Barnes v. Gossett Oil Co.
| Decision Date | 13 May 1937 |
| Docket Number | 26143. |
| Citation | 192 S.E. 254,56 Ga.App. 220 |
| Parties | BARNES v. GOSSETT OIL CO. et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 16, 1937.
Syllabus by Editorial Staff.
Where criminal process is sued out without probable cause and an arrest is made, if warrant is dismissed or not followed up the remedy is for malicious arrest.
Where a criminal process is sued out without probable cause and an arrest is made, if the action is carried on to a prosecution an action for malicious prosecution is the exclusive remedy and an action for malicious arrest will not lie.
On Motion for Rehearing.
Under evidence that, at time buyer gave check to seller, buyer informed seller that buyer did not have sufficient money in bank to cover check, and that it was understanding that check was to be paid as soon as buyer obtained money and could deposit it, question of existence of probable cause and existence of malice on part of seller, where prosecution was instituted when check was returned for insufficient funds was for jury (Code 1933, § 13-9933; Acts 1914, p. 86).
Error from Superior Court, Meriwether County; L. B. Wyatt, Judge.
Action by A. J. Barnes, Jr., against the Gossett Oil Company and others. To review an adverse judgment, plaintiff brings error.
Reversed.
N. F. Culpepper, of Greenville, and G. C. Thompson, of Manchester, for plaintiff in error.
Beck, Goodrich & Beck, of Griffin, and J. F. Hatchett, of Greenville, for defendant in error.
Syllabus OPINION.
1. If a criminal process is sued out without probable cause and an arrest is made under it, the remedy of the accused depends on whether or not he is actually prosecuted under the warrant. After the arrest, if the warrant is dismissed or not followed up, the remedy is for malicious arrest. But, if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie. Grist v. White, 14 Ga.App. 147, 80 S.E. 519. Therefore, where a petition was brought in two counts, one for malicious prosecution and the other for malicious arrest, and it affirmatively appeared from the allegation of the petition that the plaintiff had actually been prosecuted under the criminal process sued out by the defendant, the action for malicious arrest was not maintainable, and the court did not err in striking it on demurrer.
2. Where an action is brought for malicious prosecution under Code, § 105-801, which provides that "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," and it appears from the evidence that the defendant made an affidavit on which a warrant was issued, charging plaintiff with the violation of Code, § 13-9933, in that he did give to the defendant a check on a named bank, knowing that at the time he did not have sufficient funds in or credit with such bank (on which charge the plaintiff was acquitted), and it further appeared from the evidence that before the time the plaintiff gave to defendant the check in question that the defendant, a wholesale dealer in gasoline and oil, had sold defendant his products for which plaintiff had given his checks, many of them being returned by the bank for insufficient funds, and the plaintiff testified that it had, upon each occasion where a check was returned, been the understanding between him and the defendant in these transactions that plaintiff did not have the money in the bank sufficient to cover the checks, and that they were to be paid as soon as he obtained the money and could deposit it, and further testified that at the time he gave the check in question he told defendant that he did not have sufficient funds in the bank to cover it, and there were other facts and circumstances which would have authorized the jury to find that the defendant did actually extend credit to plaintiff at the time the check was given and that it amounted to no more than a promise to pay in the future, which facts, if true, would not authorize a conviction under the above section, the court committed error in granting a nonsuit. The gravamen of the offense charged against the plaintiff by defendant is an intent to defraud (Neidlinger v. State, 17 Ga.App. 811, 88 S.E. 687), which is not shown where there is an extension of credit at the time the check is given, and the question whether or not the criminal process was instituted without probable cause and with malice should, under facts authorizing conflicting inferences, have been submitted to the jury under proper instructions from the court. Hearn v. Batchelor, 47 Ga.App. 213, 170 S.E. 203.
Judgment reversed.
I am of the opinion that the demurrer to the second count (malicious arrest) was properly sustained. This count failed to allege that the order of arrest was vacated or the warrant dismissed before the institution of this action. Grist v. White, 14 Ga.App. 147, 149, 80 S.E. 519.
On Motion for Rehearing.
On motion for rehearing it is insisted by counsel for defendant in error that this court in arriving at its decision "overlooked a material fact, a statute, and decisions which are controlling as authority and which would require a different judgment from that rendered." A brief summary of the points urged in the motion are (1) that we overlooked the Act of 1914, P. 86; (2) that this act was not repealed by the Act of 1919, p. 220 (), or the Act of 1924, p. 194; (3) that this act "makes it a misdemeanor to issue a check for a present consideration, without sufficient funds to meet it, and failing to deposit the necessary funds within 30 days thereafter"; (4) that under this act "it matters not what the intention of the party was who gave the check, a failure to deposit the money in 30 days was...
To continue reading
Request your trial