South Ga. Grocery Co v. Banks, 24960.

• Decision Date: 18 October 1935
• Docket Number: No. 24960.,24960.
• Parties: SOUTH GEORGIA GROCERY CO. v. BANKS.
• Court: Georgia Court of Appeals

52 Ga.App. 1

182 S.E. 61

SOUTH GEORGIA GROCERY CO.

v.BANKS.

No. 24960.

Court of Appeals of Georgia, Division No. 1.

Oct. 18, 1935.

Syllabus by the Court.

In a suit for damages for an alleged malicious prosecution, this action not being favored by the law, the evidence will be closely scrutinized, and if it appears from that testimony which is uncontradicted, and which is neither incredible, impossible, or inherently improbable, that there were sufficient facts before the prosecutor in carrying on the prosecution, which would warrant a conclusion by him, as a reasonable man, that plaintiff.was guilty of the offense charged, a verdict for plaintiff will not be allowed to stand.

(a) "Malicious prosecution" is the carrying on of a criminal proceeding which must proceed to at least an arrest and a hearing before a committing court, and where two witnesses, whom the testimony does not show were obviously unworthy of belief and whose statements did not appear upon their face to be false, detailed to the prosecutor, after the warrant was taken for plaintiff but before he was arrested and required to give bond, facts which, if true, clearly showed plaintiff guilty of the charge made against him, it is held, such facts alone were sufficient to show probable cause for the prosecution.

(b) The verdict for plaintiff is contrary to the evidence and therefore contrary to law, and the judgment overruling the motion for new trial is reversed.

Error from Superior Court, Worth County; R. Eve, Judge.

Suit by J. T. Banks against the South Georgia Grocery Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Harrell & Lilly, of Quitman, J. H. Tipton, of Sylvester, and Wilcox, Connell & Wilcox, of Valdosta, for plaintiff in error.

P. B. Ford and Foy & Williamson, all of Sylvester, for defendant in error.

GUERRY, Judge.

This is a suit for damages for a malicious prosecution by plaintiff in error (hereinafter referred to as defendant) of defendant in error (hereinafter referred to as plaintiff). The alleged prosecution consisted of accusations charging defendant with the offense of "selling whisky, " and "having whisky." The jury found a verdict for the plaintiff, and defendant filed a motion for new trial, which was overruled, and the exception is to that ruling.

A consideration of the general grounds of the motion, that the verdict is contrary to the evidence and therefore contrary to law, will dispose of the writ of error.

