dissenting.
If the case at issue had involved a claim by Albert Hernandez, the cousin of the plaintiff, much of what is written in the majority opinion would be acceptable. The vital factor is that Hernandez is not the plaintiff, but the majority opinion ignores this fact by setting forth legal principles which have no application to the facts as applied to the plaintiff Gortarez.
The law applicable to the issues of false arrest and false imprisonment is purely statutory. A.R.S. § 13-1805, the applicable statute, is broader in scope than the rule advanced by the Restatement, a fact which is acknowledged by the majority but relegated to a footnote. Page 813 footnote 4. The provisions of the statute material to this case and in effect at the time provided:
“C. A merchant, or his agent or employee, with reasonable cause, may detain on the premises in a reasonable manner and for a reasonable time any person suspected of shoplifting as defined in subsection A for questioning or summoning a law enforcement officer.
“D. Reasonable cause is a defense to a civil or criminal action against a peace officer, merchant or an agent or employee of such merchant for false arrest, false or unlawful imprisonment or wrongful detention.”
Focusing on the action taken by the defendant security guard against the non plaintiff Hernandez, the majority holds that unreasonable force against Hernandez resulted in his false arrest and imprisonment, which in turn also resulted in the false arrest and imprisonment of the plaintiff. It is conceded by the majority that plaintiff *107Gortarez was initially not touched by the defendant’s agent. Page 815 footnote 6. Apparently by some theory of transferred intent or otherwise any unreasonable restraint of the non plaintiff became unreasonable as to the plaintiff.
The agents of the defendant had reasonable cause to detain the plaintiff and his cousin, a position which the majority concedes. Since the defendant’s agents had reasonable cause to detain the plaintiff, this must of necessity include the authority to keep him from leaving the parking lot; thus any action against the plaintiff’s driver adds nothing to the issue of the right to detain the plaintiff. He was subject to detention irrespective of any action taken to detain or release his cousin.
The individual who had picked up the items thought to have been stolen was the plaintiff. Under A.R.S. § 13-1805(C) the defendant’s employees were entitled to detain the plaintiff in a reasonable manner and for a reasonable time for questioning or summoning a law enforcement officer. There is absolutely no evidence in the record that any unreasonable action was directed against the plaintiff. He was not touched or restrained in any manner. This is borne out by the record which shows that no agent of the defendant company sought to stop the plaintiff from leaving the passenger’s side of the automobile to approach and challenge the security guard who was searching his cousin. Any restraint of the plaintiff, actual or by implication, was accomplished in a reasonable manner.
The directed verdict on the claim for false arrest and false imprisonment should be affirmed.
The case which the majority presents on the assault and battery issue is of course different from that presented at trial. The defense of others was not the issue tried in the superior court, but it is the defense suggested in the majority opinion. Page 816 footnote 7. To avail himself of that privilege the plaintiff is required, among other things, to show that there was a necessity for the violent action to protect the third person. Restatement, Second, Torts § 76 and comment d. I am not persuaded that the plaintiff demonstrated any necessity for his violent action particularly in light of the fact that his cousin did not ask for help or seem to need any assistance. In any event I believe any issue about the defense of others should not be considered as decided in this appeal. Since the matter was not developed in the superi- or court I believe that it should remain open for decision by the trier of fact in the retrial.
As the case was tried in the superior court and based on the issues presented to the Court of Appeals, I believe that the Court of Appeals was correct in affirming the judgment of the superior court. I dissent from the opinion of the court.