Tanner-brice Co v. Barrs

• Court: Georgia Court of Appeals
• Writing for the Court: BROYLES, Chief
• Citation: Tanner-brice Co v. Barrs, 190 S.E. 676, 55 Ga.App. 453 (Ga. App. 1937)
• Decision Date: 11 March 1937
• Docket Number: No. 25935.,25935.
• Parties: TANNER-BRICE CO. et al. v. BARRS.

55 Ga.App. 453

190 S.E. 676

TANNER-BRICE CO. et al.

v.BARRS.

No. 25935.

Court of Appeals of Georgia, Division No. 1.

March 11, 1937

.

Syllabus by Editorial Staff.

G77

Error from Superior Court, Coffee County; M. D. Dickerson, Judge.

Action by Bill Barrs against Tanner-Brice Company and others. To review an adverse judgment, defendants bring error.

Reversed.

G. W. Lankford, of Lyons, and Heath & Heath, of Douglas, for plaintiffs in error.

John S. Gibson and McDonald & Baker, all of Douglas, for defendant in error.

Syllabus Opinion by the Court.

BROYLES, Chief Judge.

1. The court did not err in allowing, the amendments to the petition, or in overruling the demurrers to the petition as amended.

2. "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 denned 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. 14 Am. & Eng. Enc.Law, p. 24, and authorities cited." (Italics ours.) Hartshorn v. Smith, 104 Ga. 235, 239, 30 S.E. 666, 667; Sirmans v. Peterson, 42 Ga.App. 707, 709, 157 S.E. 341; Hearn v. Batchelor, 47 Ga.App. 213, 170 S.E. 203.

3. "A right of action for a malicious prosecution exists only when the prosecution is the result of a desire to injure the accused. In such an action malice against the accused may be inferred from want of probable cause, but the want of probable cause will not be inferred, even though malice is shown to have existed." (Italics ours.) Hicks v. Brantley, 102 Ga. 264 (1), 29 S.E. 459; Ventress v. Rosser, 73 Ga. 534, 535; Marable v. Mayer, 78 Ga. 710, 3 S.E. 429.

4. "While the code provides that in an action to recover damages on account of an alleged malicious prosecution, 'want of probable cause shall be a question for the jury, under the direction of the court' (Civil Code of 1910, § 4440 [Code 1933, § 105-802]), yet where the material facts are not in dispute, the existence or non-existence of probable cause for the prosecution is a question of law for determination by the court. In this case, while the good faith of the person against whom the defendant instituted the prosecution alleged to be malicious may be reasonably inferred from facts and circumstances in proof, it is clear, according to the undisputed facts in the case, that there was probable cause for the prosecution; and therefore the verdict in favor of the plaintiff was contrary to law." Woodruff v. Doss, 20 Ga.App. 639 (1, 2), 93 S.E. 316. The ruling in Woodruff v. Doss, supra, was cited and approved in Sirmans v. Peterson, 42 Ga.App. 707, 709, 157 S.E. 341, where this court held that the evidence did not reasonably exclude the existence of probable cause for the prosecution, and that the verdict for the plaintiff was unsupported by the evidence, and the refusal to grant a new trial was error.

5. "Want of probable cause is the gravamen of an action for malicious prosecution, and there-can be no recovery by the plaintiff when there was any probable cause for the prosecution, even though it mayappear that the prosecutor was actuated by improper motives. Seamans v. Hoge, 105 Ga. 159, 31 S.E. 156." Darnell v. Shirley, 31 Ga.App. 764 (4), 122 S.E. 252. In the Darnell Case, supra, the judgment in favor of the plaintiff was reversed on the ground that the "evidence demands a finding that there was probable cause for the prosecution, notwithstanding that evidence subsequently discovered might completely exonerate the accused."

6. "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, nor 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. * * * [In such an action] the functions of the court and jury are clear and distinct. What facts and circumstances amount to probable cause is a pure question of law." South Georgia Grocery Co. v. Banks, 52 Ga.App. 1, 7, ...