A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.
(Orig. Code 1863, § 2924; Code 1868, § 2931; Code 1873, § 2982; Code 1882, § 2982; Civil Code 1895, § 3843; Civil Code 1910, § 4439; Code 1933, § 105-801.)
Editor's notes.- Georgia law makes a distinction between an action for malicious prosecution and one for malicious use of civil process. The former is strictly a remedy for a malicious criminal prosecution and is governed by the Code sections in this article. The latter action has its basis in the common law. The essential elements of both actions, however, are substantially similar.
Law reviews.- For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: Urban Policing and Public Policy - The Prosecutor's Role," see 51 Ga. L. Rev. 1179 (2017). For comment on Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), see 15 Ga. B. J. 81 (1952). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).
JUDICIAL DECISIONSANALYSIS
The elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983); Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986); Commercial Plastics & Supply Corp. v. Molen, 182 Ga. App. 202, 355 S.E.2d 86 (1987).
Showing of malice necessary for malicious prosecution.
- Among the essential elements of a claim for malicious prosecution are: (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. J.C. Penney Co. v. Miller, 182 Ga. App. 64, 354 S.E.2d 682 (1987); Atlantic Zayre, Inc. v. Meeks, 194 Ga. App. 267, 390 S.E.2d 398 (1990).
Defendants' reliance on the bare allegations of the payee's affidavit without taking any steps to verify the information in the affidavit created a fact issue for the jury about whether the defendants' acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the plaintiff and, thus, whether the defendants acted with the malice necessary to support a malicious prosecution action. McClelland v. Courson's 441 South Station, Inc., 248 Ga. App. 170, 546 S.E.2d 300 (2001).
Confined to pursuit of a criminal action.- The term "malicious prosecution" is confined to the pursuit of a criminal action and not one for the recovery of damages arising out of a civil tort. Atlantic Mut. Ins. Co. v. Atlantic Datcom, Inc., 139 F.3d 1344 (11th Cir. 1998).
Tort of malicious prosecution cannot be governed by rules applicable to negligence. Munford, Inc. v. Anglin, 174 Ga. App. 290, 329 S.E.2d 526 (1985).
Criminal prosecution maliciously carried on without any probable cause whereby damage ensues to person prosecuted shall give one cause of action; in such cases the recovery shall not be confined to the actual damage sustained but shall be regulated by the circumstances of each case. Simmons v. Edge, 155 Ga. App. 6, 270 S.E.2d 457 (1980).
Actions for malicious arrest and malicious prosecution are not favored by courts.
- The action is strictly guarded and the circumstances under which it may be maintained are accurately stated. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933); Price v. Cobb, 60 Ga. App. 59, 3 S.E.2d 131 (1939).
While action for malicious prosecution will be strictly guarded and the circumstances on which it is based must be accurately stated and all proper guard and protection should be thrown around those who, in obedience to the mandates of duty, may be compelled to originate and carry on a criminal prosecution, the courts should not discourage actions for malicious prosecutions by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Although malicious prosecution actions are not favored, it is public policy to encourage citizens to bring to justice those who are apparently guilty. Day Realty Assocs. v. McMillan, 247 Ga. 561, 277 S.E.2d 663 (1981).
"Malice" contemplated by law in action for malicious prosecution is the same as in an action for malicious arrest, and may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).
"Probable cause" defined.
- Probable cause may be defined as the existence of such facts and circumstances in the mind of a reasonable person, the reaction of those facts and circumstances upon the mind of such reasonable person, and the reasonable acting on the facts within the mind of the prosecutor, so as to cause a belief the person was guilty of the crime for which the prosecution was being pursued. When the facts are not in dispute and establish probable cause, the question is one for the court and not a jury. Booker v. Eddins, 183 Ga. App. 449, 359 S.E.2d 211 (1987), overruled on other grounds, Cincinnati Ins. Co. v. Premier Tractor & Trailer Repair, Inc., 192 Ga. App. 243, 384 S.E.2d 449 (1989).
Adjudication as evidence of probable cause.
- Since the adjudication entered by the juvenile court constituted a finding of guilt by the ultimate fact finder in the case, it must be considered conclusive on the issue of whether the arrest was supported by probable cause. J.C. Penney Co. v. Miller, 182 Ga. App. 64, 354 S.E.2d 682 (1987).
