Bi-Lo Inc. v. Stanciel

• Decision Date: 05 January 1979
• Docket Number: BI-LO,No. 56855,56855
• Citation: 251 S.E.2d 834,148 Ga.App. 614
• Parties: INC. v. STANCIEL.
• Court: Georgia Court of Appeals

Page 834

251 S.E.2d 834

148 Ga.App. 614

BI-LO INC. v. STANCIEL.

No. 56855.

Court of Appeals of Georgia.

Submitted Oct. 30, 1978.

Decided Jan. 5, 1979.

Fulcher, Hagler, Harper & Reed, James Walker Harper, Augusta, for appellant.

Jay M. Sawilowsky, Augusta, for appellee.

BELL, Chief Judge.

This is a suit for malicious prosecution which arose out of defendant's causing the arrest of plaintiff pursuant to warrant for the crime of issuing and uttering a worthless check. A jury returned a verdict for plaintiff and judgment was entered. Held:

1. The court denied defendant's motion for directed verdict. The essential elements of this tort are: "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. Defendant contends that the evidence demands the conclusion that defendant had probable cause to prosecute plaintiff for the crime of issuing and uttering a worthless check. The following material facts are not disputed. On January 4, 1977, the defendant through one of its employees cashed a check which was purportedly written and presented by plaintiff. The drawee bank refused payment because the account had been closed. The check was a forgery. Plaintiff's blank checks from this bank had been stolen previously and after the account had been closed. There is, however, no evidence that defendant had any knowledge that plaintiff's signature on the check was forged At the time it was accepted by defendant. On January 7, 1977, defendant was advised by plaintiff's wife during a phone conversation that plaintiff had not written the check. Later, one of defendant's employees attempted to reach plaintiff via phone but was unsuccessful as it was learned that plaintiff had obtained a private number. On January 12, 1977, a letter was also dispatched via certified mail by defendant to plaintiff asking that the check be redeemed but was returned unclaimed around February 12, 1977. On February 17, 1977, based on the affidavit of an employee of defendant, a warrant for the arrest of plaintiff was issued. On February 24, 1977, plaintiff's wife personally visited defendant's store and established that the check was forged. A subordinate of defendant called the sheriff's office and requested that the unexecuted warrant for plaintiff's arrest be held. On March 3, 1977, plaintiff's wife was arrested on another forged check. Plaintiff while attempting to obtain her release by posting bail was then arrested on the warrant in this case. After effecting his release on bond, plaintiff again visited defendant's store and one of defendant's employees then caused the warrant to be dismissed. One of defendant's employees testified that it was defendant's policy to collect bad checks by causing the issuance of criminal warrants against the person writing the check. This evidence raised an issue of fact for jury resolution on the question of lack of probable cause and malice. The evidence that defendant was placed on notice that plaintiff may not have written the check prior to the issuance of the warrant raised a jury question as to whether a reasonably prudent person would have made further inquiry before prosecuting. Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 163 S.E.2d 256. The testimony that it was defendant's policy to issue criminal process to collect its money on bad checks is also some evidence of lack of probable cause as well as malice. Baird v. Collier, 123 Ga.App. 276, 180 S.E.2d 577. The evidence did not demand a verdict for defendant and the trial court correctly denied the motion.

2. The court properly charged that a misdemeanor case in Georgia cannot be dismissed without an order of court. Defendant did not except to this charge, but did object to the instruction that ignorance of the law is no excuse. Defendant's agents testified...