Coleman v. Allen

• Court: Georgia Supreme Court
• Writing for the Court: Bleckley, Chief Justice
• Citation: Coleman v. Allen, 79 Ga. 637, 5 S.E. 204 (Ga. 1887)
• Decision Date: 31 October 1887
• Parties: Coleman. vs. Allen.

79 Ga. 637

Coleman. vs. Allen.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

[COPYRIGHT MATERIAL OMITTED.]

Malicious Prosecution. Probable Cause. Words and Phrases. Charge of Court. Malice. Damages. Mortgages. Criminal Law. Evidence. Practice in Supreme Court. Before Judge Harris. City Court of Macon. March Term, 1887.

Reported in the decision.

Lofton & Moore; Bacon & Rutherford, for plaintiff in error.

Dessau & Bartlett, for defendant.

Bleckley, Chief Justice.

Allen mortgaged to Coleman & Newsom a mule and a one-horse wagon. Newsom died, and Coleman, as surviving partner, foreclosed the mortgage. A mortgage fi, fa. was issued; search was made for the property, and it was not found. Certain information came to Coleman indicating that the property had been disposed of by Allen. Coleman took the advice of counsel learned in the law, and, thereupon, made the requisite affidavit to impute an offence under §4600 of the code, charging that the property had been fraudulently disposed of, procured a war-rant for the arrest of Allen, and Allen was arrested, detained in custody upon the streets of Macon a few hours, and was then permitted to go home, on his promise made to the sheriff to return and give bond. Afterwards he returned and gave a bond for his appearance to answer the charge. At a subsequent term of the city court of Macon, another affidavit was made by Coleman charging that the property had been fraudulently sold and disposed of. Upon that affidavit an accusation was framed, and Allen was tried and acquitted; after which he brought his action against Coleman for malicious arrest and malicious prosecution, founding his action upon both proceedings, that is, the warrant, his arrest under it, and the subsequent prosecution in the city court. He laid damages in his declaration, generally, at a large sum; and alleged special damage in that he was put to expense in defending himself, and that he lost time, etc. On the trial he proved these special damages. The jury found for the plaintiff a verdict for $1,000. The defendant moved for a new trial, on various grounds, which motion was denied. It is the judgment refusing the new trial that we have now to review.

1. The general principle that, in an action for malicious prosecution, there can be no recovery without a concurrence of the want of probable cause with malice, is fully recognized. If probable cause and malice are both present, there can be no recovery; if they are both absent, there can be none. In this class of actions, it is only where malice is. present and probable cause is absent that there can be a recovery.