Gist of action for alleged malicious criminal prosecution is carrying on of such prosecution maliciously and without probable cause, and there can be no recovery unless both of these elements are proved. Coker v. Tate, 40 Ga. App. 801, 151 S.E. 535 (1930).
Fundamental basis of action for damages on account of malicious prosecution is that the defendants charged and prosecuted the plaintiff, with a penal offense against the laws of this state. Smith v. Embry, 103 Ga. App. 375, 119 S.E.2d 45 (1961), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672, S.E.2d 7 (2008).
Actions for damages are recognized for the malicious prosecution, without probable cause, of a case, either criminal or civil, when the person of the defendant has been arrested or the defendant's property seized, and when damage accrued to the defendant as a result therefrom, the first action having terminated in the defendant's favor. Guth v. Walker, 92 Ga. App. 490, 88 S.E.2d 821 (1955).
Mere fact that person has been charged with criminal offense and upon trial was acquitted would not give right of action against prosecutor. The plaintiff must go further and prove the prosecution was instituted with malice and without probable cause. Ayala v. Sherrer, 135 Ga. App. 431, 218 S.E.2d 84 (1975).
When there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, the essential ingredient of malice is not so established as to entitle the plaintiff to recover in an action for malicious prosecution or malicious arrest. Barber v. H & H Muller Enters., Inc., 197 Ga. App. 126, 397 S.E.2d 563 (1990).
In order to maintain action for malicious prosecution all of following necessary elements must be proven to the satisfaction of the jury: (1) that the offense charged was a criminal prosecution; (2) that the criminal prosecution was carried on maliciously by the defendant; (3) that the criminal prosecution was finally terminated legally in favor of the plaintiff; (4) that the criminal prosecution was carried on by the defendant without any probable cause; and (5) that as a result of the criminal prosecution by the defendant, damage ensued to the plaintiff. Cary v. Highland Bakery, Inc., 50 Ga. App. 553, 179 S.E. 197 (1935); Davis v. Gilbert, 67 Ga. App. 277, 19 S.E.2d 920 (1942); Hight v. Steely, 86 Ga. App. 137, 70 S.E.2d 886 (1952); Ellis v. Knowles, 90 Ga. App. 40, 81 S.E.2d 884 (1954); Lovinger v. Pfeffer, 107 Ga. App. 636, 131 S.E.2d 137 (1963); Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978).
Probable cause arising from denial of directed verdict of acquittal.
- Probable cause is established when a trial judge denies a motion for directed verdict of acquittal in a criminal prosecution after hearing the state's evidence. However, this can be overcome by proving the order denying the motion was procured by use of fraud or corruption. Akins v. Warren, 258 Ga. 853, 375 S.E.2d 605 (1989).
Summary judgment for the defendant was proper after the defendant showed the denial of a motion for directed verdict in the prior criminal case and the plaintiff failed to meet the plaintiff's burden to offer counter evidence and generate a genuine issue of fact whether probable cause existed. Akins v. Warren, 258 Ga. 853, 375 S.E.2d 605 (1989).
The defendant in a malicious prosecution action is entitled to judgment as a matter of law if the plaintiff is shown to have moved unsuccessfully for a directed verdict of acquittal in the underlying criminal proceeding. Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154, 404 S.E.2d 327 (1991).
One of the essential elements of an action for malicious prosecution, the lack of probable cause, cannot be established as a matter of law if in the preceding criminal action the court denied the claimant's motion for directed verdict of acquittal and that ruling stands unreversed and untainted by fraud or corruption. Wingster v. Huntley's Jiffy Stores, Inc., 200 Ga. App. 252, 407 S.E.2d 481 (1991).
Plaintiff's failure to move for a directed verdict during the trial of the underlying criminal case, along with the trial court's failure to direct a verdict of acquittal sua sponte, was not equivalent to the plaintiff moving for a directed verdict which was denied. Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154, 404 S.E.2d 327 (1991).
