Abernathy v. Dover

• Court: Georgia Court of Appeals
• Writing for the Court: BELL
• Citation: Abernathy v. Dover, 228 S.E.2d 359, 139 Ga.App. 323 (Ga. App. 1976)
• Decision Date: 15 July 1976
• Docket Number: No. 52462,No. 1,52462,1
• Parties: Irene ABERNATHY v. Joe DOVER

Page 359

228 S.E.2d 359

139 Ga.App. 323

Irene ABERNATHY v. Joe DOVER.

No. 52462.

Court of Appeals of Georgia, Division No. 1.

July 15, 1976.

William G. Hasty, Jr., Thomas A. Roach, Canton, for appellant.

Smith, Shaw, Maddox, Davidson & Graham, William E. Davidson, Jr., Rome, for appellee.

BELL, Chief Judge.

This is a malicious prosecution suit in which the defendants' motion for summary judgment was granted. The plaintiff appeals. Held:

The issue in this type of action is the lack of probable cause on the part of the prosecution. Morgan v. Mize, 118 Ga.App. 534, 164 S.E.2d 565. Ordinarily the existence of probable cause is a jury question. Code § 105-802. But, where the material facts are not in dispute or only one inference can be drawn, the question becomes one of law. Johns v. Gibson, 60 Ga.App. 585, 4 S.E.2d 480. An employee of the defendants, operators of a grocery store, cashed a check made payable to Irene Abernathy for a person holding herself out as Abernathy and who established her purported identity to the employee by means of a North Carolina driver's license. The check was returned by the drawee bank unpaid because of the nonexistence of an account in the name of the drawer. One of the defendants swore out a warrant for the arrest of plaintiff. This criminal case was later dismissed by the superior court because of a lack of evidence. Applying the above rules to these undisputed facts, we affirm the grant of judgment to defendants...