In a multi-count complaint, plaintiff-appellant brought suit against the following defendant-appellees: Bonner, the Sheriff of DeKalb County; S. S. Kresge Company, d/b/a K-Mart (K-Mart); and Lionel Leisure, Inc., d/b/a Lionel Leisure City (Lionel). Appellant’s complaint purported to set forth the following claims for relief: Malicious prosecution; false arrest; false imprisonment; assault; trespass; kidnapping; invasion of the right of privacy; and violation of the Georgia and Federal Constitutions.
The case proceeded to trial before a jury and, at the close of all the evidence, the trial court directed a verdict in favor of appellees as to all of appellant’s claims except those for false imprisonment and invasion of privacy. The jury returned a verdict for all three appellees as to those two remaining claims. Appellant appeals.
1. Appellant asserts error in the direction of a verdict in favor of appellees K-Mart and Lionel on the malicious prosecution claim. The essential elements of a claim for malicious prosecution are “(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was
The relevant facts are as follows: In payment of merchandise, both appellee-K-Mart and appellee-Lionel accepted a check written on the account of and signed by an individual bearing the name Joyce Wilson. The checks were not honored by the bank because no such account existed at the time they were presented for payment. Appellees then obtained warrants for the arrest of Joyce Wilson on a charge of passing bad checks. The warrants which issued for the arrest of Joyce Wilson listed as her residence the address which appeared on the face of the dishonored checks. Appellee-Bonner, acting on the warrants, effectuated the arrest of appellant on July 29, 1975. At that time, appellant was not a resident of nor was she arrested at the address listed on the warrants. Appellant was released from jail on July 31,1975. Thereafter, appellees K-Mart and Lionel received certain information which, for the first time as to them, raised the question of whether appellant was in fact the Joyce Wilson who had passed the bad checks. However, notwithstanding this information supplied to appellees which indicated that appellant was not the correct Joyce Wilson they wished to prosecute, the solicitor’s office prepared — during the second week of August, 1975 — accusations which clearly charged appellant, Joyce Ann Wilson, with passing bad checks to appellees. The accusations against appellant were subsequently nol prosed in September of 1975 on the basis of appellant’s mistaken identification as the Joyce Wilson who had passed the bad checks to appellees.
On this evidence, it is clear that the original warrants obtained by appellee-K-Mart and appellee-Lionel for the arrest of Joyce Wilson cannot serve as the basis for appellant’s malicious prosecution action. “This is an action for malicious prosecution. It involves mistaken identity. The evidence is uncontradicted that there never was a warrant issued for the arrest of the plaintiff in this case. The fact that the defendants, with probable cause, obtained a warrant meant for another person having the identical name of plaintiff cannot be expanded to infer that the defendant [s] intended maliciously for just
any
person of that name
or this plaintiff
to be prosecuted for the offense.”
Massey Stores v. Reeves,
However, under the circumstances of the instant case, that the original arrest warrants were void as to appellant would not be dispositive of the malicious prosecution claim. It is clear that the prosecution of Joyce Wilson initially instituted by the warrants proceeded to a subsequent prosecution of appellant, Joyce Ann Wilson, under
valid
accusations. “A malicious prosecution may be as extensive, in the beginning, as in the rise of the initial facts and circumstances giving birth to the malicious spirit or motive to prosecute, and in the conclusion, as in the last efforts to convict under the final process under which the defendant is then being tried, and may include all mesne or intermediate acts or things or processes which may support or evidence such motive. Within the rule may be warrants, accusations, or indictments, or reissues of either where dismissed or nolprossed.”
Price v. Cobb,
Our review of the evidence shows that it would authorize a finding that, after the arrest, appellees did in fact receive information, in the form of oral communications and photographic comparisons, that appellant was most probably not the Joyce Wilson who had passed the bad checks. While there is some evidence that, after this became known to appellees, they acquiesced in the solicitor’s office handling the issue of whether to prosecute appellant or drop the charges because of mistaken identification (see
Spratlin v. Manufacturers Acceptance Corp.,
Where, as here, there is evidence authorizing a finding that, after being made aware of the question of possible mistaken identity and of the probability that appellant was not the person sought for prosecution, appellees “acquiesced” in the solicitor office’s handling of the issue while apparently using that acquiescence as a means to secure payment of the debt from appellant, we cannot say that there was no evidence of appellees’ lack of good faith in the securing of the subsequent accusations. See
Auld v. Colonial Stores,
supra, at 330 (2 e,f). “The evidence that defendant was placed on notice that plaintiff may not have written the check prior to the [preferment of the accusations] raised a jury question as to whether a reasonably prudent person would have made further inquiry before prosecuting. [Cit.]”
Bi-Lo v. Stanciel,
supra, at 615. “Furthermore, issues of fact remain as to whether the defendant^] acted maliciously in failing to request that the prosecution be terminated after learning what had actually happened.”
Voliton v. Piggly Wiggly,
supra, at 815. Compare
Barber v. Addis,
The trial court erred in directing a verdict for appellees K-Mart and Lionel as to appellant’s malicious prosecution claim.
