Scott Housing Systems, Inc. v. Hickox , 174 Ga. App. 23 ( 1985 )

Birdsong, Presiding Judge.

The defendant, Scott Housing Systems, Inc., appeals from a jury verdict and judgment for plaintiff, Kenneth D. Hickox. Hickox was an employee of Scott’s and repaired and serviced mobile homes. Scott furnished him with a pickup truck and tools to accomplish his job. Hickox signed a receipt for the truck and the tools and was permitted to take the truck home with him.

On June 10, 1983, the service manager fired Hickox for failure to properly perform his duties. Hickox asked to see Billy Carter, the Vice President of Scott. Hickox said he talked to Carter and was told he was “not doing his work properly.” He asked Carter for his paycheck, and Carter told him “if the damn people didn’t complain that I could have my money.” Hickox replied “[t]hat’s perfectly all right. . . I’m going to go to the house and take the vehicle. Inventory your tools and make sure everything that’s there belongs to you and get my stuff out and I’ll be back within an hour.” Carter denies that Hickox told him he would take the truck to his house. Hickox stated that the tools provided him by Scott were not sufficient and he had to “put a big majority of my tools on the truck. . .

The service manager, Tommy Stalvey, said he was told by the vice president to call the police when they discovered the truck was missing. Stalvey called Detective Harry Watts of the Ware County Sheriff’s Office. Watts said that Stalvey told him that after Hickox was fired he took a vehicle belonging to Scott which was loaded with tools, and “they stated that they would secure a warrant for his arrest.” He wrote this latter statement down and was sure that they told him they would “secure an arrest warrant.” An officer went to Hickox’ house and arrested him and brought the vehicle back to the sheriff’s office. An inventory of the vehicle disclosed that all Scott’s tools were present and Hickox was given his paycheck. Hickox brought this action for false imprisonment and Scott appeals from a jury verdict, and judgment entered on the verdict. Held:

1. “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. In an action to recover damages for illegal arrest or false imprisonment the only essential elements are the arrest or detention and the unlawfulness thereof. Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 885 (12 SE2d 398). Thus, unlike an action for malicious arrest in an action based upon a warrantless arrest, the mere existence of probable cause standing alone has no real defensive bearing on the issue of liability. Collins v. Sadlo, 167 Ga. App. 317, 318 (306 SE2d 390). Generally one “who causes or directs the arrest of another by an officer without a warrant may be held liable for false imprisonment, in the absence of justification” (Webb v. Prince, 62 Ga. App. 749, 752 (9 SE2d 675)), and the burden of proving that such imprisonment lies within an exception rests upon the person making the arrest or causing the imprisonment. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 680 (72 SE 51); accord Sheppard v. Hale, 58 Ga. App. 140 (2) (197 SE 922). “An arrest for a crime may be made by a law enforcement officer . . . without a warrant if the offense is committed in his presence or within his immediate knowledge, if the offender is endeavoring to escape ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.” OCGA § 17-4-20 (a). There is nothing in the evidence to suggest any justification for the arrest and detention of Hickox without a warrant.

Georgia law draws a fine demarcation between cases in which a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relates facts to an official who then makes an independent decision to arrest or prosecute. In the former factual context, there is potential liability for false imprisonment. Melton v. LaCalamito, 158 Ga. App. 820, 822 (282 SE2d 393). Our court has generally held that “one who actively instigates or procures an arrest, without lawful process, is generally regarded as the principal for whom the officer acts, and he may be liable to respond in damages. But one who merely states to an officer what he knows of a supposed offense, even though he expresses the opinion that there is ground for the arrest, but without making a charge or requesting an arrest does not thereby make himself liable for false imprisonment ... it is not necessary that he direct the arrest in express terms. ... It is sufficient that the person alleged to have caused the plaintiff’s arrest should by his conduct and acts have procured and directed the arrest.” Webb v. Prince, supra, p. 752. This was a jury issue, and under the evidence recited above, the jury properly could have found that Scott’s officers and employees were the cause of plaintiff’s arrest without a warrant and his subsequent unlawful detention. Hence, the trial court did not err in denying defendant’s motion for directed verdict, and entering judgment on the jury’s verdict.

2. Detective Watts testified that Stalvey had told him that he would secure an arrest warrant before he directed the arrest of Hickox. Counsel then asked: “Suppose he would have said no would the deputies have gone out there and arrest [ed] Kenneth Hickox? A. No, sir.” Defendant’s counsel objected and moved to strike. His motion was denied. Defendant argues that the court erred “in allowing speculative evidence which went to the heart of the issue. . . .” We do not agree. It is true that the ordinary witness testifies from his knowledge of a fact, and it is proper for the court to refuse to permit a hypothetical question containing an assumption of fact not supported by evidence of record. Green, Ga. Law of Evid. 273, § 111. However, evidence to be admissible must be relevant (OCGA § 24-2-1), and any evidence is relevant which logically tends to prove or disprove a material fact in issue. Kelly v. Floor Bazaar, 153 Ga. App. 163, 165 (264 SE2d 697). This was a circumstance which was relevant to the issue of the procuring cause of the arrest of the plaintiff. Admission of evidence is a matter which rests largely within the sound discretion of the trial court and the Georgia rule favors admission of any relevant evidence no matter how slight its probative value. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360). This enumeration is without merit.

3. Defendant attempts to justify its actions because plaintiff “admitted removing some of [Scott’s] property without authorization and did not return it until some time after he had been arrested and released.” This ground of error was not argued before the trial court but is contained in the brief. It relates to the fact that Hickox admitted that a door which belonged to Scott had been placed in the truck before he took the truck home to “inventory” its contents and remove his tools before returning the truck and its tools to Scott and securing his receipt. We note that Scott evidently was not aware of the missing door which was returned by Hickox after the arrest. Stalvey, in his initial call to Detective Watts, complained only about the taking of the truck and tools and the arresting officer was to look only for a truck and the tools. When Stalvey inventoried the truck and the tools at the sheriff’s office following plaintiff’s arrest, it did not contain the door, and Stalvey is quoted as responding to the officer’s question about whether anything was missing: “No, everything’s right there.”

Whether the door was taken and wrongfully withheld is not germane to the basic issue of a warrantless arrest unless such arrest is within an exception under the Code. “To sustain an action for false imprisonment it is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful.” Lowe v. Turner, 115 Ga. App. 503, 506 (154 SE2d 792). As stated earlier, in an action for false imprisonment, “the mere existence of probable cause standing alone has no real defensive bearing on the issue of liability.” Collins v. Sadlo, supra, p. 318. We found none of the exceptions to a warrantless arrest under OCGA § 17-4-20 to exist under the facts of this case, and presupposing probable cause to believe a crime had been committed, the statute enumerates those circumstances are applicable only under “exigent circumstances.” Id. p. 319. Hence, a defendant in a false imprisonment case premised upon a warrantless arrest does not carry his defensive burden by merely demonstrating the existence of probable cause but must go further and establish the arrest was made because of “exigent circumstances” enumerated in OCGA § 17-4-20. Id. p. 319. Exigent circumstances were not shown in the record. This enumeration is also meritless.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Pope, Ben-ham, and Beasley, JJ., concur. Been, P. J., Carley and Sognier, JJ., dissent.