Wilson v. Bonner, 64880

• Decision Date: 09 March 1983
• Docket Number: No. 64880,64880
• Citation: 166 Ga.App. 9,303 S.E.2d 134
• Parties: WILSON v. BONNER et al.
• Court: Georgia Court of Appeals

Page 134

303 S.E.2d 134

166 Ga.App. 9

WILSON v. BONNER et al.

No. 64880.

Court of Appeals of Georgia.

March 9, 1983.

Rehearings Denied March 18 and March 25, 1983.

Certiorari Denied May 12, 1983.

Richard C. Freeman III, Gary G. Agnew, Atlanta, for appellant.

Samuel P. Pierce, Jr., Christopher D. Olmstead, Atlanta, A. Ed Lane, Decatur, for appellees.

CARLEY, Judge.

In a multi-count complaint, plaintiff-appellant brought suit against the following defendant-appellees: Bonner, the Sheriff of DeKalb County; S.S. Kresge Company, d/b/a K-Mart (K-Mart); and Lionel Leisure, Inc., d/b/a Lionel Leisure City (Lionel). Appellant's complaint purported to set forth the following claims for relief: Malicious prosecution; false arrest; false imprisonment; assault; trespass; kidnapping; invasion of the right of privacy; and violation of the Georgia and Federal Constitutions.

The case proceeded to trial before a jury and, at the close of all the evidence, the trial court directed a verdict in favor of appellees as to all of appellant's claims except those for false imprisonment and invasion of privacy. The jury returned a verdict for all three appellees as to those two remaining claims. Appellant appeals.

1. Appellant asserts error in the direction of a verdict in favor of appellees K-Mart and Lionel on the malicious prosecution claim. The essential elements of a claim for malicious prosecution are "(1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. [Cits.]" Ellis v. Knowles, 90 Ga.App. 40, 42(1), 81 S.E.2d 884 (1954).

The relevant facts are as follows: In payment of merchandise, both appellee-K-Mart and appellee-Lionel accepted a check written on the account of and signed by an individual bearing the name Joyce Wilson. The checks were not honored by the bank because no such account existed at the time they were presented for payment. Appellees then obtained warrants for the arrest of Joyce Wilson on a charge of passing bad checks. The warrants which issued for the arrest of Joyce Wilson listed as her residence the address which appeared on the face of the dishonored checks. Appellee-Bonner, acting on the warrants, effectuated the arrest of appellant on July 29, 1975. At that time, appellant was not a resident of nor was she arrested at the address listed on the warrants. Appellant was released from jail on July 31, 1975. Thereafter, appellees K-Mart and Lionel received certain information which, for the first time as to them, raised the question of whether appellant was in fact the Joyce Wilson who had passed the bad checks. However, notwithstanding this information supplied to appellees which indicated that appellant was not the correct Joyce Wilson they wished to prosecute, the solicitor's office prepared--during the second week of August, 1975--accusations which clearly charged appellant, Joyce Ann Wilson, with passing bad checks to appellees. The accusations against appellant were subsequently nol prossed in September of 1975 on the basis of appellant's mistaken identification as the Joyce Wilson who had passed the bad checks to appellees.

