Davis v. Stephens

• Court: Georgia Court of Appeals
• Writing for the Court: BROYLES, C. J
• Citation: Davis v. Stephens, 45 Ga.App. 227, 164 S.E. 111 (Ga. App. 1932)
• Decision Date: 30 April 1932
• Docket Number: No. 22136.,22136.
• Parties: DAVIS. v. STEPHENS et al.

45 Ga.App. 227

164 S.E. 111

DAVIS.

v.STEPHENS et al.

No. 22136.

Court of Appeals of Georgia, Division No. 1.

April 30, 1932.

Syllabus by Editorial Staff.

Error from City Court of Newnan; W. L. Stallings, Judge.

Suit by W. D. Davis against J. A. Stephens and others. Judgment for defendants, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Cecil V. Whiddon and C. Mortimer Mason, both of Atlanta, for plaintiff in error.

R. S. Arnold and Hall & Jones, all of New-nan, for defendants in error.

Syllabus Opinion by the Court.

BROYLES, C. J.

1. Special grounds 5 and 8 of the motion for a new trial, complaining of the court's refusal to give certain requested charges to the jury, are not in proper form for consideration, since it is not alleged in either ground that the requested charge was pertinent and applicable to the facts of the case. Ward v. Gardner, 35 Ga. App. 569(2), 134 S. E. 346.

2. The following charge was not error: "I charge you that the burden of proof in this case is on the plaintiff to make out his case by a preponderance of the evidence."

3. The remaining special ground of the motion for a new trial, complaining of the refusal of the court to permit a witness for the movant to answer a certain question propounded to him on the direct examination, is too defective to raise any question for consideration, since it is not stated therein that the court was informed as to what answer would be given by the witness if he were allowed to answer the question. Griffin v. Henderson, 117 Ga. 382 (2), 43 S. E. 712.

4. "In actions for malicious prosecution, the question is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe, --whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution. Johnson v. Miller, 63 Iowa, 529, 17 N. W. 34 [50 Am. Rep. 758]. Probable cause is 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." Hartshorn v. Smith, 104 Ga. 235, 239, 30 S. E. 666, 667.

5. "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 thatthere can be a recovery." Coleman v. Allen, 79 Ga. 637, 640, 5 S. E. 204, 206, 11 Am. St Rep. 449.

(a) "The mere fact that the prosecution was abandoned, or that the person charged with a criminal offense has, upon trial therefor, been acquitted is not sufficient to prove malice or want of probable cause." Thornton v. Story, 24 Ga. App. 503 (3), 101 S. E. 309, and citations.

6. "The fact...