2. Appellant enumerates as error the direction of a verdict for appellees on her trespass, assault and kidnapping claims. The evidence which appellant cites as authorizing the submission of these claims to the jury is, essentially, exactly the same evidence which was in fact submitted to the jury in connection with her false imprisonment claim. According to appellant, the evidence regarding her trespass, assault and kidnapping claims is that, through appellees’ joint action, she was illegally arrested (trespass), detained (assault) and deprived of her personal liberty for a period of time (kidnapped). See generally
Duchess Chenilles v. Masters,
Under these circumstances it was not error to grant appellees a directed verdict as to appellant’s trespass, assault and kidnapping “claims.” “ Tacts, alone or in conjunction with purely substantive law, do not give a right of action, but are alleged in order to show a wrong which has called into operation the remedial law which gives the right of action. The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. “The
thing,
therefore, which in contemplation of law as its
cause,
becomes a ground for action, is
not
the group of
facts
alleged in a declaration, bill, or indictment,
but the result of these in a legal wrong, the existence of which, if true, they
3. Appellant enumerates as error the failure of the trial court to give the following request to charge: “[I]n making or procuring the arrest of another person, both officers and private persons act at their peril in the matter of identity. If the wrong person is arrested, they are liable for false imprisonment, and good faith is no defense.” (Emphasis supplied.) Our review of the transcript demonstrates, and appellant apparently concedes, that the charge as actually given by the trial court sufficiently covered the principles contained in her refused request with the exception of the emphasized portion negating good faith as a viable defense. It is the absence of this principle in the charge as given that appellant contends renders the failure to give her request erroneous.
Contrary to appellant’s assertions, good faith would be a viable defense under the circumstances of the instant case. The facts clearly show that appellant bore the same name as that specified in the warrants but was not the individual by that name who had passed the bad checks and for whose arrest the warrants were otherwise valid. “If the person is described [in the warrant] by name only, [the officer] must. . . exercise due diligence in determining whether the person arrested bears the name specified in the warrant, and the arrest will be justified if the person bears the name; although a detention might be illegal when information comes to the officer that the person so arrested is not the person against whom the warrant was issued. If there are two or more persons, within the bailiwick of the officer in whose hands the warrant is placed, bearing the same name, the officer is charged with the duty of ascertaining, before making an arrest, which of such persons the warrant was intended for. If he decides this
The cases relied upon for the proposition that the arresting officer acts at his peril and that good faith is not a defense in a false imprisonment case are distinguishable factually. See e.g.,
Johnston v. Riley,
With regard to appellant’s further contention that another of her requested charges relating to her false imprisonment claim was erroneously refused, our review demonstrates that the principles contained in the request were sufficiently covered in the charge as given and, furthermore, that appellant’s requested instruction was correctly refused as being argumentative. See generally
Ga. Sou. & Fla. R. Co. v. Odom,
4. In several enumerations, appellant asserts that the trial court erred in refusing to give numerous requested instructions. We have carefully and thoroughly reviewed the entire charge given by the trial court. That review demonstrates that the jury was given instructions which were full, fair, complete and adjusted to the evidence and law
5. At trial, appellees offered for admission into evidence the deposition of a psychiatrist who had treated appellant prior to the time of her arrest on the warrants. According to appellees, appellant’s preexisting mental and emotional condition was a relevánt issue in the case because of the damages appellant was seeking to recover. The trial court ruled the deposition admissible over several blanket objections raised by appellant to its general overall admissibility, including the violation of the patient-psychiatrist privilege, hearsay and the deponent’s inability to testify from his own recollection. While the entire deposition was not excluded over appellant’s stated objections, the trial court did consider and, in some instances, sustain numerous objections to specific portions of the deposition. On appeal, appellant apparently asserts error only in the trial court’s initial evidentiary ruling that, as against the stated objections to its general overall admissibility, the deposition as a whole was not excludable from evidence.
At least one, if not all, of appellant’s objections to the general admissibility of the deposition was meritorious. Under OCGA § 24-9-21 (5) (Code Ann. § 38-418) communications between a psychiatrist and patient are privileged and “excluded from consideration.” In
Kimble v. Kimble,
However, the error in admitting the deposition testimony in the instant case was harmless. Insofar as the psychiatrist’s deposition was admitted, it appears that essentially the same facts concerning appellant’s mentid and emotional state before the arrest, including her hospitalization and diagnosis, were already before the jury in the form of appellant’s own testimony and the testimony of her own witnesses, including her mother, her aunt and the psychiatrist who had treated her after the arrest. “Where evidence of the same nature as that objected to is admitted, without objection, the admission of the evidence objected to, if error, is harmless. [Cit.]”
Saint v. Ryan,
6. For the reasons discussed in Division 1, the trial court erred in directing a verdict for appellees K-Mart and Lionel on appellant’s malicious prosecution claim. No other reversible error appears as to appellant’s other claims or as to appellee Bonner. Accordingly, the judgment is reversed as to appellees K-Mart and Lionel and affirmed as to appellee Bonner.
Judgment affirmed in part and reversed in part.