*1 29, 1968, caused on March injury sustained accidental Compensation was by Seapak. employed disability while her approved the appellants. The full board awarded her superior court findings and award deputy director’s supports the record which is evidence affirmed. There findings these This court bound the award. findings and Gregg, App. 663 Fidelity & Cas. Co. fact. affirming award and err in superior court did appor- for an remand the case appellants’ motion to denying employers on paid the two amounts to be tionment employments under injuries in different separate the basis 114-408. Code § superior appealed the order of has cross The claimant
3. attorney’s penalty fees and denying her motion for court insurer, Seapak its for defend- appellees, against the cross in this case appeal on the ing the facts of this case we grounds. Under the reasonable without judge abused his discretion superior court say that cannot Thomp- Cas. Co. v. denying New Amsterdam the motion. See son, App. 677 appeal. appeal and on cross
Judgments on the main affirmed Quillian and June 1970 Decided July Gilbert, Whittle, Gayner, III,
Bennet, ap- M. Gilbert & John pellants. Brackett, Arnall, Nichols, Nichols, Lyle & H.
Adams & O. T. Arnall, appellees. COMPANY OF
45153. GIBSON’S PRODUCTS ALBANY, INC. v. McDANIEL.
Hall, Presiding Judge. pros- in an for malicious Defendant action its appeals from the and from the denial of
ecution judgment n.o.v. motion for employed by an outside salesman
Plaintiff was defendant as responsibility for suspected plaintiff of cashier. Defendant "trap.” shortages receipts set a in the cash and therefore employee made a evidence is that another *2 plaintiff, plaintiff the exact amount ($3.47), ring up he did on the cash not ter, day. and that was short 19 cents for the larceny plaintiff Defendant swore out a warrant for acquitted brought after trust. Plaintiff was this action for prosecution probable The issue a suit for malicious is want of part cause on the instituting Barrs, plaintiff’s guilt or innocence. Tanner-Brice Co. v. 55 Smith, App. 676); Ga. SE Hartshome v.
(1) (30
666).
question
probable
cause is a mixed one
determined,
of law and fact. Once the
they
facts are
probable
amount to
cause is a
of law. Hicks v. Bran-
tley,
fendant. Judgment Bell, J., Jordan, J., reversed. Eberhardt, C. Pannell,
Deen, Quillian Evans, J., dissents. 1970 Decided June July Smith, Gardner, Wiggins, Brimberry, Watson, Keenan, Geer & Lowe, Spence & Watson, G. Stuart appellant. Burt, Rentz, appellee. D.
BuH & Donald dissenting. opinion I of the ma- Judge, dissent from the Evans, jority of reversal on the denial of the motion agree judgment notwithstanding the verdict. I cannot that the undisputed. could have found that facts in this case were the defendant had cause to believe money. But also could have found from the evi- taken its dence, find, and did so the defendant had no money. to believe the took the is from a in an action for malicious (the seeking punitive damages. actual and cution (the arrested, appellee) appellant) sued the defendant after he was trust, charge acquitted alleging tried and false and malicious of him carried on without cause, by agent manager, acting scope defendant’s within the employment, of his who swore out a criminal warrant *3 physical pain offense from which he endured mental and and suf- fering, public disgrace. jury scandal and of returned a verdict $1,000 $4,000 general damages punitive damages, and the followed the verdict. The is also from the denial judgment notwithstanding of defendant’s motion for the or, alternative, amended, in the its motion for new trial as all of hearing. majority which were denied after a has reversed on the denial of the defendant’s motion for not withstand- alone, ing only ruling the verdict and this is the I will here con- sider. evidence, substance, employee shows the was an defendant, cashier, part-time
of the as a outside salesman and given hour, closing gave that on a date near the $3.47, security change one of its men the correct of with instruc- go tions to him to out in front of the store where the was working purchase dog purchased of case food. This witness dog plaintiff, gave change, the food from the him the correct left, picked up dog parties standing the food and the from 6 to 20 away register. feet from the cash was aware that the security receipt. man was store detective who did not ask for a closing put money It was almost time and the did not the begun money in the until had he take the rest of the bag with the into a cash deposited the $3.47 he from when cash ring up money the on the didHe other collections. activity time, this because, disconnected. All of it was at that ter manager closing. who only few minutes before place took tape and saw that the look at the "trap” the came out to had set By deposition rung register. up on the cash had not been he the warrant was manager that reason took out the the testified conflicting much tape.” on There was "the wasn’t the $3.47 money the amount of testimony on issues as to numerous tapes, discrepancies appearing register, various here and the civil action of the criminal case both trial There also resulting plaintiff. in a verdict in favor date that al- testimony as to the exact conflict in the some honesty plaintiff’s There is also leged occurred. or test occurred three conflicting testimony as arrest or month after the so-called occurred. weeks one out the de- probable cause for the warrant taken Was there cause after trust? Whether there fendant (Code 105-802), for the peculiarly not was or § satisfy as to a reasonable man are such when circumstances his proceeding no but desire to accuser accused, would authorize injure the a total want of 105-804; of malice. Code Auld jury to infer the existence § Every fact or cir- necessity prove tending to there was cumstance no may issuing of existence a motive the warrant cause. McLaren in evidence to establish the want (6). arrest, Birdsong Sledge, Thus trial & the record suit, is admissible. discharge, formed the basis *4 Kellar, Glaze, 58; v. Sloan Anderson v.
(33 enough in malice is not SE2d But the want of Bailey Century v. to the existence of cause. itself show (169 sense, legal In a Finance 119 Ga. wilfully to in- purposely is any act which done unlawful is, person, malicious. Thus there jury of another as the result of a de- is must some evidence injure Brantley, Ga. 264 accused. Hicks v. sire to 459). However, jury, approved after a verdict is rendered court, every the trial arising inference from the evidence must
be construed strongly most in favor of the verdict. Southern Rail- way Brock, State, Wren v. 146); Stapleton Amerson, v. Young Bailey, Men’s Christian Assn. Ga, judice stronger case sub is in favor of the than many of the prosecution, other cases of malicious in that here the defendant setting trap catch, admitted attempt an to (two cute and convict an juries innocent man having adjudged any him to be wrongdoing innocent of premises). While the law sanctions use of entrapment guilty person means of order to secure evidence provided to convict him opportunity is (Hill ready furnished to one State, who is to commit the offense 338)), approval we have no of the use of such means to party. Thus, catch an innocent person where a sets catch, prosecute person, convict another and such person completely is wrong-doing, innocent of then it becomes jury question as to whether the who set and baited the guilty addition, malicious In there was evi- agents dence here that appellant had been advised on several occasions of the appellee, innocence of the and were well aware before the warrant was scarcity ever issued of the of evi- Indeed, dence to convict him. an amendment was offered that "at the trial of said good awas man of reputation and character in community” which was admitted by counsel for true, requiring to be no further proof. There was no direct evidence larceny, whatsoever of but the appellant used circumstantial attempt evidence alone to to show guilty him trust. The was authorized to con- sider all testimony, of this including tapes the exhibits of the records, other to arrive at the conclusion reached in this case. The supports verdict, evidence and the trial court did not err failing grant defendant’s motion for notwith- standing in accordance with his motion for directed verdict. I judgment. would affirm this