The facts are substantially as follows: Plaintiff, J. T. Banks, Jr., was employed by the defendant corporation as manager of one of its chain grocery stores in Sylvester, Ga. S. J. Faircloth, vice president and general manager of the defendant corporation, upon information that whisky was being handled at their store managed by the plaintiff, which information was furnished by a manager of another store of defendant corporation (who reported, and testified upon the trial, that two men, neither of whom he had seen before or since, and whose names he did not inquire, told him of whisky being sold at their store in Sylvester), assigned one Bridges to investigate the truth of the statements. Bridges testified that he went to Sylvester and heard rumors that Mr. Ballard, a farmer, had complained that his negroes had been obtaining whisky at the store, and that he and plaintiff made a trip out to Mr. Ballard's farm that afternoon in order that he might investigate these statements, although the purpose of his mission was not known to plaintiff. The fact of this trip was admitted by plaintiff and corroborated by Ballard. Upon arrival at the farm Ballard accompanied Bridges to talk to the negroes on the place, and at least one negro admitted that he had purchased liquor at the store from Purvis Daniels, the delivery boy. This was corroborated by the testimony of Ballard. On the return trip to town, it appears that Bridges inquired of plaintiff if he knew where he could obtain whisky, and plaintiff replied that he did not know, that he did not fool with the stuff, but that he thought he might be able to obtain some for him. Bridges testified that when they returned to the store plaintiff called Daniels, the delivery boy; that Daniels disappeared for a few minutes and then delivered him a pint of whisky, and he paid plaintiff 50 cents for it. Plaintiff's testimony admits part of this transaction, but denies that he called Daniels, and says that Bridges called him; denies that the boy was gone only a few minutes, but says that he was gone some time, denies that Bridges paid him any money, but says that the money was given to Daniels. After this occurrence, and that night, Bridges returned to Quitman, the home office of the defendant company, and related to Mr. Faircloth his version of his investigation. It seems that there existed, admittedly, a strong friendship of some years' standing between Faircloth and plaintiff's father, and Faircloth, on this account, requested Bridges to make further investigation before any action was taken in the matter. Thereupon Bridges returned to Sylvester the next day and, according to his testimony, made a similar request of plaintiff for obtaining whisky, and that plaintiff againsent Daniels out, and that this time he was gone only about one minute. He then returned with another pint of whisky and handed it to plaintiff, who in turn handed it to him. However, the circumstances of this transaction are also denied by plaintiff, except he admits that Bridges did come in and get Daniels to go out for some more whisky for him, and he further states that he asked Bridges to leave the store and meet Daniels somewhere else as he did not wish whisky to be delivered around the store; that Bridges declined to do so; and that he did not handle the whisky or receive any of the money. Bridges then returned to Quitman and reported the transaction to Faircloth and was then requested by Faircloth to place the entire matter before Sheriff Sumner. Some two weeks later, Bridges returned to Sylvester and related the two transactions to Sheriff Sumner, and Sumner told him, Bridges (which is corroborated by the testimony of Sumner), "at that time, and before the warrants were sworn out * * * about having information that whisky was being handled at that store. He said the chief of police had talked to him and told him it was bad there, and he knew that whisky was being sold around there." Sumner told Bridges, however, before the warrants were taken, that he himself did not have sufficient facts upon which to base a prosecution and would have to rely solely on his evidence. Two warrants were then taken, upon affidavits of Bridges, one for plaintiff and one for Purvis Daniels, the delivery boy. Purvis Daniels was arrested first and brought to the jail, and upon being questioned by Bridges and Sumner admitted to them the sales of liquor to Bridges, " and further stated that he was handling same for plaintiff. In his statement, Daniels implicated another colored boy, Oscar Crapps, in the transaction, who, he stated, was the supply house and kept it on his person so that when any was wanted he could contact him. A warrant was then taken for Crapps, and he was brought to jail and questioned, and he corroborated the statement of Daniels. He further stated that plaintiff and a Mr. Black, the man who operated the meat market in defendant's store, furnished him the whisky and he bottled it up and supplied it when needed. Later, the same day, and after all of the above facts had transpired and the above information had been communicated to Bridges and Sumner, plaintiff was arrest ed and required to give bond. He was later tried and acquitted of the charges. Neither of these negroes testified in the trial of this case, nor does it appear that they testified against plaintiff in the criminal prosecution. Plaintiff's evidence went mainly to a denial of any connection with whisky or the transactions testified about by Bridges; proof of certain claims of shortage against him by the defendant corporation and statement of Bridges that if the shortages were straightened out nothing would become of the liquor charges; and proof of contradictory statements by Bridges.

"A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." Civil Code 1910, § 4439, Code 1933, § 105-801. In such an action, there can be no recovery without a concurrence of want of probable cause with malice. Coleman v. Allen, 79 Ga. 637, 5 S. E. 204, 11 Am. St. Rep. 449. "The mere fact that a person has been charged with a criminal offense, and has, upon trial therefor, been acquitted, does not give him a right of action against the prosecutor. He must go further, and prove that the prosecution was instituted with malice, and without probable cause." Stuckey v. Savannah, Florida & Western Ry. Co., 102 Ga. 782, 29 S. E. 920, 921. As was said in Coleman v. Allen, 79 Ga. 637, 5 S. E. 204, 206, 11 Am. St. Rep. 449: "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." See, further, in this connection, Hearn v. Batchelor, 47 Ga. App. 213, 170 S. E. 203, and cases therein cited. The reason for the requirement that a want of probable cause should concur with malice to sustain the action is well stated in Porter v. Johnson, 96 Ga. 145, 23 S. E. 123, 124, as follows: "So far...