Strictly speaking, term "malicious prosecution" is applicable only to carrying on of criminal case, and in this sense only is it used in the Code; when damages are sought for the malicious carrying on of a civil suit, the cause of action is for the malicious use of process. However, the essential elements in a cause of action for the malicious prosecution of a criminal case and the malicious use of process in a civil suit are the same. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939).
Malicious prosecution actions do not lie except when criminal proceeding has been "carried on"; there must be a prosecution. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935).
It is not sufficient to show merely that a warrant was sworn out and then dismissed or settled; it must be averred and proven that the prosecution, put into motion by the warrant, was carried on. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935).
The trial court errs in refusing to direct a verdict in favor of the defendant as to a malicious prosecution claim since there was no evidence that the criminal charges against the plaintiff were brought before a committing court, grand jury, or other tribunal following the plaintiff's arrest. Walker v. Bishop, 169 Ga. App. 236, 312 S.E.2d 349 (1983).
Instigation of prosecution.- When the plaintiff failed to put forward evidence sufficient to establish that the defendant "instigated" the prosecution of the plaintiff, the defendant's motion for summary judgment on the issue of malicious prosecution was granted. Jackson v. KMart Corp., 851 F. Supp. 469 (M.D. Ga. 1994).
Magistrate's order requiring the plaintiff to attend the warrant application hearing was not a "summons" as that term was understood in the malicious prosecution context. Renton v. Watson, 319 Ga. App. 896, 739 S.E.2d 19 (2013).
Initiation of criminal action need not be expressly directed by party to be held liable. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).
When the defendant merely states what the defendant believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that the defendant's persuasion was the determining factor in inducing the officer's decision, or that the defendant gave information which the defendant knew to be false and so unduly influenced the authorities, the defendant may be held liable. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).
The law draws a fine line of demarcation between cases when a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases when a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution; in the latter case there is not. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).
Official immunity.
- Trial court erred in denying a police officer summary judgment as to the arrestees' malicious prosecution claim because that claim was barred by official immunity when the officer's actions against the arrestees did not show malice but were an effort to restrain the arrestees and control an uncertain situation; one of the arrestees approached the officer and began arguing with the officer while the officer was speaking to a suspect in custody, and when arrestee reached into the truck to retrieve the arrestee's purse, the officer was concerned for the officer's safety. Valades v. Uslu, 301 Ga. App. 885, 689 S.E.2d 338 (2009), cert. denied, No. S10C0803, 2010 Ga. LEXIS 519 (Ga. 2010); overruled on other grounds by Harrison v. McAfee, 2016 Ga. App. LEXIS 417 (Ga. Ct. App. 2016).
Police detective was entitled to qualified immunity in a teacher's suit against the detective for malicious prosecution after the detective investigated the teacher and arrested the teacher for child molestation following complaints from three 10-year-old students that the teacher was asking to touch the students, touching the students, and asking the students not to say anything about the actions. Marshall v. Browning, 310 Ga. App. 64, 712 S.E.2d 71 (2011).
No liability when arrest result of independent investigation.
- When the plaintiff's arrest was the result of the arresting officer's independent investigation and not affected by information provided or withheld by the defendant's agents, the defendant cannot be regarded as having instigated the proceeding, and, therefore, may not be held liable for malicious prosecution. Huff v. Household Int'l, 184 Ga. App. 296, 361 S.E.2d 273 (1987).
Failure to investigate.
- A defendant may be liable for failing to investigate before instigating a criminal prosecution when a reasonable person would have investigated, and there may be liability for false imprisonment or malicious prosecution when a party directly or indirectly initiates a criminal proceeding without waiting for a police investigation. Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983).
No cause of action for malicious prosecution exists against a person who merely relays facts to an official who then makes an independent decision to arrest or prosecute. Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984).
Conspiracy to prosecute.
- A conspiracy to prosecute, without proof of an overt act, is not actionable. Wall v. Seaboard Air-Line Ry., 18 Ga. App. 457, 89 S.E. 533 (1916).
