Meyers v. Glover
| Citation | 152 Ga.App. 679,263 S.E.2d 539 |
| Decision Date | 04 December 1979 |
| Docket Number | 58989,No. 58547,Nos. 58547,s. 58547,58547 |
| Parties | MEYERS v. GLOVER et al. |
| Court | United States Court of Appeals (Georgia) |
Barry Staples, Marietta, for appellant.
Ferrin Y. Mathews, Malcolm J. Hall, Richard B. Eason, Jr., Duane B. Jackson, Atlanta, for appellees.
Malicious arrest, false imprisonment, and malicious prosecution. The evidence indicates that on December 16, 1976, the appellant Meyers passed through Hartsfield airport after debarking from an airplane. He recovered his baggage and proceeded to leave the terminal facility. It is undisputed that he did not show his baggage claim check to the security guard before exiting the terminal. There is disagreement as to the next incident but the evidence establishes either that a security guard, appellee Smith, stopped Meyers and asked to see his baggage checks and Meyers bruskly refused, or that Smith rudely accosted Meyers by grabbing the baggage and demanded to see the baggage checks. It is not disputed that Meyers refused to show the baggage claim checks. Meyers admitted that he was angry and asked Smith to take him (Meyers) to a superior. Smith was employed by A. R. C. Security Services, Inc., another appellee. Smith escorted Meyers to the terminal police office where it is alleged that Meyers was asked once again to display his claim checks and was told of the necessity. It is apparent that Meyers once again refused. The police officers manning the station were the appellees Glover and Stanford. Meyers was placed under arrest by these two officers, Glover and Stanford, charged with creating a disturbance and interfering with another's lawful occupation. Meyers was incarcerated for a matter of hours based upon these charges until he was released upon bond. Subsequently Meyers was bound over on a charge of obstruction of a police officer. The charge of creating a disturbance was dismissed. The charge of obstruction of a police officer was placed on NOD (not on docket) which is similar to the dead docket in the State Court of Fulton County. The statute of limitation thus barred prosecution after the term of two years, which occurred on December 15, 1978. Appellant filed the present complaint against all appellees on January 3, 1979. All appellees moved for summary judgment on the ground that the complaint was barred by the statute of limitation. The trial court granted the motions on behalf of all appellees. This appeal followed. Held :
1. These two appeals (Nos. 58547 and 58989) arise out of the same facts and involve the same parties. Accordingly, the appeals are consolidated and will be treated as one.
2. As to the counts of the complaint alleging malicious arrest and false imprisonment, we conclude that the trial court did not err in granting summary judgment to all appellees based upon the statute of limitation. Malicious arrest and false imprisonment are injuries against the person that must be brought within two years of the actual arrest or imprisonment. Hutcherson v. Durden, 113 Ga. 987, 989, 39 S.E. 495; Johnson v. Bradstreet Co., 87 Ga. 79, 13 S.E. 250. We reject Meyers' contention that the running of the statute was tolled as to these counts of the complaint until the time when no further action could be taken on the criminal prosecution, which is asserted to be December 15, 1978. The right of action for malicious arrest and false imprisonment accrued, if at all, at the time of the arrest and at the time of the release from imprisonment and not upon finalization of the causally related and subsequently emergent complaint of malicious prosecution. Gordon v. West, 129 Ga. 532, 536-37, 59 S.E. 232.
3. For reasons hereinafter set forth, we find merit in the argument that the trial court erred in granting summary judgment as to the malicious prosecution count. Appellant urges that there was no determination of the offense of obstruction of an officer, either in his favor or adverse to his interests, prior to the barring by the running of the statute on December 15, 1978, which precluded the state from taking any further action on the offense of obstruction. Meyers properly contends that he could not bring his action for malicious prosecution until the state's time for prosecution had expired because only after the state's right to prosecute was terminated was there any result as to the obstruction charge placed against him. We will assume that the running of the statute of limitation is a final bar to prosecution and amounts to a favorable determination in favor of the defendant. (But see Courtenay v. Randolph, 125 Ga.App. 581, 583, 188 S.E.2d 396; Newman v. State, 121 Ga.App. 692, 694, 175 S.E.2d 144). Under the circumstances of this case, the statute of limitation was tolled as to an action for malicious prosecution until a final result was obtained in the obstruction charge, so that appellant's malicious prosecution action was timely.
Nevertheless, insofar as the trial court concluded that the malicious prosecution count merged with the false arrest count, the trial court was in error. Under the facts of this case, a warrant was not necessary to arrest Meyers for an offense committed in the presence of the arresting officers.
We further observe that before an action for malicious prosecution can be pursued, not only must there have been a termination of the criminal case favorably to the accused, but an absence of probable cause for the prosecution must appear. Sykes v. South Side Atlanta Bank, 53 Ga.App. 450, 452(2), 186 S.E. 464. The burden of showing an absence of such cause is on the plaintiff accused (Darnell v. Shirley, 31 Ga.App. 764, 122 S.E. 252), and properly is a question of law where the averments of proof are lacking or fail sufficiently to negative presumptions of law that probable cause existed. Sykes v. South Side Atlanta Bank, supra, 53 Ga.App. p. 452, 186 S.E. 464. The binding over of a defendant is prima facie, though not conclusive, evidence of probable cause. Luke v. Hill, 137 Ga. 159(5), 73 S.E. 345.
In this case, Meyers alleged by conclusions that the arrest was unlawful, and the imprisonment malicious and without probable cause. Yet at no time did Meyers deny that he refused to show the baggage claim checks or that the demand by Smith or the police officer to see the checks was...
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