139 S.E.2d 408


40680.Court of Appeals of Georgia.

The trial court in this case properly granted the defendant’s motion for summary judgment and entered judgment in the defendant’s favor.

Action for damages; false imprisonment. DeKalb Superior Court. Before Judge Dean.

The plaintiff sued the W. T. Grant Co., a corporation engaged in operating a retail department store, for false imprisonment allegedly committed by the defendant’s agent. In its answer the defendant denied all the material allegations of the petition. Subsequently the defendant took plaintiff’s deposition, and in due course filed a motion for summary judgment. Following a hearing on the motion, the trial judge entered an order granting it. The plaintiff excepts to this judgment of the trial court granting the defendant’s motion for summary judgment.

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Insofar as relevant to the decision here the petition alleges that the defendant’s agent “with force of arms . . . wantonly and wilfully laid hold of the plaintiff and . . . in plain view of divers persons, stopped plaintiff as she left the store and . . . accused plaintiff with having stolen goods in her possession . . . did accuse plaintiff of having taken articles [from defendant’s store] . . . without paying for them” and that “plaintiff was restrained from leaving the front of the [store] . . . and her pocketbook was searched.” The defendant in its answer denied all of the material allegations of the petition.

The evidence shows: That plaintiff, Charlotte Abner, along with two of her aunts, Mrs. Lottie Cassel and Mrs. Ruth Boone, Sr., on or about April 20th, 1963, at the approximate hour of one o’clock p. m., entered defendant in error’s store (W. T. Grant Company). They spent about fifteen minutes in the store. They examined some handbags, one of the aunts picking up a bag and inspecting it. They did not carry any of the bags away from the area. They then left the store.

The plaintiff, Mrs. Abner, testified specifically: that when she was about five feet out of the store and on the public sidewalk the agent “tapped” plaintiff on the shoulder “just to attract her attention”; there was no other touching of her person; the agent asked her if she had bought anything in the store; she answered, “`No, why?’ He said, `What about that bag in your hand,’ and just pointed his finger at my handbag. I just held it up and said, `This is mine.’ He didn’t say a word, he just kept looking at it. I opened it and said, `See’, because I had my usual things in it. As I did that, he just give me a real dirty look and turned around, didn’t say a word, and walked back in the store.” When asked if that was everything that transpired, plaintiff answered, “Yes.” The agent did not tell her that she could not leave.

Gower, Llorens Henritze, Walter M. Henritze, Jr., for plaintiff in error.

Smith, Ringel, Martin, Ansley Carr, H. A. Stephens, Jr.,

BELL, Presiding Judge.

1. There is some basic disagreement

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among the several judges of this court on the question whether an invitee, after departing the invitor’s premises, ceases to be an invitee sufficiently to relieve the employer from liability to the customer for slander occurring by the employee’s use of insulting and opprobrious words tending to humiliate and mortify the customer or wound his feelings. See Zayre of Atlanta, Inc. v. Sharpton, 110 Ga. App. 587 (139 S.E.2d 339), Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572 ( S.E.2d ), and the special concurrences of Judges Jordan and Eberhardt. However, this difference in view is not involved in this case. It is completely immaterial here whether the words or the actions of the defendant’s agent occurred within or without the premises of the defendant, for they are in combination insufficient as a matter of law to constitute an actionable tort whatever their situs.

From the factual summary it is to be seen that the agent merely asked the plaintiff “Did you buy anything in this store . . . what about that bag in your hand?” The word “buy” imports purchase and sale and there is nothing insulting or opprobrious about that. The action of opening the pocketbook and offering it for inspection was purely voluntary on plaintiff’s part. By plaintiff’s admission the agent did not say another word after that. Under this status of affairs, there was no violation of plaintiff’s legal rights and thus no tort. See Code § 105-101 and Davis v. Johnson, 92 Ga. App. 858 (90 S.E.2d 426).

2. The plaintiff in her brief contends that her action is based on the common law tort of false imprisonment.

In Code § 105-901, false imprisonment is defined as the “unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty.” The only essential elements necessary to create liability are the detention and its unlawfulness. Waters v. National Woolen Mills, 142 Ga. 133 (82 S.E. 535); Conoly v. Imperial Tobacco Co., 63 Ga. App. 880 (12 S.E.2d 398). Malice and want of probable cause need not be shown. Westberry v. Clanton, 136 Ga. 795
(72 S.E. 238); Vlass v. McCrary, 60 Ga. App. 744 (5 S.E.2d 63).

“The restraint constituting a false imprisonment may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not

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submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.” Sinclair Refining Co. v. Meek, 62 Ga. App. 850, 854 (10 S.E.2d 76). “A person need not make an effort to escape or to await application of open force (and possibly suffer physical injury) before he can recover . . . [but] there must be actual physical restraint whether by force or fear.” Id., 852-854.

Here the plaintiff’s own testimony refutes the strong allegations of her petition by showing: (1) that there was in fact no detention of her person; and (2) that the words, acts, gestures or the like of the defendant’s agent did not induce any reasonable apprehension on her part that he would use force to effect a confinement upon her. Thus plaintiff has negated effectively her charge that she was falsely imprisoned.

Since plaintiff’s testimony has eliminated from this case every genuine issue as to any material fact, the trial court properly granted the defendant’s motion for summary judgment Scales v. Peevy, 103 Ga. App. 42, 46-47 (2) (118 S.E.2d 193) General Gas Corp. v. Carn, 103 Ga. App. 542, 545 (1) (120 S.E.2d 156).

Judgment affirmed. Jordan, J., concurs. Eberhardt, J., concurs specially.

EBERHARDT, Judge, concurring specially.

I am in full accord with the result reached in this case. For the reasons stated in my special concurrence in Zayre of Atlanta, Inc. v. Sharpton,
ante, I think we are in a hopeless position of conflict in our decisions (following those of the Supreme Court) holding that a corporation cannot be held for a slander uttered by one of its agents, though in the interest of the employer and in the course of the performance of his duties, unless the slander be commanded or ratified, and others (also following those of the Supreme Court) in which we hold a corporate employer liable for “tortious misconduct” of an employee which amounts to slander, without reference to whether it was commanded or ratified. We avoid the conflict now only because it is concluded that the words spoken did not, even by innuendo, amount to an accusation of theft.

I may say that if liability for the “tortious misconduct” by

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an employee is to rest upon the invitee relationship it must follow that there can be no liability for that kind of conduct committed after the relationship has ended. It is hard to conceive of a situation in which it does not end when the customer has voluntarily left the premises.