Calhoon v. Mr. Locksmith Co., Inc., A91A0076

• Citation: 409 S.E.2d 226,200 Ga.App. 618
• Decision Date: 19 June 1991
• Docket Number: No. A91A0076,A91A0076
• Parties: CALHOON v. MR. LOCKSMITH COMPANY, INC. et al.
• Court: United States Court of Appeals (Georgia)

Page 226

409 S.E.2d 226

200 Ga.App. 618

CALHOON v. MR. LOCKSMITH COMPANY, INC. et al.

No. A91A0076.

Court of Appeals of Georgia.

June 19, 1991.

Reconsideration Dismissed July 24, 1991.

Theodore L. Marcus, Daniel W. Latimore, Jr., Atlanta, for appellant.

Bassett, Gerry, Friend & Koenig, Rhonda L. Klein, William D. Friend, Atlanta, for appellees.

SOGNIER, Chief Judge.

Beverly Calhoon instituted an action against Mr. Locksmith Company, Inc. and its employee, Luann Gavin, alleging malicious prosecution. The trial court granted the defendants' motion for summary judgment, and Calhoon appeals.

The record reveals that on February 22, 1989, appellant sought the services of a locksmith when her son locked himself out of his car. She contacted Master Locksmith Co., whose services she had used before, arranged for a key to be made, left her personal check in the amount of $68.50, which was the charge quoted to her by Master Locksmith's employee Renate Detlefs, and enlisted a neighbor to point out the car when the locksmith arrived. When she returned home some time later, appellant learned from her neighbor that the locksmith had found appellant's son's key on the floorboard of the car and, since it was not necessary to make a new key, the charge would be "around thirty dollars" instead of the amount originally quoted to her. Appellant averred, in her affidavit submitted in opposition to appellees' motion for summary judgment, that at the time she was unaware that Master Locksmith itself was unable to perform the requested services and had contracted with Mr. Locksmith (hereinafter appellee) to perform them. Appellant averred that she called Master Locksmith and requested that Detlefs hold her check, since the work had cost less, and that Detlefs had agreed to do so. Appellant returned to Master Locksmith several weeks later to pick up her check and pay her bill, but Detlefs was not present, and the clerk on duty knew nothing about the transaction.

Appellant admits that on May 25, 1989, she received a letter from appellee notifying her that she had given it a bad check and giving her ten days to tender full payment for services rendered in the amount of $27.50 plus a service charge of $15.00. On July 11, 1989, appellant paid Master Locksmith $42.50. On the same day appellee, through its employee Gavin, swore out a warrant for appellant's arrest. At the hearing on the bad check charge, an order of nolle prosequi was entered at the request of the prosecutor.

1. Appellant contends summary judgment was improper because genuine issues of material fact remain for resolution by a jury. Appellant argues that because the check in issue was "drawn, issued, or indorsed to" Master Locksmith, appellee was not the "holder" of the check as defined in OCGA § 11-1-201(20), and therefore had no right to prosecute appellant pursuant to OCGA § 16-9-20.

According to the affidavits of Allan Aitken, president of appellee, and Renate Detlefs, that company was in possession of the check and had the express authority of the payee, Master Locksmith, to "cash or deposit the check in any way it chose." It appears, therefore, that appellee was authorized to negotiate the check. However, the instrument was not properly endorsed by Master Locksmith, the payee, when presented to the bank by appellee for payment. Thus, the check did not meet the definition of "holder" in OCGA § 11-1-201(20) and, accordingly, we agree with appellant that appellee was not the "holder" of the check under OCGA § 11-1-201(20).

Nevertheless, the bank accepted the check as though it had been properly endorsed by Master Locksmith for negotiation. (We note that the question of the bank's liability for its actions, however, is not presented in this action.) Although we agree that appellee does not meet the definition of "holder" in OCGA § 11-1-201(20), nothing in that statute or in OCGA § 16-9-20 requires application of that definition to the criminal statute. Rather, OCGA § 11-1-201 states that all definitions therein are to be used "in this title"--that is, in Title 11 of OCGA, the Commercial Code. Because OCGA § 16-9-20 is not in the same title of the Code, by its terms OCGA § 11- 1-201(20), and specifically the definition of the term "holder," does not apply to OCGA § 16-9-20.

In construing the term "holder" in OCGA § 16-9-20, we are governed by established principles of statutory interpretation, including the cardinal imperative to look diligently for the intention of the legislature, keeping in view at all times both the "evil" and the "remedy." OCGA § 1-3-1(a). It is obvious that, among other purposes, OCGA § 16-9-20 was enacted to punish the criminal behavior of knowingly passing bad checks, and to protect those legally authorized to negotiate checks given for value. Black's Law Dictionary (5th ed., p. 658) defines a "holder" as "the person who has legally acquired possession of [a negotiable instrument] by indorsement or delivery, and who is entitled to receive payment of the instrument." Given the obvious purpose of OCGA § 16-9-20, and applying the principle of statutory construction embodied in OCGA § 1-3-1(b) that "[i]n all interpretations of statutes, the ordinary signification shall be applied to all words," we find that under the circumstances presented...