Haile v. Pittman , 194 Ga. App. 105 ( 1989 )

Carley, Chief Judge.

After an altercation with appellee-defendants, appellant-plaintiffs were arrested and charged with criminal trespass. A bench trial was held. At the close of the State’s evidence, appellants moved for a judgment of acquittal. See State v. White, 145 Ga. App. 730 (244 SE2d 579) (1978). The motion was denied. At the close of all of the evidence, appellants were found not guilty.

After their acquittal on the criminal charges, appellants filed the instant civil action against appellees. Appellants alleged claims of malicious prosecution, false imprisonment and battery. Appellees answered, denying the material allegations of the complaint, and subsequently moved for summary judgment. The trial court granted summary judgment in favor of appellees and appellants appeal.

1. Monroe v. Sigler, 256 Ga. 759, 760-61 (4, 6) (353 SE2d 23) (1987) is controlling as to appellants’ malicious prosecution claims. “The standard employed in the trial judge’s ruling on a motion for judgment of acquittal is thrice removed, it might be said, from probable cause — as ‘beyond a reasonable doubt’ is more than ‘clear and convincing evidence,’ which is more than ‘preponderance of the evidence,’ which, in turn, is more than mere ‘probable cause.’ When the trial judge, having heard all of the [S]tate’s evidence, considers a motion on behalf of an accused (the accused being present and given an opportunity to be heard in support of the motion); and when the trial judge rules that the evidence is sufficient as a matter of law to support a conviction (that is, is sufficient to enable a rational trier of fact[, that being the trial court in this case,] to find each and every element of the guilt of the accused beyond a reasonable doubt), we can see no reason why such a holding — unreversed and in the absence of fraud or corruption — should not suffice as to the existence of probable cause. [Cit.]” (Emphasis in original.) Monroe v. Sigler, supra at 761 (6). See also Warren v. Akins, 188 Ga. App. 602, 603 (2) (373 SE2d 802) (1988), rev’d on other grounds, 258 Ga. 853 (375 SE2d 605) (1989); Seven Hills Security, Inc. v. Dillingham, 188 Ga. App. 1, 2 (372 SE2d 1) (1988); Griffin v. Ga. Power Co., 186 Ga. App. 565, 566 (1) (367 SE2d 832) (1988). “ ‘This determination is unreversed and is binding. . . . “[T]he existence of probable cause has been established, during the trial of the criminal case, in such manner, as to preclude [appellants’] action for malicious prosecution.” [Cit.]’ ” Seven Hills Security, Inc. v. Dillingham, supra at 2.

2. Monroe v. Sigler, supra, is not controlling as to appellants’ false imprisonment claims. “ ‘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. [Cit.] Thus, . . . the mere existence of probable cause standing alone has no real defensive bearing on the issue of liability. [Cit.]” Scott Housing Systems, Inc. v. Hickox, 174 Ga. App. 23, 24 (1) (329 SE2d 154) (1985). “This is true because probable cause to believe that a crime has been committed may otherwise exist and a warrantless arrest yet be illegal. . . . [T]he defendant in a false imprisonment case premised upon a warrantless arrest does not meet his defensive burden merely by demonstrating the existence of probable cause but he must go further and show that the arrest was also effectuated pursuant to one of the ‘exigent circumstances’ enumerated in OCGA § 17-4-20 (a) [or § 17-4-60]. [Cit.]” Collins v. Sadlo, 167 Ga. App. 317, 318-19 (306 SE2d 390) (1983). See Scott Housing Systems, Inc. v. Hickox, supra at 24-25 (1).

However, the undisputed evidence of record in the present case shows that appellees met their burden. Appellants were “arrested by [appellees’] agent [, an off-duty police officer who was working as a security guard,] within whose presence [appellants] appeared to have [committed criminal trespass]. [Cit.] An arrest (of an offender) by a private person [or a law enforcement officer] where the offense is committed in his presence is a lawful arrest. [Cits.] No genuine issue of material fact remains as to [appellants’] claim [s] predicated upon false imprisonment.” Nunnally v. Revco Discount Drug Centers of Ga., Inc., 170 Ga. App. 320 (2) (316 SE2d 608) (1984).

3. “ ‘In the interest of one’s right of inviolability of one’s person, any unlawful touching is a physical injury to the person and is actionable [as a battery].’ [Cits.]” Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986). See also Stover v. Atchley, 189 Ga. App. 56, 57 (2) (374 SE2d 775) (1988); Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572 (1a) (139 SE2d 403) (1964). The evidence shows that appellants were “touched” only in connection with their arrests. Accordingly, unless a genuine issue of material fact remains as to the unlawfulness of such touchings, the grant of summary judgment as to appellants’ battery claims was proper.

As to the arrests of appellants by appellees’ security guard, not only has probable cause been established, but also “[t]he evidence shows that there was no use of, nor threat of excessive force. [Cit.] A prima facie showing having been made that [appellees were] entitled to judgment as a matter of law, [appellants were] required to come forward with rebuttal evidence to sustain [their] allegations of . . . battery, but failed to do so. [Cit.]” Nunnally v. Revco Discount Drug Centers of Ga., Inc., supra at 321 (3). See also J. C. Penney Co., Inc. v. Miller, 182 Ga. App. 64, 66 (4) (354 SE2d 682) (1987).

Appellees cannot be held liable for the actions of the on-duty policemen who formally arrested appellants. The on-duty policemen were not appellees’ agents. They were the official agents of the State. A private citizen’s mere request that an arrest be made does not render an on-duty policeman the citizen’s agent. The requisite control of the officer’s actions by the private citizen is not present. Cf. Brunson v. Valley Coaches, Inc., 173 Ga. App. 667, 668 (1) (327 SE2d 758) (1985); Red Top Cab Co., Inc. v. Hyder, 130 Ga. App. 870 (204 SE2d 814) (1974).

4. Because no genuine issue of material fact remains as to any of appellants’ claims, the trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Benham and Beasley, JJ., dissent.