West v. Baumgartner

• Court: Georgia Supreme Court
• Writing for the Court: GRICE; All the Justices concur, except ALMAND, C.J., and UNDERCOFLER; GUNTER
• Citation: West v. Baumgartner, 187 S.E.2d 665, 228 Ga. 671 (Ga. 1972)
• Decision Date: 24 January 1972
• Docket Number: No. 26800,26800
• Parties: Eleanor T. WEST et al. v. Edward H. BAUMGARTNER et al.

Page 665

187 S.E.2d 665

228 Ga. 671

Eleanor T. WEST et al. v. Edward H. BAUMGARTNER et al.

No. 26800.

Supreme Court of Georgia.

Jan. 24, 1972.

Rehearing Denied Feb. 15, 1972.

syllabus by the Court

1. The motion to dismiss the certiorari proceedings was properly denied.

2. The evidence failed to show that the defendants had no probable cause for prosecuting the plaintiffs for illegal fishing. Therefore, the defendants' motion for summary judgment should have been granted.

Oliver, Maner & Gray, Thomas S. Gray, Jr., Savannah, Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for appellants.

Alton D. Kitchings, Savannah, for appellees.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., James B. Talley, Robert S. Bomar, Asst. Attys. Gen., Atlanta, amicus curiae.

GRICE, Justice.

This review involves the denial of a motion for summary judgment made by the defendants in a suit seeking damages for malicious prosecution.

Separate suits were filed by Edward H. Baumgartner, Rudolph H. Padgett and James E. Padgett in the Superior Court of Chatham County, Georgia, against the following: Eleanor T. West; the Citizens & Southern National Bank of Georgia, as co-trustee and William F. Torrey, Jr., as co-trustee, under a trust set up under the last will and testament of Nelle Ford Torrey; William F. Torrey, Jr., individually and as beneficiary; Annette Torrey Frazer, individually and as beneficiary; Emory T. Torrey, individually and as beneficiary; Randall F. Torrey, a minor, individually and as beneficiary; Julian C. Sipple, as attorney; and Ossabaw, Inc. By amendment Ossabaw Island Project Foundation was made a party defendant.

Count 1 of each complaint related to false imprisonment.

Count 2 of each complaint alleged that the plaintiffs were maliciously prosecuted by the defendants in the City Court of Savannah because of illegal fishing in violation of Code Ann. § 45-701 (Ga.L.1955, pp. 483, 523), which in material part is as follows: 'Any person who shall fish in the waters or from upon the lands of another with or without a license, without first having obtained permission from such landowner or person in charge, shall be guilty of a misdemeanor and punished as provided by law.'

To each complaint the defendants answered by denying its material allegations. Some of the defendants denied the defendant Sipple's authority to act as their agent, except for the Ossabaw Island Project Foundation. Also, Ossabaw, Inc. maintained that it was not in existence when the foregoing event allegedly took place.

Thereafter, extensive discovery proceedings took place.

Certain defendants filed a motion for summary judgment urging that the defendant Sipple was not acting in their behalf at the time alleged in the complaint. The trial court overruled this motion. Pending appeal from that motion for summary judgment, another such motion was filed by all the defendants upon the merits of the case. In view of this motion the Court of Appeals held that the first appeal was moot. Citizens & Southern National Bank of Georgia v. Baumgartner, 123 Ga.App. 462, 181 S.E.2d 519.

The second motion for summary judgment was sustained by the trial court as to Count 1 of the complaint, relating to false imprisonment, and denied as to Count 2 of malicious prosecution.

The ruling as to Count 1 was appealed by the plaintiffs and as to Count 2 by the defendants to the Court of Appeals.

That court affirmed the trial court as to both counts in a five to four decision. West v. Baumgartner, 124 Ga.App. 318, 184 S.E.2d 213.

We denied the plaintiffs' application for certiorari on the ruling sustaining the defendants' motion for summary judgment as to Count 1 for false imprisonment.

However, we granted certiorari upon the defendants' application in regard to the denial of their motion as to Count 2 for malicious prosecution.

From the pleadings, discovery proceedings, affidavits and other portions of the record, it appears that the essential facts are not in conflict.

The parties have agreed to be bound by the record in the Court of Appeals in the case of the plaintiff-appellee Edward H. Baumgartner against the above named defendants.

The prosecution complained of here resulted from the plaintiff fishing from a boat in a creek or slough on the eastern side of Ossabaw Island in Chatham County on November 12, 1967. The plaintiff was tried by a jury in the City Court of Savannah on March 25, 1968, and was acquitted.

