Aрpellant-plaintiff sued appellee-defendant, alleging claims for false arrest and malicious prosеcution. The trial court granted appel-lee’s motion for summary judgment and appellant appeals.
Nоtwithstanding the trial court’s written findings denominating certain facts as undisputed, we have conducted our own review of the record. When the evidence is construed most strongly in appellant’s favor, the material facts are as follоws: After making purchases in ap-pellee’s store, appellant attempted to leave the premises. Appellee had posted notice of its utilization of an antishoplifting device. See OCGA § 51-7-61 (c). As she apprоached the antishoplifting device, the alarm sounded. Appellant immediately realized why the alarm had beеn activated. She had mistakenly put an item from appellee’s store in her pocket and had then forgottеn to pay for it. That item was a pen. While appellee’s cashier searched appellant’s package to determine whether there were any undecoded items among those that appellant had bоught, appellant walked across the store to a magazine rack. After leafing through a magazine for a few minutes, she removed the pen from her pocket and placed it on a candy rack. Appellee’s store manager had observed appellant’s behavior after the an-tishoplifting alarm had sounded. Appellаnt was arrested and charged *212 with shoplifting, notwithstanding her after-the-fact explanation that she had simply forgotten аbout the pen and had acted surreptitiously to place it on the candy rack only because she was upset and embarrassed, not wanting anyone to think that she was a shoplifter. After a jury acquitted appellant of the criminal charge of shoplifting, she brought this civil action.
Appellant contends that the trial court erred in granting summary judgmеnt because the question of the existence of probable cause for her arrest and prosecution is a jury issue. “The question of probable cause is a mixed question of law and fact. Whether the circumstances аlleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court. [Cits.]”
Hearn v. Batchelor,
Contrary to appellant’s assertions, the evidence shows that it was not the mere activation of the automatic alarm that provided appellee with probable cause to have appellant arrested arid prosecuted for shoplifting. The activation of the alarm provided reasonable cause to detain aрpellant while making an inquiry into the circumstances thereof. OCGA § 51-7-61 (b). While appellant was so detained, she was observed to remove from her pocket and then to place on a rack an item of appellee’s merchandise for which she had not paid and with which she had attempted to leave the store. These observаtions of appellant’s activities constituted a visual “inquiry into the circumstances surrounding the activation of the [аntishoplifting] device.” OCGA § 51-7-61 (b). Although appellant gave an exculpatory explanation for her activation of the device and her subsequent actions, it was not offered until after she had been observed removing the un-purchased merchandise from her pocket and returning it to a shelf. However innocent appellant’s intentions may have been, her actions were highly suspicious and she does not deny that she did have the merchandise on her pеrson and that she did attempt to return it under suspicious circumstances. Compare
Tomblin v. S. S. Kresge Co.,
With regard to appellant’s claim for malicious prosecution, “[t]he overriding question ... is not whether [she] was guilty, but whether [appellee] had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. [Cit.]”
Fisher v. Kentucky Fried Chicken,
supra at 545. We have held that, under the undisputed evidence, appellee’s agent had reasonable grounds to believe appellant to be guilty of shoplifting at the time of her arrest. Appellant produced no evidence that, subsequent to her arrest, appellee acquired furthеr information tending to show that its earlier assessment of the existence of probable cause was erroneous. Compare
Wilson v. Bonner,
Judgment affirmed.