Munford, Inc. v. Anglin

• Decision Date: 07 March 1985
• Docket Number: No. 68998,68998
• Citation: 329 S.E.2d 526,174 Ga.App. 290
• Parties: MUNFORD, INC. v. ANGLIN.
• Court: Georgia Court of Appeals

Page 526

329 S.E.2d 526

174 Ga.App. 290

MUNFORD, INC. v. ANGLIN.

No. 68998.

Court of Appeals of Georgia.

March 7, 1985.

Rehearings Denied March 21, 1985

and March 29, 1985.

Certiorari Denied May 1, 1985.

Foy S. Horne, Jr., Gary B. Blasingame, David E. Barrett, Athens, for appellant.

Denny C. Galis, Athens, for appellee.

CARLEY, Judge.

Appellee filed a complaint against appellant, purporting to set forth claims of malicious prosecution and gross negligence. The case proceeded to trial, and the jury returned a verdict for appellee. Appellant appeals.

1. Appellant enumerates as error the denial of its motion for a directed verdict as to appellee's claim of malicious prosecution. The relevant facts are as follows: The manager of a Majik Market store that was owned and operated by appellant, witnessed an individual pump ten dollars' worth of gasoline into an automobile from one of the store's gasoline pumps and then drive away without paying. The store manager believed that the individual was appellee, who was a regular customer of the store. The following morning, the store manager notified the police that appellee had stolen gasoline. Appellee was later questioned by a police officer, at which time he denied taking the gasoline. There is evidence that, at this time, appellee also informed the police officer of his whereabouts during the evening in question and of the identities of several alibi witnesses. There is further evidence that appellee produced receipts for gasoline purchased elsewhere on the evening in question. Appellee was questioned again by the police several days later, at which time he gave them the same information. Subsequently, appellant caused a warrant to be issued for appellee, and he was arrested. A committal hearing was held, which resulted in a finding that probable cause was lacking. Accordingly, the charge against appellee was dismissed.

"The essential elements of a claim for malicious prosecution are '(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. [Cits.]' [Cit.]" Wilson v. Bonner, 166 Ga.App. 9, 303 S.E.2d 134 (1983). Appellant first asserts that the evidence demanded a finding that probable cause existed for appellee's arrest.

" 'In determining whether or not there was a total want of probable cause for a criminal prosecution alleged to have been maliciously carried on, the question is not whether the accused was actually guilty of the offense with which he was so charged, but the real question is whether the prosecutor had reasonable cause so to believe--that is, whether the circumstances at the time of the prosecution were such as to create in the mind of the prosecutor a reasonable belief that there was probable cause for the prosecution.' [Cit.]" Jones v. Walker, 167 Ga.App. 286, 287, 306 S.E.2d 315 (1983).

In the instant case, even if, based upon the initial, albeit mistaken, eyewitness identification of appellee as the perpetrator, appellant had probable cause to commence the prosecution of appellee, a directed verdict for appellant would not necessarily be authorized. A claim for malicious prosecution may also be based upon a want of probable cause in the continuation of a prosecution. " '[E]ven if on instigating the prosecution the prosecutor had probable cause at the commencement, if he afterwards acquired knowledge, or the reasonable means of knowledge, that the charge was not well founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury.' [Cit.]" (Emphasis supplied.) Wilson v. Bonner, supra, 166 Ga.App., at 11, 303 S.E.2d 134. " 'While a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.' [Cit.]" Voliton v. Piggly Wiggly, 161 Ga.App. 813- 814, 288 S.E.2d 924 (1982). See also Melton v. LaCalamito, 158 Ga.App. 820, 823(2)(b), 282 S.E.2d 393 (1981).

Based upon the foregoing, we find that there was some evidence that, in the exercise of slight diligence, appellant would have had facts brought to its attention which showed that the charge against appellee was not well founded. It is undisputed that, at all times, appellee had available alibi witnesses and receipts for gasoline purchased elsewhere that evening. There was also evidence that the police had been apprised of this information prior to appellant's causing a warrant to be issued for appellee's arrest. Moreover, at no time did appellant contact appellee concerning the charges brought against him. Therefore, the existence of probable cause was a question for the jury. See generally Melton v. LaCalamito, supra at 824, 282 S.E.2d 393; Wilson v. Bonner, supra, 166 Ga.App., at 13, 303 S.E.2d 134; Auld v. Colonial Stores, 76 Ga.App. 329, 330(2)(E), 45 S.E.2d 827 (1947).