On this evidence, it is clear that the original warrants obtained by appellee-K-Mart and appellee-Lionel for the arrest of Joyce Wilson cannot serve as the basis for appellant's malicious prosecution action. "This is an action for malicious prosecution. It involves mistaken identity. The evidence is uncontradicted that there never was a warrant issued for the arrest of the plaintiff in this case. The fact that the defendants, with probable cause, obtained a warrant meant for another person having the identical name of plaintiff cannot be expanded to infer that the defendant[s] intended maliciously for just any person of that name or this plaintiff to be prosecuted for the offense." Massey Stores v. Reeves, 111 Ga.App. 227, 228, 141 S.E.2d 227 (1965). "Since the uncontradicted evidence shows that there never was a warrant sworn out charging this [appellant], the plaintiff in this case, with [passing bad checks], it follows that as to [her] there was no warrant. 'Where the warrant is void, malicious prosecution will not lie.' [Cit.] A fortiori, a suit for malicious prosecution will not lie against a prosecutor where there was in fact no warrant at all issued on the prosecutor's accusation for the arrest of the person of the plaintiff bringing the action." Massey Stores v. Reeves, supra at 230, 141 S.E.2d 227. "An arrest based upon a warrant which is void furnishes no basis for action for malicious prosecution. [Cits.]" J.C. Penney Co. v. Green, 108 Ga.App. 155, 157, 132 S.E.2d 83 (1963). Compare Auld v. Colonial Stores, 76 Ga.App. 329, 45 S.E.2d 827 (1947); Bi-Lo, Inc. v. Stanciel, 148 Ga.App. 614, 251 S.E.2d 834 (1979). "If the plaintiff was arrested and prosecuted under a valid warrant, the action is malicious prosecution; if wrongfully under a void warrant ... the action is false imprisonment." (Emphasis supplied.) Smith v. Embry, 103 Ga.App. 375, 377, 119 S.E.2d 45 (1961).

However, under the circumstances of the instant case, that the original arrest warrants were void as to appellant would not be dispositive of the malicious prosecution claim. It is clear that the prosecution of Joyce Wilson initially instituted by the warrants proceeded to a subsequent prosecution of appellant, Joyce Ann Wilson, under valid accusations. "A malicious prosecution may be as extensive, in the beginning, as in the rise of the initial facts and circumstances giving birth to the malicious spirit or motive to prosecute, and in the conclusion, as in the last efforts to convict under the final process under which the defendant is then being tried, and may include all mesne or intermediate acts or things or processes which may support or evidence such motive. Within the rule may be warrants, accusations, or indictments, or reissues of either where dismissed or nolprossed." Price v. Cobb, 63 Ga.App. 694, 700-701, 11 S.E.2d 822 (1940). Accordingly, appellant argues that her malicious prosecution claim is not controlled by the legal principles relating to prosecutions under void warrants but, rather, comes within the following rule: "[E]ven if on instigating the prosecution the prosecutor had probable cause at the commencement, if he afterwards acquired knowledge, or the reasonable means of knowledge, that the charge was not well founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury." Auld v. Colonial Stores, supra, 76 Ga.App. at 330(2e), 132 S.E.2d 83. In this connection, appellant relies upon the evidence which shows that after her arrest on the void warrants, appellees received information that she was probably not the Joyce Wilson who had passed the bad checks but that, even with this information, appellees did not drop the charges. Appellant contends that this failure or refusal on the part of appellees to drop the charges immediately or at least within a reasonable time resulted in the solicitor's office eventually drawing up against her in her own full name, Joyce Ann Wilson, the accusations which were only subsequently nol prossed based upon mistaken identity. Appellant contends that this evidence shows that appellees allowed the original prosecution initiated by the void arrest warrants to be "continued" against her under valid accusations and that this prosecution under the accusations was "instituted" by appellees without probable cause because at the time they were drawn, appellees had acquired knowledge that appellant was not the Joyce Wilson sought.

Our review of the evidence shows that it would authorize a finding that, after the arrest, appellees did in fact receive information, in the form of oral communications and photographic comparisons, that appellant was most probably not the Joyce Wilson who had passed the bad checks. While there is some evidence that, after this became known to appellees, they acquiesced in the solicitor's office handling the issue of whether to prosecute appellant or drop the charges because of mistaken identification (see Spratlin v. Manufacturers Acceptance Corp., 105 Ga.App. 463, 125 S.E.2d 110 (1962)), there is also evidence that appellees were, during this period, more interested in ending the prosecution by having appellant pay the checks, despite the information clearly indicating that she was probably not the drawer thereof, than in prosecuting the correct Joyce Wilson. See Auld v. Colonial Stores, supra, 76 Ga.App. at 330, 45 S.E.2d 827. " '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.' [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 considerable element of doubt, it must be more than mere conjecture or unfounded suspicion. Beyond this, the belief must be supported by appearances known to the defendant at the time, and a prosecution instituted without probable cause cannot be justified by anything, short of guilt in fact, which comes to the knowledge of the defendant later ... The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable...