Morgan v. Mize

• Court: Georgia Court of Appeals
• Writing for the Court: EBERHARDT; All the judges of the whole court concur, except FELTON; FELTON
• Citation: Morgan v. Mize, 164 S.E.2d 565, 118 Ga.App. 534 (Ga. App. 1968)
• Decision Date: 03 October 1968
• Docket Number: Nos. 1,No. 43877,2,3,43877,s. 1
• Parties: Robert MORGAN v. J. R. MIZE et al

Page 565

164 S.E.2d 565

118 Ga.App. 534

Robert MORGAN v. J. R. MIZE et al.

No. 43877.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 3, 1968.

Rehearing Denied Oct. 18, 1968.

J. E. Wilson, Hapeville, for appellant.

Eugene Cline, Marion W. Cornett, Jr., Atlanta, for appellees. Syllabus Opinion by the Court

EBERHARDT, Judge.

1. A judgment entered upon a directed verdict not actually signed by the jury is not void or illegal. C.P.A. § 50(a) (Code Ann. § 81A-150(a)); Bennett v. Associated Food Stores, Ga.App., 165 S.E.2d 581. See also Sullivan v. State, 29 Ga.App. 377, 115 S.E. 290, and cases cited.

2. (a) 'In a suit for malicious prosecution the gravamen of the action is the want of probable casue on the part of the person instituting the prosecution. Tanner-Brice Co. v. Barrs, 55 Ga.App. 453, 454(5), 190 S.E. 676. And whether the plaintiff was guilty or innocent of the charge for which he was prosecuted is not material. Tanner-Brice Co. v. Barrs, supra, division 2. 'The burden of proving the want of probable cause is on the plaintiff' (Auld v. Colonial Stores, 76 Ga.App. 329, 335, 45 S.E.2d 827, 834), and he does not in any reasonable sense carry this burden unless he shows by his evidence that, under the facts as they appeared to the prosecutor at the time of the prosecution, the prosecutor could have had no reasonable grounds for believing the plaintiff to be guilty of the charge for which he was prosecuted. Auld v. Colonial Stores, supra.' Barber v. Addis, 113 Ga.App. 806(1), 149 S.E.2d 833.

(b) "The probable cause referred to has been 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." Hicks v. Brantley, 102 Ga. 264, 269, 29 S.E. 459, 461. Ordinarily the existence of probable cause is a question for the jury, but where the material facts are not in dispute, the question becomes one of law for the court. Woodruff v. Doss, 20 Ga.App. 639, 93 S.E. 316; Tanner-Brice Co. v. Barrs, (55 Ga.App. 453, 190 S.E. 676) supra.' Barber v. Addis, 113 Ga.App. 806(2), 149 S.E.2d 833. Where it is clear from the evidence that the prosecutor did have probable cause for the prosecution of the plaintiff, a verdict for the defendant is demanded. Barber v. Addis, 113 Ga.App. 806(3), 149 S.E.2d 833, supra; Turner v. Bogle, 115 Ga.App. 710, 155 S.E.2d 667.

(c) There was no error in directing a verdict in favor of the defendants in this action for a malicious prosecution of plaintiff for giving a worthless check in violation of Code Ann. § 13-9933, since probable cause appears from the facts that defendant hotelkeepers accepted the company check signed by plaintiff in payment of a hotel bill of employees of the company, upon acceptance of which the payees released their innkeeper's lien upon the employees' impounded baggage and surrendered it to them; that after the baggage was released and the employees checked out of the hotel, the check was deposited at the bank and was subsequently returned for insufficient funds; and that sometime later defendants went to the Fulton County courthouse to see what could be done about the check, explained the situation to the person to whom he was directed and then signed the warrant affidavit which the officials prepared. Cf. Barber v. Addis, 113 Ga.App. 806(3), 149 S.E.2d 833, supra. Since the determination of probable cause turns upon the facts within the knowledge of the prosecutor and not upon plaintiff's guilt or innocence of the charge for which he was prosecuted, a different result is not required here because of the fact that plaintiff, unknown to defendants, may not have intended to issue the check to defendants immediately but may have put it into his filing cabinet after signing it with an intention of holding it until there were sufficient funds in the bank for it to clear, whereupon the check disappeared. Nor are cases such as Vasser v. Berry, 85 Ga.App. 435, 69 S.E.2d 701 applicable here, inasmuch as the check was not accepted in payment of a pre-existing debt and for no present consideration but instead was accepted as and for cash, whereupon the innkeeper's lien upon the baggage was released.

The testimony discloses that employees of Ace Weatherproofing Company, of which the defendant was vice president, went to the Gordon Hotel for lodging. They were without funds and asked the hotel clerk to call Ace's manager, which was done, and he committed the company to payment of the bill for lodging. The hotel sent Ace a statement for their lodging, but when the money did not come back forthwith, baggage of the employees was impounded under the innkeeper's lien. Shortly afterward the check was brought in by somebody, delivered to the clerk, and the baggage was released. The check was deposited but returned by the bank for insufficient funds, was redeposited and again returned. The cherk of Ace, numbered 2723, was payable to the Gordon Hotel, signed by the defendant on behalf of Ace, and was not post-dated. The bill from the hotel, which plaintiff introduced as an...