The 7th ground of the motion for a new trial complains of the charge of the court as follows: "Probable cause means nothing more than reasonable grounds. Probable cause is that apparent state of facts which seems to exist after reasonable and proper inquiry." The 8th ground complains that the court charged: " Now, whilst no man should be deterred from prosecuting a case on the criminalside of the court, where he honestly believes, after due and proper inquiry—either upon his own knowledge, or upon reliable information furnished by others, —that a crime has been committed, yet he must not act hastily or without ordinary caution or reasonable diligence in instituting a prosecution, and if he so acted without reasonable diligence, and hastily and unreasonably, he is responsible for damages." The 9th ground complains that the court charged: " See whether the defendant acted on probable cause and without malice or not; in other words, find out what his diligence was as to this matter. Take it all into consideration and see whether he acted with ordinary care, and as a man of ordinary prudence would act under the same circumstances, or as you would act under the same circumstances." Leaving out the last member of the last sentence, "or as you would act under the same circumstances, " the main objection urged against the charge, as it respects probable cause is, that it conflicts with section 29S3 of the code, which section reads thus: " 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." It is contended that this is exhaustive of all possible cases of the absence of probable cause; that unless a reasonable man would not be satisfied by the circumstances that the accuser had no ground for proceeding but his desire to injure the accused, there would be the presence of probable cause. We think this construction a mistaken one. The section declares that the question shall be one for the jury, under the direction of the court; but it does not leave the whole range of the question to the jury. It undertakes to settle an instance in which the court and jury shall recognize the absence of probable cause. That instance is, when the circumstances are such that the prosecution must be attributed solely to a desire to injure the accused. Of course, want of probable causeexists where there is no ground but the desire to injure. That is the extreme case of legal malice. But it does not follow that if a man has no ground but the desire to benefit his grandmother, probable cause might not be absent in that instance. The absence of probable cause is to be found in every case where there is no inducement for the prosecution except the desire to injure the accused. But it does not follow that this is exhaustive of all the instances of the want of probable cause; for the desire that actuates the accuser may be one of selfish or benevolent affection, may be one of self love or love for another, and wholly free from any independent wish to injure the accused, yet there may be absence of probable cause, and presence of legal malice. The phraseology of the code was doubtless taken from an observation of Chief Justice Tindal in Willans vs. Taylor, 6 Bingham, 90, in which it was said: " What shall amount to such a combination of malice and want of probable cause is so much a matter of fact in each individual case, as to render it impossible to lay down any general rule on the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." Some of the language I have quoted from the motion for a new trial may not be literally accurate, but construed in the light of the whole charge, there is no substantial error in it. It deals rather with what is probable cause than what is not; and of course the affirmative of the matter is open to consideration if the negative is. If it is proper for the jury to inquire what is not probable cause, in conducting that inquiry, it must be proper for them to consider what is probable cause.

The view of the judge below corresponds substantially with that embraced in the authorities which treat of probable cause. See 2 Add. on Torts, by Wood, §853, and notes; 3 Suth. Dam. 707; 1. Hill. Torts, 429 et seq.; Bacon vs. Towne, 4 Cush. 238, 239; Griffis vs. Sellars, 31 Am. Dec. 422. Cases recognizing the duty of caution, avoidance ofhaste, etc., are McGum vs. Brackett, 33 Me. 331; Long vs. Rodgers, 19 Ala. 338; Shafer vs. Loucks, 63 Barb. 426; Humphries vs. Parker, 52 Me. 505, and many others.

But the latter part of the charge cannot be upheld, — that part which refers to the jury and makes them the standard of propriety. That much was error, and for that error we shall reverse the judgment of the court.

2. Before passing from the subject, however, I wish to observe that the doctrine pressed upon us in the argument, and sustained by the opinion of two members of the court of exchequer in the case of Stevens vs. The Railway Co. and Lander, 10 Exch 352, we are unwilling to recognize as applicable to this case. It might have been properly applied to the case which was before the court at that time, because there were circumstances indicating that the charge had been trumped up, but we see nothing in this case that so indicates. The doctrine announced by Alderson, Baron, was this: "Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts in that way. And it appears to me, in the present case, that the prosecution of a person for the purpose of frightening others, and thereby deterring them from committing depredations upon the property of the company, is not a motive of such a direct character as to afford a legitimate foundation for a criminal prosecution." And Martin, Baron, in the same case, said: " I think that the fact of the defendant. Lander, prosecuting the plaintiff, not for the purpose of punishing him, but to make an example to others, is ample evidence of malice." In so far as any general test of the right purpose of instituting a prosecution is here hinted at, it seems at variance with sound principle. The most elevated motive that can possibly be entertained for prosecuting anybody is to make an example for the benefit of the public; the next is to make an example for the benefit of individuals other than self; and the next is to make an example for the benefitof one\'s self. The bringing of anybody to justice, without regard to its effect for good by way of example, is excusable but not commendable. The motive of the prosecution testified to in this case was a proper one, being the desire to deter others from committing crime by making an example of the alleged criminal. But no one has a right to make any person an example unless he is guilty; and it will not do to proceed against him for example or anything else unless you believe him to be guilty, and have good and probable grounds upon which to base the opinion; but I cannot see anything to criticize in the motive of a prosecutor who candidly avows that he does not want to hurt...