Opinion
36827.
DECIDED SEPTEMBER 10, 1957.
Tort; false arrest. Before Judge Shaw. Fulton Superior Court. June 24, 1957.
Sidney Parks, Parks Eisenberg, for plaintiff in error.
Sam F. Lowe, Jr., Smith, Field, Doremus Ringel, contra.
For a person to be liable for false arrest he must either make, command, direct or request that such arrest be made, but it is not necessary that he do so in express terms.
DECIDED SEPTEMBER 10, 1957.
M. S. Jacobs brought a suit against Angus Saul Owens, Jr., to recover damages by reason of facts alleged in the petition as amended which were in substance that: the defendant is owner, proprietor, and operator of a place of business located at 889 Gordon Street, S.W., Atlanta; the business is a retail merchandise store engaged mainly in the retail sales of ladies' clothing; the store is open for business and the public is invited; Mrs. Jacobs, who the plaintiff believes is the defendant's wife, was an employee of the store acting as manager of the store; the plaintiff entered the store for the purpose of purchasing merchandise; the plaintiff purchased several articles from one of the defendant's employees; the plaintiff paid cash for the articles and then waited for them to be gift-wrapped; while the plaintiff waited for the articles to be gift-wrapped he was standing in a position approximately twenty-five feet from the front door of the store; Mrs. Jacobs called the Atlanta Police Department and notified them that a man was holding a gun on one of the employees and asked that the police be sent right away; the police came and as they entered Mrs. Jacobs pointed to the plaintiff and in effect, said "That's the man." As the result of the telephone call and the pointing out of the plaintiff by Mrs. Jacobs the police officers approached the plaintiff, seized him and the packages he had with him, and proceeded to search the plaintiff as if he was a common criminal; the plaintiff was so overcome by shock and fear at the approach of the police and at their actions after he had been pointed out that he could not even speak to the policemen to explain that he was merely waiting for his packages to be wrapped; while the plaintiff was being searched there was a large group of people both inside and outside the store all of whom could see the plaintiff; after the policemen had searched and seized him they determined that he was only waiting for his packages; Mrs. Jacobs was acting within the scope of her employment; that the plaintiff was entitled to protection from the tortious misconduct of the defendant's agents and employees and it is this failure of the defendant to provide such protection, which resulted in the injuries alleged in the petition.
The defendant filed general and special demurrers which were overruled and he excepts.
1. The defendant insists that he is not liable because his employee only summoned the police and did not direct, request, or command the police to search the plaintiff. It is true that for a person to be liable for false arrest he must either make, command, request, or direct the arrest, but it is not necessary that he direct it in express terms. Webb v. Prince, 62 Ga. App. 749 ( 9 S.E.2d 675); Gordon v. Hogan, 114 Ga. 354 ( 40 S.E. 229). In the present case it was alleged that: the defendant's employee called the police and informed them that the plaintiff was holding a gun on another employee; upon the arrival of the police she pointed to the plaintiff and said, in effect, "that's the man"; as a result of the telephone call and pointing out of the plaintiff the police seized and searched him. Under authority of Webb v. Prince, supra, the above allegations are tantamount to an allegation that the defendant's employee directed the arrest of the plaintiff, and set forth a cause of action.
The petition also set forth a cause of action based on the defendant's failure to protect the plaintiff as a customer, lawfully on the defendant's property, from injury caused by the misconduct of the defendant's employee. Hazelrigs v. J. M. High Co., 49 Ga. App. 866 ( 176 S.E. 814); Sims v. Miller's, Inc., 50 Ga. App. 640 ( 179 S.E. 423); Southern Grocery Stores, Inc. v. Keys, 70 Ga. App. 473 ( 28 S.E.2d 681); Colonial Stores, Inc. v. Coker, 74 Ga. App. 264 ( 39 S.E.2d 429). The general demurrer is without merit.
2. The special demurrers filed by the defendant show no merit and the judge properly overruled them.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.