Appellant also contends that a directed verdict on appellee's malicious prosecution claim was demanded because there was no evidence of its malice. " 'The "malice" contemplated by law in an action for malicious prosecution ... "may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual." ' [Cit.] From the circumstances present in this case, the jury could infer malice. [Cits.]" Melton v. LaCalamito, supra, 158 Ga.App., at 824-825, 282 S.E.2d 393. "Malice can be inferred from a total lack of probable cause and this also is a jury question. [Cit.]" Jones v. Walker, supra, 167 Ga.App., at 287, 306 S.E.2d 315.

There being evidence supportive of appellee's claim for malicious prosecution, the trial court did not err in denying appellant's motion for directed verdict.

2. Following the close of appellee's evidence, appellant also made a motion for directed verdict on appellee's claim for "gross negligence." Appellant enumerates the trial court's denial of this motion as error.

The specific facts ostensibly supporting appellee's gross negligence claim are as follows: At the Majik Market store involved in this case, a certain gasoline pumping system was utilized whereby a customer could first pump gasoline, and afterwards pay for the amount of gasoline pumped. Following payment by the customer, that pump was cleared for immediate use by the next customer. Appellee asserts that this type of system encourages individuals to drive off without paying and, consequently, results in the possible misidentification of individuals who allegedly have driven off without paying. Appellee further contends that a "pre-pay" system was available to appellant, which system would have prevented "drive offs" and "misidentifications." A pre-pay system requires that a customer first pay the station attendant for the amount of gasoline desired. The pump is then cleared so that only the amount of gasoline purchased by the customer may be pumped. Appellee, in essence, asserted that appellant had a duty to prevent "misidentifications," and that appellant's use of the particular gasoline pumping system which encouraged "drive offs" and caused "misidentifications," rather than the "pre-pay" system, constituted gross negligence.

A necessary element of a cause of action in negligence is some loss or damage to the plaintiff's legally protected interest as a result of the defendant's alleged breach of a legal duty. See Lee Street Auto Sales v. Warren, 102 Ga.App. 345, 347(1), 116 S.E.2d 243 (1960). As to his gross negligence claim, appellee neither alleged nor showed any injury or damage as the result of appellant's misidentification, other than his arrest and prosecution. " 'Different facts may be alleged, separately or cumulatively, to show the same wrong, and the number and variety of the facts alleged will not make more than one cause of action, so long as but one wrong is shown.' " New York Life Ins. Co. v. Bradford, 55 Ga.App. 248, 256, 189 S.E. 914 (1937). " '( [F]rom) a single wrong but one cause of action can arise. So long as a plaintiff pleads but one wrong, he does not set up more than one cause of action.' [Cits.] ... 'If there is substantial identity of wrong (which necessarily includes identity of the right violated), there is substantial identity of cause of action.' [Cits.]" Ellis v. Kite, 107 Ga.App. 237-238, 129 S.E.2d 547 (1963).

When one is injured as the result of a wrongful prosecution, the cause of action which arises is for malicious prosecution. OCGA § 51-7-40. Appellee's gross negligence claim in the instant case is no more than an attempt to create a claim for "negligent prosecution." The tort of malicious prosecution cannot be governed by the rules applicable to the tort of negligence. See generally Stewart v. Williams, 243 Ga. 580, 581, 255 S.E.2d 699 (1979), wherein the court held there is no tort of negligent false imprisonment. Instead of the elements of negligence, the law requires that one who alleges injury as the result of a prosecution must prove lack of probable cause, as well as malice. This is because "[m]alicious prosecution is an action which runs counter to obvious policies of the law in favor of encouraging proceedings against those who are apparently guilty.... It never has been regarded with any favor by the courts, and it is hedged with restrictions which make it very difficult to maintain." Prosser, Handbook of the Law of Torts, p. 841 (4th Ed.1979). See also Price v. Cobb, 63 Ga.App. 694, 11 S.E.2d 822 (1940).

Appellee set forth and proved a cause of...