Auld v. Colonial Stores Inc
| Decision Date | 29 October 1947 |
| Docket Number | Nos. 31675, 31685.,s. 31675, 31685. |
| Citation | 45 S.E.2d 827 |
| Parties | AULD. v. COLONIAL STORES, Inc., et al. COLONIAL STORES, Inc., et al. v. AULD. |
| Court | Georgia Court of Appeals |
Judgment Adhered To Dec. 18, 1947.
[COPYRIGHT MATERIAL OMITTED]
Syllabus by the Court.
1. (a) "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." Code, § 105-801.
(b) "Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." Code, § 105-802.
(c) "A total want of probable cause is a circumstance from which malice may be inferred, but such inference may be rebutted by proof." Code, § 105-804.
(d) "The recovery shall not be confined to the actual damage sustained by the accused, but shall be regulated by the circumstances of each case." Code, § 105-808.
2. (a) Where a check was drawn on a given bank by one having funds in such bank to pay the check if presented promptly in due course, and the entries on the back of the check showed that it was not presented for payment until the elapse of two months, it being drawn on a bank in the same town, the agent of a collecting agency attempting to collect the check having the check in his possession and making an affidavit for a criminal warrant charging the drawer of the check with being a cheat and swindler without making any investigation to determine whether or not there were funds to the credit of drawer of check in bank to pay the same if presented promptly in due course, cannot be said as matter of law to have probable cause to believe that drawer of check was a cheat and swindler. See Coleman v. Allen, 74 Ga. 637(1), 5 S.E. 204, 11 Am.St. Rep. 449.
(b) This rule obtains, notwithstanding the fact that the attorney for the plaintiff in error may have urged the president and manager of the Merchants' Protective Association to continue with the prosecution by making the affidavits and taking out the accusation, the attorney telling him that he intended to bring suit for malicious prosecution.
(c) Where such agent at the committal hearing on such warrant heard the cashier of the bank testify that the bank held funds to account of drawer to pay such check if presented promptly in due course, and thereafter makes affidavit that such check was uttered by the drawer knowing that he did not have sufficient funds in such bank for the payment of such check upon presentation, such affidavit being made to form the basis of a criminal prosecution, and then signed an accusation based thereon as prosecutor in a criminal court, and then appeared at the trial thereof as prosecutor, it cannot be said as a matter of law that such prosecutor acted with probable cause to believe that the drawer of the check was guilty thereof.
(d) On the other hand, where, in an action for malicious prosecution, the undisputed evidence disclosed the facts outlined in sub-paragraphs (a), (b), and (c) of this headnote, such prosecutor as a matter of law acted without probable cause, and the case should have been submitted to the jury under Georgia Code, § 105-802.
(e) This rule obtains, notwithstanding the committing magistrate bound the accused over at the committal hearing to answer to the charge set out in the affidavit and warrant described in paragraph (a) of this headnote (see Darnell v. Shirley, 31 Ga.App. 764, 122 S.E. 252), because, even if on instigating the prosecution the prosecutor had probable cause at the commencement, if he afterwards acquired knowledge, or the reasonable means of knowledge, that the charge was not well founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury.
(f) Where it appears from the undisputed evidence that the prosecutor wrote the plaintiff in a suit for malicious prosecution that he would swear out a warrant "causing a lot of embarrassment and an additional cost" if plaintiff did not pay the demand, the obvious purpose was the collection of a debt, and is evidence of the want of probable cause (see Bigolow v. Sickles, 80 Wis. 98, 49 N.W. 106, 27 Am.St. Rep. 25), which should be submitted to the jury.
3. (a) Malice may be inferred from the want of probable cause. Where the announced object of the criminal prosecution is to embarrass the accused and put him to additional cost if certain payment is not made, malice may be inferred therefrom,
and where there is a want of probable cause of the guilt of the accused, such object within itself raised a question of fact to be passed upon by the jury. It may be inferred from this effort to collect a debt that the criminal prosecution was maliciously carried on, and a jury would be authorized so to find.
(b) Malice may consist of a general disregard of the right and consideration of mankind, directed by chance against the individual injured. Darnell v. Shirley, supra. Where the prosecutor by the use of slight diligence could have known there was no probable cause for making the affidavit forming the basis of criminal prosecution, the circumstances raised a question of fact to be passed upon by the jury, since malice may be inferred from facts and circumstances of the case.
(c) While a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and he is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.
4. Where the president and general manager of a corporation, whose business it is to collect bad checks for clients, is in charge of the business of the company and is vested with discretion as to the ways and means he shall proceed to make such collection, and frequently employs the method of swearing out criminal warrants against the makers of such checks as a part of the regular course of the business of his company in making collections and not in furtherance of his own business, the same is for the sole benefit of his company, and where such president and general manager makes affidavit in connection with such a check held for collection by said company and carries on a criminal prosecution by signing the accusation, the corporation is bound by this conduct because the corporation can act only through its agent, and will be held to have approved this general course of conduct on the part of its president and general manager. It was a question of fact in the instant case, to be determined by the jury, whether or not the defendant corporation, Merchants' Protective Association, had approved such course of conduct to bind it with and to make it liable for such conduct. See Davi-son-Paxon Co. v. W. V. Norton, 69 Ga. App. 77-79, 24 S.E.2d 723.
5. In cases where the agent is employed to procure the payment of a debt, the general rule is that the authority conferred upon the agent to collect a debt does not imply authority to cause an arrest so as to render the principal liable in an action for malicious prosecution, in the absence of ratification or adoption of the agent's act. Held, applying this rule to the evidence in the instant case, the judge did not err in granting a nonsuit as to Colonial Stores, Inc., GARDNER and TOWNSEND, JJ., dissent to this ruling in this headnote.
6. When a petition is not demurred to, and is proved as laid without at the same time disproving plaintiff's right of recovery, the award of a nonsuit is error. See Clark v. Bandy, 196 Ga. 546, 27 S.E.2d 17,. and cases there cited.
7. Where one who had sufficient funds on deposit in a bank to pay a check-drawn against the account if presented promptly, is prosecuted for the offense of violating the bad check laws and is acquitted, and then brings an action against the prosecutor for malicious prosecution, and offers in evidence a check on another, proffered in settlement of the civil liability after the prosecution was begun but before it ended, it is not inadmissible in evidence upon the grounds that the latter check did not constitute legal tender, that it was not in a sum sufficient to pay the principal and accrued interest, and that the endorsement on the back prevented it from being an unconditional tender, and the court did not err in admitting it over these objections. Such check is admissible in evidence for the purpose of throwing light on the question of whether or not there was malice on the part of the prosecutor, for whatever probative value the jury might see fit to give it.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Action by William Auld against Colonial Stores, Inc., V. D. Young and the Merchants' Protective Association, Inc., for malicious prosecution. To review a judgment granting a nonsuit in favor of each of the defendants, the plaintiff brings error, and to review a ruling admitting in evidence a certain check, Colonial Stores, Int., brings cross-error.
Judgment reversed on main bill of exceptions as to V. D. Young and the Merchants' Protective Association, Inc., and affirmed as to Colonial Stores, Inc., and affirmed on cross-bill of exceptions.
William Auld, the plaintiff in error, brought a petition in the Superior Court of DeKalb County, Georgia, against the defendants in error for malicious prosecution. Briefly stated, the facts are that on January 15, 1943, William Auld went to one of the Atlanta stores of the Colonial Stores, Inc., and made the purchase of certain groceries.
He lacked 3 cents having enough money to pay the bill, so he wrote a check for the sum of $1. This...
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