Vasser v. Berry

• Decision Date: 28 February 1952
• Docket Number: Nos. 33865,No. 1,33889,s. 33865,1
• Citation: 69 S.E.2d 701,85 Ga.App. 435
• Parties: VASSER v. BERRY et al. BERRY et al. v. VASSER
• Court: Georgia Court of Appeals

Page 701

69 S.E.2d 701

85 Ga.App. 435

VASSER v. BERRY et al.

BERRY et al. v. VASSER.

Nos. 33865, 33889.

Court of Appeals of Georgia, Division No. 1.

Feb. 28, 1952.

Syllabus by the Court.

1. Since the evidence showed a lack of probable cause, the court erred in directing a verdict for the defendants.

2. The allegations of the defendants' answer which were stricken on demurrer did not constitute a valid defense to the action, and the court did not err in sustaining the demurrers to and in striking the allegations.

Mrs. Martha E. Vasser, by next friend, sued Maebelle H. Berry, Russell B. Berry Jr., and Mrs. Russell V. Berry Jr., doing business as Berry Floral Company, for damages for malicious prosecution. The plaintiff, on February 20, 1951, had $34 on deposit to her account in the First National Bank of Rome. On that date the plaintiff gave to the defendants a $15 check drawn on the First National Bank of Rome as payment on the account of her mother and father. After the plaintiff had left the defendants' place of business, the defendants called the bank to see if the plaintiff had an account sufficient to cover the check and were told by the bank that it had no account in the name of the plaintiff. The defendants then put the check through to the bank, and the check was returned unpaid and marked 'No checking account in this name.' The defendants then swore out a criminal warrant for the arrest of the plaintiff based on the grounds that she did 'commit the offense of giving worthless check in the amount of $15.00.' The plaintiff was arrested under the warrant and gave bond. At a hearing the charges were dismissed when it was learned that the bank had made an error and that in fact the check was good. Demurrers were sustained to certain paragraphs of the defendants' answer, to which they excepted pendente lite. The court directed a verdict for the defendants and the plaintiff moved for a new trial on special grounds. The court overruled the motion for a new trial and the plaintiff excepts. The defendants in a cross-bill, assign error on their exceptions pendente lite.

E. J. Clower, Rome, for plaintiff in error.

Parker, Clary & Kent, Rome, for defendants in error.

FELTON, Judge.

1. The giving of a check to pay an antecedent or pre-existing debt, without funds in the bank, and without obtaining anything of benefit thereby, does not constitute a crime under Code, § 13-9933. Douglas v. State, 80 Ga.App. 761, 57 S.E.2d 438, and cases cited. The evidence in the instant case positively shows that the check was given as payment on a pre-existing debt, that nothing of value passed at the time, and that the defendants had knowledge of this fact; therefore, even if the check had been worthless, the plaintiff committed no crime. 'While a mistaken belief in regard to the facts may furnish probable cause for initiating criminal proceedings, a mistaken belief as to the legal consequences of a person's conduct does not furnish probable cause unless based upon the advice of counsel as stated in § 666. Hence if, through ignorance of the law, an accuser erroneously believes that the actual or supposed acts or omissions of the accused are such as to constitute the offense charged against him, his mistaken belief in the guilt of the accused, no matter how reasonable in a layman, does not give him probable cause for initiating the proceedings cunless it was due to the advice of counsel as above stated. A layman does not act reasonably in relying, in so serious a matter as the initiation of criminal...