Probable cause, in a suit for false imprisonment and malicious prosecution, is that apparent state of facts existing after reasonable and proper inquiry. The court erred in granting summary judgment for defendants where there was a material issue of fact as to whether a reasonably prudent man would have made further investigation before prosecuting.
Hedda Sanfrantello filed this suit against Sears, Roebuck & Company and W. E. Lovitt, assistant manager of one of the corporate defendant's stores, to recover for false imprisonment and malicious prosecution. Plaintiff took this appeal from the trial court's grant of summary judgment for defendants. The supporting affidavit showed that Lovitt saw plaintiff pick up two dolls and walk out of the store without paying for them. He then accosted her, found that she had placed the dolls in the trunk of her car, and took her to an office inside the store to interview her. Opposing affidavits showed that plaintiff's husband, who had entered the store with plaintiff, informed Lovitt that the dolls had been paid for and that he, the husband, had a bill of sale for them. Lovitt paid no attention to this information, but caused plaintiff to be arrested and prosecuted for shoplifting.
1. On motion for summary judgment, the movant has the burden of showing the absence of any genuine issue of material fact, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1
, 4 (126 SE2d 442
); International Brotherhood v. Newman, 116 Ga. App. 590
, 592 (158 SE2d 298
). The movant "has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence." Colonial Stores, Inc. v. Turner, 117 Ga. App. 331
, 333 (160 SE2d 672
); 6 Moore's Federal Practice (2d Ed.) 2853, 56.23.
Colonial Stores, 76 Ga. App. 329, 335 (45 SE2d 827). Probable cause is that apparent state of facts existing after reasonable and proper inquiry; the prosecutor is under a duty of caution and avoidance of haste. Id.; Coleman v. Allen, 79 Ga. 637, 640-642 (5 SE 204, 11 ASR 449).
Viewed with liberal indulgence, the opposing affidavits, showing Lovitt ignored the information that the dolls had been paid for and that plaintiff's husband had a bill of sale for them, reveal an issue of fact as to whether a reasonably prudent man would have made further investigation before prosecuting. On the basis of the affidavits actually considered by the trial court it was error to grant summary judgment for defendants.
2. It is not necessary to decide whether the court erred in refusing to consider further opposing affidavits served on defendants on the day set for hearing. As to the time of filing see Code Ann. 81A-156 (e) (Ga. L. 1966, pp. 609, 660, as amended).
Judgment reversed. Hall and Quillian, JJ., concur.