hall, Eberhardt, Pannell, Deen and Whitman, JJ., concur. Felton, C. J., dissents.