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OCTOBER 12, 1983




Shoplifting accusation leveled at Magid Torabi based upon events within J. C. Penney, Inc. store is the basis of Torabi's tort action appealed from the Circuit Court of the First Judicial District of Hinds County, the Honorable Charles Barber presiding. Torabi sued J. C. Penney, Inc. (Penney's herein), and its security officers, V. Taylor and Johnny James, alleging that they wrongfully accused Torabi of shoplifting from Penney's, falsely imprisoned, and detained him. Mississippi Code Annotated 97-23-51 (1972), was relied upon by defendants Penney's and the security officers. The lower court sustained the defendants' motion for a directed verdict and entered judgment for them. We reverse.

On his appeal, appellant/plaintiff Torabi argues that the lower court erred by (1) "directing a verdict in favor of defendants" , and (2) "placing the burden on appellant to show lack of probable cause for the actions of appellees" .

 Testimony was that on January 2, 1982, Torabi

 went to Penney's in Jackson Mall to exchange a suit he previously purchased there. He tried on two other garments and then was arrested by Penney's security officers Taylor and James, who charged him with shoplifting. The city of Jackson municipal court, after hearing evidence, acquitted Torabi of the shoplifting charge.

 Then Torabi filed the present tort action against Penney's and security officers Taylor and James for malicious prosecution, assault and battery, false imprisonment, and slander in connection with Torabi's arrest in Penney's. In their answer, Penney's and the two officers affirmatively pled that they had acted within their rights under 97-23-51, supra. At the trial of the tort action in circuit court, plaintiff Torabi testified in his own behalf and called the two officers as adverse witnesses, after which Torabi rested his case. At that juncture, defense counsel moved for a directed verdict contending Torabi "failed to make out a prima facie case . . ." . In granting a directed verdict, the lower court stated it "did not feel that plaintiff had made a prima facie case" , and accordingly entered judgment exonerating Penney's and the two security officers. Other facts will afterwards be stated as needful.


 Paymaster Oil Mill Company v. Mitchell, 319 So. 2d 652 (Miss. 1975), sets forth the rule applicable in deciding whether a directed verdict should be given:

 [I]n passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. . . . .

 Id. at 655.

 Appellees (defendants) rely upon 97-23-51 which permits detention of a shoplifting suspect if such detention is "in good faith and upon probable cause based upon reasonable grounds . . ." .

 Torabi testified that he went to Penney's on the date in question to return a previously bought suit because his wife did not like the color. He went to the men's

 department and discussed the matter with a Mr. Dykes, the store clerk who sold him the suit, and told Dykes that he wanted to exchange the suit. Dykes advised him to go ahead, after which, according to Torabi's testimony, he left the old suit in a shopping bag on the counter and took another suit and sports coat from the rack into a dressing room where he tried them on. Then he decided he would buy the sports coat and so advised store clerk Dykes. As he waited for Dykes, he continued browsing and held up a pair of black trousers to himself, and replaced them on the rack. Then he decided to take his shopping bag from the counter back to the dressing room and again try on the original suit he previously purchased.

 As Torabi came out of the dressing room, security guard Taylor asked "What's in your bag?" . Torabi replied it was his old suit, at which time the other security officer James looked in the bag and inquired about the pin-stripe suit which Torabi had first taken into the dressing room and tried on. Torabi advised him that he had tried the suit on and left it in the dressing room. According to Torabi, while he was accompanying the officers back to look, they twisted his arm and arrested him and wouldn't listen when he tried to make explanation. Then Officer Taylor asked him if he was Iranian, and when Torabi answered affirmatively, Taylor (according to Torabi's testimony) told him he would hang him on $50,000 bond. Torabi was taken by the officers to the security office where according to him, they promised to help him if he would confess, ...

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