Davis v. Zions Cooperative Mercantile Institution ( 1973 )

HENRIOD, Justice.

Appeal from a summary judgment dismissal of a false arrest complaint. Affirmed, with costs to defendant.

The uncontradicted facts in this case developed in the discovery process under the rules indicate that plaintiff and her sister went to defendant’s store, looked at dresses, took four into a dressing room, where her sister stole one and shoved it into a bag, returning three to the clerk, making the mistake of leaving the hanger of the fourth on a hook, which an alert clerk noticed. The latter called a female security guard, who accompanied plaintiff and her sister to another part of the store, confronted them with the evidence and finally had both arrested for shoplifting. The sister was convicted and paid a fine. Plaintiff throughout said absolutely nothing to indicate she was not particeps to the theft until after she and her sister were booked in jail. They were released in less than an hour on bail, without any protestation of innocence.

Under these facts the plaintiff asks $180,-000 on the basis of an affidavit and some rather ambulatory answers in a deposition, which were not material or over-unimpressive.

There appears to be no genuine issue of fact here. Unquestionably, the store had probable cause in effecting the detention of both sisters without any legal requirement to respond in damages for an unwarranted false arrest under Utah legislation,¹ and that the trial court’s decision is supported by respected authority,² — even where the person detained is not found guilty, as was the case here.

ELLETT and CROCKETT, JJ., concur.

1 . Title 77-13-30, 32, Utah Code Annotated 1953 (Pocket Supp.).

2 . 55 Minnesota Law Review 825 (1971); State v. Eastmond, 28 Utah 2d 129, 499 P.2d 276 (1972); Dillon v. Carrington, 169 Colo. 242, 455 P.2d 201 (Colo.1969).