Woodruff v. Doss

• Decision Date: 28 July 1917
• Docket Number: 8123.
• Citation: 93 S.E. 316,20 Ga.App. 639
• Parties: WOODRUFF v. DOSS.
• Court: Georgia Court of Appeals

93 S.E. 316

20 Ga.App. 639

WOODRUFF v. DOSS.

No. 8123.

Court of Appeals of Georgia, First Division

July 28, 1917

Syllabus by the Court.

While in an action to recover damages on account of an alleged malicious prosecution, "want of probable cause shall be a question for the jury" (Civ. Code 1910, § 4440), yet where the material facts are not in dispute, the existence or nonexistence of a probable cause for the prosecution becomes a question of law for determination by the court.

While the good faith of the person against whom the criminal prosecution was instituted may be reasonably inferred from facts and circumstances in proof, probable cause for the prosecution instituted by the defendant in the present action clearly existed, according to the undisputed facts in the case, and therefore the verdict in favor of the plaintiff was contrary to law.

Error from Superior Court, Floyd County; M. Wright, Judge.

Action by F. C. Doss against W. W. Woodruff. There was a judgment for plaintiff, and defendant brings error. Reversed.

Dean & Dean and L. H. Covington, all of Rome, for plaintiff in error.

Eubanks & Mebane and Barry Wright, all of Rome, for defendant in error.

WADE C.J.

This was an action to recover damages for an alleged malicious prosecution instituted by Woodruff against Doss, the plaintiff in the lower court. In the petition the plaintiff alleged that on May 16, 1914, Woodruff swore out a criminal warrant against him in the United States court, charging him with perjury and false swearing; that he was arrested under the warrant and detained by a deputy marshal of the United States, and finally carried before a United States commissioner, who admitted him to bond and set the case for trial on May 17, 1914, but afterwards, upon the motion of Woodruff, continued the hearing on the warrant until May 23 1914; that Woodruff went before the United States grand jury which was in session on the 17th, 18th, and 19th of May 1914, and endeavored to procure an indictment against him for the offense set forth in the warrant, but the grand jury failed and refused to indict him, and made a return of "No bill"; that on May 23, 1914, at the time set for a hearing before the commissioner, Woodruff, notwithstanding he made oath to the warrant and was subp naed as a witness in the case, failed and refused to appear and abandoned the prosecution, and thereupon the case was dismissed and came to an end, and the petitioner was discharged. The petition further alleged that Woodruff instituted the said criminal proceeding for the deliberate purpose of injuring and damaging the petitioner, and in an effort to induce him to abandon a civil proceeding against a certain corporation known as the Interstate Chemical Company, and that the warrant was sworn out and the prosecution carried on maliciously, without probable cause; that because of the swearing out of the warrant, and because of the currency of the report that it had been sworn out by Woodruff, and because of articles in a newspaper informing the public that the petitioner had been arrested and charged with perjury and false swearing, he suffered great mortification and mental agony; that the charge preferred against him by Woodruff was calculated to and did bring him into disrepute with his neighbors and friends, and the conduct of Woodruff in instituting and carrying on the prosecution tended to injure and did injure his name and fame, to his damage, etc.; and that the intention and purpose of Woodruff in swearing out the warrant was to injure, damage, and humiliate him. To the petition were attached various exhibits showing the proceedings before the United States commissioner and before the United States grand jury. Likewise a copy of the warrant sworn out by Woodruff was attached, which was as follows:

"United States of America, Northern District of Georgia. Office of the United States Commissioner at Rome, Georgia. Before me, John C. Printup, a commissioner duly appointed by the District Court of the United States of America for the Northern District of Georgia to administer oaths, to take acknowledgments of bail, and also to take depositions of witnesses in civil causes pending in the courts of the United States, pursuant to the provisions of the act of Congress in that behalf, personally came W. W. Woodruff, who, being duly sworn, deposes and says that F. C. Doss did on May 14, 1914, make an affidavit to a petition in bankruptcy against the Interstate Chemical Company, which petition was filed in the District Court of the United States for the Northern District of Georgia, Northwestern Division, which affidavit is in the following words and figures, to wit: 'State of Georgia, County of Floyd. F. C. Doss and ______, petitioning creditors mentioned and described in the foregoing petition, do hereby severally make solemn oath that the statements of fact contained in the foregoing petition are true, according to the best of my knowledge, information, and belief. [ Signed] F. C. Doss. Subscribed and sworn to before me this 14th day of May, 1914, as to F. C. Doss. [ Signed] Graham Wright, N. P. Floyd Co., Ga.' Affiant says that, on information, he verily believes said oath is false, in that said Chemical Company did not at the time of making said affidavit to said petition owe said Doss the sum of $3,630.87 as commissions due him as agent for said company for it, as in said petition alleged. Affiant makes this affidavit at the instance and request of the Interstate Chemical Company, for the arrest, commitment, and detention of said F. C. Doss, to await action of the grand jury in said District Court; that affiant is president of said Chemical Company and acting in its behalf in this regard. [ Signed] W. W. Woodruff. Sworn to and subscribed before me, this 16th day of May, 1914. J. C. Printup, U.S. Com'r."

The defendant demurred generally to the petition, upon the ground that no cause of action was set out, and also specially demurred to the allegations therein touching the appearance of Woodruff...