Voliton v. Piggly Wiggly

Decision Date12 March 1982
Docket NumberNo. 63482,63482
Citation161 Ga.App. 813,288 S.E.2d 924
PartiesVOLITON v. PIGGLY WIGGLY.
CourtGeorgia Court of Appeals

Lansing B. Lee, III, Jay M. Sawilowsky, Augusta, for appellant.

Gould B. Hagler, Duncan D. Wheale, Augusta, for appellee.

BANKE, Judge.

This is an appeal by the plaintiff from a grant of summary judgment to the defendant in a malicious prosecution action. The plaintiff was arrested for issuing a bad check.

The following material facts are undisputed. The plaintiff had for several years maintained an individual checking account with the Georgia Railroad Bank & Trust Company. On June 2, 1980, she opened a new account there jointly with her husband, and on June 23, 1980, the individual account was closed. On August 2, 1980, through inadvertance, she signed a blank check on the closed account, intending to draw on the new account, and gave it to her granddaughter for use in purchasing groceries at the defendant's grocery store. The defendant accepted the check, as filled in by the granddaughter, and the bank returned it soon thereafter marked "ACCOUNT CLOSED." On August 20, 1980, the defendant took out a warrant for the plaintiff's arrest on the charge of issuing a bad check, making no prior attempt to contact her about the matter or to otherwise verify the existence of criminal intent on her part. The day after her arrest, the plaintiff went to the store and attempted to pay the indebtedness but was told by an agent of the defendant that the matter would have to be handled through the court. The criminal case was later called for trial; and after a jury had been impaneled and sworn, the charge was dismissed on motion of the prosecution.

It is not disputed, for purposes of this appeal, that the plaintiff acted out of mistake and inadvertance in signing the check on the closed account and that she was consequently innocent of the criminal charge. The trial court ruled, however, that under Code Ann. § 26-1704(a)(1), the return of the check marked "ACCOUNT CLOSED" conclusively established probable cause to believe that she had committed a crime and that the defendant was thus insulated from liability. The plaintiff contends that the existence of probable cause is a jury issue and that even if probable cause for her arrest existed at the time the warrant was issued, the defendant may nevertheless be held liable for failing to take any action to have the prosecution discontinued upon learning the true facts. Held :

"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." Code § 105-801. "Probable cause is that apparent state of facts existing after reasonable and proper inquiry; the prosecutor is under a duty of caution and avoidance of haste." Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 207, 163 S.E.2d 256 (1968). "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." Auld v. Colonial Stores, Inc., 76 Ga.App. 329(3)(c), 45 S.E.2d 827 (1947).

We cannot accept the defendant's contention that it is immune from liability under Code Ann. § 26-1704(a)(1). That statute provides, in pertinent part, as follows: "(a) A person commits criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee. For the purposes of this section, it is prima facie evidence that the accused knew that the instrument would not be honored, if: (1) The accused had no account with the drawee at the time the instrument was made, drawn, uttered, or delivered ..." (Emphasis supplied.) This language is clearly inapplicable to the circumstances of this case because it is undisputed that the plaintiff in fact had a checking account with the drawee bank at the time the check was made and delivered, although it was not the account the check was drawn on. It is a fundamental rule, of course, that criminal statutes shall be construed strictly in favor of the accused. See, e.g., Carsello v. State, 220 Ga. 90, 94, 137 S.E.2d 305 (1964); Gee v. State, 225 Ga. 669, 676, 171 S.E.2d 291 (1969); Knight v. State, 243 Ga. 770, 775, 257 S.E.2d 182 (1979). The case cited by the defendant, Sykes v. South Side Atlanta Bank, 53 Ga.App. 450, 186 S.E. 464 (1936), involved a differently worded statute and does not demand a contrary result. Furthermore, even if subsection (1) accurately described the facts of this case, there is nothing in the statute to indicate that the defendant would...

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10 cases
  • Wilson v. Bonner
    • United States
    • Georgia Court of Appeals
    • March 9, 1983
    ...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, 288 S.E.2d 924 (1982). " 'While (probable cause) need not approach absolute certainty as to the facts, and it is not inconsistent with a consi......
  • Garmon v. Warehouse Groceries Food Center, Inc.
    • United States
    • Georgia Court of Appeals
    • January 13, 1993
    ...Zayre v. Meeks, 194 Ga.App. 267, 390 S.E.2d 398; Wilson v. Wheeler's Inc., 190 Ga.App. 250, 378 S.E.2d 498; and Voliton v. Piggly Wiggly, 161 Ga.App. 813, 288 S.E.2d 924, which describe circumstances under which a reasonable person would be required to investigate further before initiating ......
  • Rowe v. CSX Transp., Inc.
    • United States
    • Georgia Court of Appeals
    • November 16, 1995
    ...caution and avoidance of haste.' Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 207 (163 SE2d 256) (1968)." Voliton v. Piggly Wiggly, 161 Ga.App. 813, 288 S.E.2d 924. " ' "While a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and i......
  • Munford, Inc. v. Anglin
    • United States
    • Georgia Court of Appeals
    • March 7, 1985
    ... ... 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, ... ...
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6 books & journal articles
  • 17 Bad Check Prosecutions
    • United States
    • State Bar of Georgia Georgia Benchbook 2017 edition
    • Invalid date
    ...account was closed at the time the check was written nor does it show that the defendant had no other account with the bank rVoliton, 161 Ga.App. 813, 288 SE2d 924 (1982)]. Nor does a notation "UNABLE TO LOCATE" since again this does not establish that defendant has no account [Wilson, 190 ......
  • 17 Bad Check Prosecutions
    • United States
    • State Bar of Georgia Georgia Benchbook 2016 edition
    • Invalid date
    ...account was closed at the time the check was written nor does it show that the defendant had no other account with the bank rVoliton, 161 Ga.App. 813, 288 SE2d 924 (1982)]. Nor does a notation "UNABLE TO LOCATE" since again this does not establish that defendant has no account [Wilson, 190 ......
  • 17 Bad Check Prosecutions
    • United States
    • State Bar of Georgia Georgia Benchbook 2015 edition
    • Invalid date
    ...account was closed at the time the check was written nor does it show that the defendant had no other account with the bank rVoliton, 161 Ga.App. 813, 288 SE2d 924 (1982)]. Nor does a notation "UNABLE TO LOCATE" since again this does not establish that defendant has no account [Wilson, 190 ......
  • 17 Deposit Account Fraud Prosecutions
    • United States
    • State Bar of Georgia Georgia Benchbook 2022 edition
    • Invalid date
    ...account was closed at the time the check was written nor does it show that the defendant had no other account with the bank, Voliton, 161 Ga.App. 813, 288 SE2d 924 (1982)]. Nor does a notation "UNABLE TO LOCATE" establish the prima facie case since again this does not establish that defenda......
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