52 Ga. App. 1 | Ga. Ct. App. | 1935
This is a suit for damages for a malicious prosecution by the plaintiff in error (hereinafter referred to as the defendant) of the defendant in error (hereinafter referred to as the plaintiff). The alleged prosecution consisted of accusations charging the defendant with the offense of “selling whisky,” and “having whisky.” The jury returned a verdict for the plaintiff. The defendant’s motion for new trial was overruled, and the exception is to that ruling. A consideration of the general grounds of the motion, that the verdict is contrary to the evidence and therefore contrary to law, will dispose of the writ of error.
The facts are substantially as follows: The plaintiff, J. T. Banks Jr., was employed by the defendant corporation as manager of one of its chain grocery stores in Sylvester, Georgia. S. J. Fair-cloth, vice-president and general manager of the defendant corporation, upon information that whisky was being handled at the store managed by the plaintiff, which information was furnished by a manager of another of ,the defendant’s stores (who reported (and testified upon the trial) that two men, neither of whom he had seen before or since, and whose names he did not inquire, told him of whisky being sold at their store in Sylvester), assigned one Bridges to investigate the truth of the statements. Bridges testified that he went to Sylvester and heard rumors that Mr. Ballard, a farmer, had complained that his negroes had been obtaining whisky at the store, and that he and the plaintiff made a trip out to Ballard’s farm that afternoon in order that he might investigate these statements, although the purpose of his mission was not known to the plaintiff. The fact of this trip was admitted by the plaintiff, and corroborated by Ballard. Upon arrival at the farm Ballard accompanied Bridges to talk to the negroes on the place, and at least one negro admitted that he had purchased liquor at the store from Purvis Daniels, the delivery boy. This was corroborated by the testimony of Ballard. On the return trip to town, Bridges inquired of the plaintiff if he knew where he could obtain whisky. The plaintiff replied that he did not know, that he did not fool with the stuff, but that he thought he might be able to obtain some for Bridges. Bridges testified that when they returned to the store the plaintiff called Daniels, the delivery boy; that Daniels disappeared for a few minutes, and then delivered him a pint of whisky, and he paid the plaintiff 50 cents for it. The plaintiff admitted
“A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, gives him a cause of action." Code of 1910, § 4439, Code of 1933, § 105-801. In such an action there can be no recovery without a concurrence of want of probable cause with malice. Coleman v. Allen, 79 Ga. 637 (5 S. E. 204, 11 Am. St. R. 449). “The mere fact that a person has been charged with a criminal offense, and has, upon trial therefor, been acquitted, does not give him a right of action against the prosecutor. He must go further and prove that the prosecution was instituted with malice and without probable cause.” Stuckey v. Savannah, Florida and Western Ry. Co., 102 Ga. 782 (29 S. E. 920). As was said in Coleman v. Allen, supra: “The general principle, that in an action for malicious prosecution there can be no recovery without a concurrence of the want of probable cause with malice, is'fully recognized. If probable cause and malice are both present, there can be no recovery; if they are both absent there can be none. In this class of actions, it is only where malice is present and probable cause is absent that
Probable cause has been defined to be “the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.” Wheeler v. Nesbit, 24 How. (U. S.) 44 (16 L. ed. 765). This rule is accepted by the general weight of authority, and by the courts of this State. In Hartshorn v. Smith, 104 Ga. 235 (30 S. E. 666), it was said: “In actions for malicious prosecution, the question is, not whether the plaintiff was guilty, but whether the defendant had reas’onable cause to so believe — whether the circum-, stances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution. Probable cause is defined to be the existence of such facts and cir
As a general rule, the burden of proving lack of probable cause and malice rests on the plaintiff. However, in the ease at bar, the defendant filed a plea of justification, admitting “the act to be done,” under the Code of 1910, § 4488; Code of 1933, § 105-1801; and assumed the burden of proving the existence of probable cause. See Rigden v. Jordan, 81 Ga. 668; Horton v. Pintchunck, 110 Ga. 355 (35 S. E. 663). The gist of the plaintiff’s contention before this court is that whether or not there existed probable cause and malice was purely a question for the jury, and that they have re
In Stuckey v. S. F. & W. Ry. Co., supra, it was said: “If a prosecutor is informed by credible witnesses of the commission of an offense against the laws of the State, and institutes a prosecution on the faith of this information, he can not be mulcted in damages because of the acquittal of the accused in the criminal case.” See also in this connection, Joiner v. Ocean Steamship Co., supra. Whether or not the investigation made against plaintiff was begun in malice, as that term is defined in law, or whether or not the prosecution was with malice on the part of the prosecutor, becomes immaterial under the view we have taken of the case. See Seamans v. Hoge, supra. The ruling we have made under the facts presented seems to be entirely in accord with all authorities cited to us, and those that have been read from our own research. Our criminal law is not self-operative. It must be administered by human agencies. An action of this character is strictly guarded, and the terms under which it will lie are strictly stated. The action is not favored by the law, and especially is this true where the suit is based upon a criminal proceeding against the plaintiff; for public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage. See Ventress v. Rosser, 73 Ga. 534; Joiner v. Ocean Steamship Co., supra; Henderson v. Francis, 75 Ga. 178. It is therefore the decision of this court that the verdict is contrary to the evidence, and therefore contrary to law; and the judgment overruling the motion for new trial should be and is Reversed.