Barber v. Addis

• Court: Georgia Court of Appeals
• Writing for the Court: FRANKUM; FELTON, C.J., and PANNELL
• Citation: Barber v. Addis, 149 S.E.2d 833, 113 Ga.App. 806 (Ga. App. 1966)
• Decision Date: 25 May 1966
• Docket Number: No. 41977,No. 1,41977,1
• Parties: Harold L. BARBER v. Derrell ADDIS et al

Page 833

149 S.E.2d 833

113 Ga.App. 806

Harold L. BARBER v. Derrell ADDIS et al.

No. 41977.

Court of Appeals of Georgia, Division No. 1.

May 25, 1966.

Rehearing Denied June 9, 1966.

L. D. Skaggs, Athens, for appellant.

Erwin, Birchmore & Epting, Nickolas P. Chilivis, Athens, for appellees.

Syllabus Opinion by the Court

FRANKUM, Judge.

1. In a suit for malicious prosecution the gravamen of the action is the want of probable cause on the part of the person instituting the prosecution. Tanner-Brice Co. v. Barrs, 55 Ga.App. 453, 454(5), 190 S.E. 676. And whether the plaintiff was guilty or innocent of the charge for which he was prosecuted is not material. Tanner-Brice Co. v. Barrs, supra, division 2. 'The burden of proving the want of probable cause is on the plaintiff' (Auld v. Colonial Stores, 76 Ga.App. 329, 335, 45 S.E.2d 827, 834), 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. Auld v. Colonial Stores, supra.

2. 'The probable cause referred to 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 ". Hicks v. Brantley, 102 Ga. 264, 269, 29 S.E. 459, 461. Ordinarily the existence of probable cause is a question for the jury, but where the material facts are not in dispute, the question becomes one of law for the court. Woodruff v. Doss, 20 Ga.App. 639, 93 S.E. 316; Tanner-Brice Co. v. Barrs, supra.

3. Accordingly, where, as was ruled in the Woodruff case, supra, the undisputed facts make it clear that the prosecutor did have probable cause for the prosecution of the plaintiff, a verdict for the plaintiff would be contrary to law. In the instant case, the undisputed facts show that the prosecutor, as manager of a supermarket, received a check bearing a signature which was the same as the name of the plaintiff; that this check was cashed by an employee of the store, who testified that he knew the plaintiff and remembered cashing the check for the plaintiff; that the check upon presentation for payment was returned and not paid by the bank upon which it was drawn; and that after the...