Gustafson v. Payless Drug Stores Northwest, Inc. , 269 Or. 354 ( 1974 )

HOLMAN, J.,

dissenting.

The majority recites numerous facts as being relevant to the issue of probable cause which could not possibly have been known to the store detective. Examples are the necessity of plaintiff to meet her husband at a prescribed time and the intense discussion which she was having with her mother-in-law concerning payment for some other articles. These facts are relevant to whether plaintiff forgot to pay for the cigarettes, but they are absolutely irrelevant to whether the detective had probable cause to prosecute plaintiff for shoplifting and give an unwarranted cast favorable to the majority’s conclusion which is not merited.

We have previously held that the removal of merchandise from a store without paying for it is usually a basis for probable cause. Delp v. Zapp’s Drug and Variety Stores, 238 Or 538, 395 P2d 137 (1964). I would apply this rule under the circumstances here. Malicious prosecution cases are not favorites of the law because law enforcement depends in large part upon the complaints of citizens. It is well known that shoplifting is a national problem which causes businesses and, thus, customers loss of serious sums of money. The majority would make it impractical in most instances for security personnel to safely arrest and prosecute anyone for shoplifting. The policy to which the majority subscribes requires the store owner to walk too fine a line to be practical.

I would rule that defendant had probable cause.

Bryson and Langtry, J. J., concur.