Ossabaw Island is a privately owned island and neither the plaintiff nor his companions had sought nor obtained permission from the island's owner or the persons in charge to fish there.

While the plaintiff and his companions were fishing in this slough they were observed by the defendant Julian C. Sipple. He ordered them to bring the boat to shore and to give him their names and addresses. He told them they were violating the law and demanded that they leave. They did so.

Subsequently Sipple wrote a letter asking them to meet and talk with him in the hope that legal action against them could be avoided.

On December 19, 1967, Sipple, at the direction of one of the owners of the island, took out a warrant against the plaintiff for violating Code § 45-701, which was sworn to by Sipple. The plaintiff was tried by a jury in the City Court of Savannah and was found not guilty.

On December 9, 1955, while Sipple was also acting as attorney for the then owners of this island, H. L. Rowland and George W. Tutan were tried and convicted in the City Court of Savannah for violating this statute by fishing without permission in this slough. Sipple assisted in these prior prosecutions.

Approximately ten days prior to the convictions of Rowland and Tutan on December 9, 1955, Sipple also represented owners of this island when the fishing party of R. L. Saxon was apprehended in this same slough. With Saxon was O. E. Baumgartner, the father of the plaintiff here. However, no prosecution of Saxon or O. E. Baumgartner took place, as evidenced by a letter from william F. Torrey, Sr., to Saxon dated December 27, 1955. Copies were sent to Sipple and O. E. Baumgartner. The letter stated that they would not be prosecuted since Saxon claimed he had permission to fish in the slough and also because the legal question as to whether the slough was open for fishing had not been resolved until Rowland and Tutan were tried and convicted as aforesaid. The letter advised that pursuant to this ruling the slough was not open to the public and it would be necessary to prosecute in the future for illegal fishing.

Predicated upon the foregoing facts, the defendants made their motion for summary judgment as to the malicious prosecution charge. This was denied by the trial court.

In affirming, the Court of Appeals made, in substance, the following holdings: (1)(a) that under the common law the public had a right of fishery in creeks and arms of the sea; (b) that Section 1 of Ga.L.1902, p. 108 (Code § 85-1307) did not grant the exclusive right of fishery in non-navigable tide waters except as to oysters, clams and other shell fish; (2) that belief by prosecutors for crimes after full knowledge of the facts, that such facts constitute crimes when they do not, does not constitute probable cause; (3) that while prior rulings in a similar prosecution that such facts sufficiently showed guilt may be shown in mitigation of damages and to disprove malice, such rulings do not show probable cause as a matter of law for such prosecution.

It also made further rulings relating to the effect of equivocal answers in discovery procedure, the non-liability of a corporation chartered after the alleged malicious prosecution and certain factors not constituting false imprisonment.

Aside from a procedural question, there is actually only one issue of law necessary to be decided by this court on this appeal: whether the evidence showed that there was no probable cause for the plaintiff's prosecution for illegal fishing.

We first treat the procedural question.

1. The motion by plaintiff-appellee to dismiss the certiorari proceedings is denied.

This motion was predicated upon Rule 37(j)(1) of the Rules of the Supreme Court, as that rule then existed.

However, on December 2, 1971, this Rule was clarified so as to provide in material part as follows:

'In all cases, (1) where the Court of Appeals has affirmed an order of the trial court denying a motion for a summary judgment, where no ruling on any issue or question of law is involved, the Supreme Court will not entertain an application for writ of certiorari.' (Emphasis supplied).

The emphasized language added by that amendment fits the situation in this appeal. All of the rulings involved here are of law.

Therefore we adhere to the grant of the application for certiorari.

2. It is obvious from the rulings of the Court of Appeals that those as to probable cause were decisive in its disposition. In reaching its conclusion that the defendants did not have probable cause for the illegal fishing prosecution of the plaintiff Baumgartner and his companions, it based its decision upon its construction of the Act of 1902 (Ga.L.1902, p. 108; Code §§ 85-1307, 85-1308 and 85-1309), and the public right of fishery in tidal waters under the common law.

In our view, however, neither a construction of this Act nor a determination of the public's rights under the common law is required. The controlling issue in the malicious prosecution action is whether the plaintiff showed that the defendants had no probable cause at that time for prosecuting him for illegal fishing in the slough in question. In this regard, we should be mindful of several principles that govern here.

Our Code provides that 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. (Emphasis supplied).

Is...