Godwin v. Gibson's Products Co. of Albany, Inc. , 121 Ga. App. 59 ( 1970 )

Jordan, Presiding Judge.

This is an action in two counts against a discount store seeking damages for false imprisonment in Count 1, and under Count 2 for malicious prosecution. The pleadings alleged that the appellant-plaintiff was ■ shopping in the defendant’s place of business on a named date when two of its employees, acting within the scope of their employment, forcibly and against his will and consent took him into custody, detained him and deprived him of his right to freedom and locomotion.

On motion for summary judgment for the defendant-appellee, after the consideration of certain depositions, affidavits, and the stipulation between the parties, the court granted the motion as to Count 1 of the complaint.

We affirm. The following facts are shown without dispute: (1) Plaintiff Godwin was seen by an employee of defendant “squatting down” in an area removed from the cosmetics counter and placing a bottle of cologne or perfume inside his coat under his arm; (2) The floorwalker approached him, made a remark about shoplifting and asked him to come to the office at the rear of the store; (3) Plaintiff Godwin accompanied the floorwalker without force to the office where he told the manager that “I wouldn’t do it again.” Upon request he showed his driver’s license for identification. A statement in the nature of a confession was then prepared by the manager, plaintiff was asked to read it and sign if correct: (4) Plaintiff voluntarily signed the statement. Police were called and arrived within 30 or 40 minutes from the time plaintiff was taken to manager’s office. He was then taken to police station and a warrant was obtained approximately 2 hours after plaintiff was first detained at the store; (5) No force was used on plaintiff nor was he threatened in any manner.

This factual situation demanded a judgment in favor of the defendant store under the provisions of Code Ann. § 105-1005 which reads as follows: “Whenever the owner or operator of a mercantile establishment or any agent or employee of such owner or operator shall detain or arrest, or cause to be detained or arrested, any person reasonably thought to be engaged in shoplifting and, as a result of such detention or arrest, the person so detained or arrested shall institute suit for false arrest or false imprisonment against such owner, operator, agent or employee, no recovery shall be had by the plaintiff in such action 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, at or immediately prior to the time of such detention or arrest, or provided that the manner of such detention or arrest and the length of time during which such plaintiff was detained was under all of the circumstances reasonable.”

That plaintiff’s conduct was such as to cause a man of reasonable prudence to believe that he was committing the offense of shoplifting is amply borne out by the fact that upon confrontation he voluntarily admitted same, orally and in writing. Certainly the manner of the detention and the length of time during which plaintiff was detained was under these circumstances not only reasonable but demanded by the defendant’s employees in the proper discharge of their duties. See Turner v. Bogle, 115 Ga. App. 710, 713 (155 SE2d 667) where this court cited Code Ann. ¡§ 105-1005 and applied the standard set by it to an action for malicious prosecution, and Dixon v. S. S. Kresge, Inc., 119 Ga. App. 776 (169 SE2d 189), where the action was for false arrest, and S. S. Kresge Co. v. Carty, 120 Ga. App. 170 (169 SE2d 735) where the action was for assault and battery, tortious misconduct and false imprisonment—all arising out of situations of shoplifting or suspected shoplifting.

The trial court correctly sustained defendant’s motion for sum- . mary judgment as to Count 1, the only question raised by this appeal.

Bell, C. J., Hall, P. J., Eberhardt, Deen, Quillian and Whitman, JJ., concur. Pannell and Evans, JJ., dissent. Submitted October 7, 1969 Decided January 28, 1970. Malone, Drake <&, Malone, Thomas Wm. Malone, for appellant. Watson, Keenan, Spence •& Lowe, O. Stuart Watson, for appellee.