McMillan v. Day Realty Associates, Inc.
159 Ga. App. 366
Ga. Ct. App.
1981
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MCMILLAN v. DAY REALTY ASSOCIATES, INC.

60682

Court of Appeals of Georgia

DECIDED JUNE 29, 1981

REHEARING DENIED JULY 22, 1981

159 Ga. App. 366

QUILLIAN, Chief Judge.

Louis F. McDonald, for appellant. William S. Goodman, for appellee.

CARLEY, Judge, concurring specially.

I concur fully in the judgment reversing the grant of summary judgment in this case. I also agree with all that is said in Divisions 1 and 2 of the opinion. I further endorse the ruling of Division 3. However, I am not convinced of the applicability of the statutory provisions relied upon by the majority nor am I certain that the failure to answer the letter constitutes “a justifiable inference that the tender, if carried out in all formality, would still be rejected” so that, under the cases cited, a formal tender is unnecessary. However, I do agree with the majority that the defendant‘s failure to reply to plaintiff‘s letter is crucial because “if the party to whom tender is to be made should obstruct or prevent a tender, [there is] no reason why in that event tender should not be held to have been waived. It would be unfair for the first party to a contract to purposely avoid and prevent the performance of a contract by the other party.” . Thus, while I do not believe that the failure to answer this particular letter could be construed as an admission or as an indication that the ultimate tender proposed would be refused, I do believe that the defendant‘s failure to respond in any way could be found to be an attempt to obstruct or prevent the tender. Therefore, it is clear that summary judgment was improperly granted in this case.

QUILLIAN, Chief Judge.

For a full statement of the facts see , where we held that since there was no probable cause to believe the lawn mower had been purloined by the plaintiff, it was error to direct a verdict for the defendant.

On certiorari the Supreme Court answered in the negative the following question: “Is a jury question presented in an action for malicious prosecution where the defendant obtains an arrest warrant for theft by taking of several items and the evidence, as a matter of law, supports a finding of probable cause for some items, but not for all of them?” The rationale for the decision was predicated on public policy of not favoring suits for malicious prosecution. Our decision was therefore reversed and remanded for determination of whether there was a lack of probable cause to prosecute for theft of any of the other items.

On remand the appellant has argued public policy should forbid prosecution based on mere possession of missing items. While sympathizing with that position, precedent dictates that we leave such determination to our highest court. This case is controlled by the principles enunciated in : ” ‘The burden of proving the want of probable cause is on the plaintiff’ (), and he does not in any reasonable sense carry this burden unless he shows by his evidence that, under the facts as they appeared to the prosecutor at the time of the prosecution, the prosecutor could have had no reasonable grounds for believing the plaintiff to be guilty of the charge for which he was prosecuted. [Cit.]’ ‘In actions for malicious prosecution, the question is not whether the plaintiff was guilty, but whether the defendant 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.]’ ” The court there held that a judgment was demanded for defendant where the plaintiff failed to show that, at the time of prosecution, the defendant had no reasonable grounds for believing the plaintiff was guilty. Likewise, in the case sub judice the circumstances were such that it could not be said that there was no reasonable cause to believe that the plaintiff was guilty of a crime.

Moreover, another major factor which must be shown is malice. The applicable precepts are contained in from which we quoted extensively in our original opinion. The case relied upon wherein this Court made the determination that the direction of a verdict for the defendant (prosecutor) would be in order where there was no evidence of defendant‘s fraudulent conduct or improper motive, the plaintiff (accused) was bound over by magistrates, subsequently indicted, and there were “some slight circumstances pointing to his guilt, though not enough to exclude every other reasonable hypothesis . . .”

We are, therefore, constrained by the cited authority to find that the trial judge did not err in directing a verdict for the defendant.

Judgment affirmed. Shulman, P. J., and Carley, J., concur.

ON MOTION FOR REHEARING.

1. Contrary to movant‘s assertions the issue of whether the question of probable cause should be determined by the court or by the jury was discussed in our original opinion. See . Nevertheless, we reiterate the well established principle: “The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged 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.” and cases therein cited. Accord, ; ; ; ; ; . Moreover, “where it is clear from the evidence that the prosecutor did have probable cause for the prosecution of the plaintiff, a verdict for the defendant is demanded.” .

2. Statutory authority for our decisions, such as , is found in Code § 105-804 which provides: “A total want of probable cause is a circumstance from which malice may be inferred . . .” Thus, we find no basis, as suggested by movant, to repudiate the holding of , that malice can be inferred only where there is a total want of probable cause. “And where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution to recover . . .”

Judgment adhered to.