Action for malicious prosecution is not restricted to presentment on which malicious prosecution is based and the plaintiff tried, but, at the option of the plaintiff, may include also any previous indictment or process on which a previous action for malicious prosecution was based but dismissed because such former criminal prosecution had not terminated as required by law; and this is true, notwithstanding the present presentment was a reindictment of the petitioner on the charge contained in the former indictment nol prossed under the sanction of the court. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
If warrant or process is valid, malicious arrest or malicious prosecution is exclusive remedy and an action for false imprisonment will not lie. Lovell v. Drake, 60 Ga. App. 325, 3 S.E.2d 783 (1939).
Malicious prosecution, false arrest, and false imprisonment are not mutually exclusive, and a plaintiff can proceed before a jury on all three theories. Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84, 547 S.E.2d 320 (2001), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).
It is essential that warrant or other accusation or summons charging the plaintiff with a criminal offense be a valid warrant, accusation, or summons charging such person with some criminal offense. Cary v. Highland Bakery, Inc., 50 Ga. App. 553, 179 S.E. 197 (1935).
If the warrant or process is void, an action for false imprisonment is the exclusive remedy. Lovell v. Drake, 60 Ga. App. 325, 3 S.E.2d 783 (1939).
Warrant presumed legal and valid.
- When, in a petition in a suit for malicious prosecution, a criminal warrant which purported to be predicated upon information contained in an affidavit was alleged as the basis for the prosecution, but when the affidavit contained no jurat, and it did not appear otherwise that the affidavit was sworn to, yet, since the affidavit could in fact have been duly sworn to, and when it did not appear that the affidavit was in fact not duly sworn to, the warrant presumably was issued upon an affidavit duly sworn to, and was presumably legal and valid. Crowe v. Vaughn, 40 Ga. App. 848, 151 S.E. 692 (1930).
Related charges arising from same transaction.
- In a case involving related charges arising from the same transaction, when the court trying the criminal case determines there is sufficient evidence for one of the charges to go to the jury, that is sufficient to show the existence of reasonable grounds for prosecuting other charges reasonably arising from the same transaction. Remeneski v. Klinakis, 222 Ga. App. 12, 473 S.E.2d 223 (1996).
Only distinction between malicious arrest and malicious prosecution lies in question of whether or not prosecution was "carried on."
- The difference between malicious prosecution and malicious arrest is that the former contains the additional element of showing that a prosecution, whatever its extent, was carried on and terminated in favor of the plaintiff. Barber v. H & H Muller Enters., Inc., 197 Ga. App. 126, 397 S.E.2d 563 (1990).
If arrest warrant is dismissed after hearing evidence, verdict of guilty upon indictment charging same offense precludes recovery for malicious prosecution on the ground of probable cause as well as lack of favorable termination of the prosecution. Ayala v. Sherrer, 234 Ga. 112, 214 S.E.2d 548, answer conformed to, 135 Ga. App. 431, 218 S.E.2d 84 (1975).
Arrest under warrant which does not charge violation of penal statute will not support action for malicious prosecution. Livingston v. Schneer's Atlanta, Inc., 61 Ga. App. 637, 7 S.E.2d 190 (1940).
When warrant is issued by civil court on which the plaintiff is arrested and imprisoned, and a commitment hearing or trial is had thereon, the warrant constitutes criminal prosecution or prosecution of the person charged in the affidavit and warrant for a criminal offense, and when such prosecution is maliciously carried on, a right of action accrues to the person so arrested, imprisoned, and prosecuted, since the prosecution is also carried on without any probable cause. Wall v. Spurlock, 85 Ga. App. 379, 69 S.E.2d 379 (1952).
Cause of action for malicious prosecution does not contemplate that criminal process, under which the plaintiff is tried, must be invalid process, though it may be; the motif in the procurement of the indictment or presentment and in the trial of the plaintiff on the process, in bringing into existence the former and in impelling the latter, done with malice and without probable cause, is that which is material. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Action does not accrue until termination of proceedings against arrestee.
- The cause of action of malicious arrest does not accrue until the definite termination, by dismissal or otherwise, of the proceeding against the arrested party. McCord v. Jones, 168 Ga. App. 891, 311 S.E.2d 209 (1983).
Construction with other statutory provisions.
- Construed with former Code 1933, § 105-801 (see now O.C.G.A. § 51-7-40), former Code 1933, § 105-806 (see now O.C.G.A. § 51-7-41) required that criminal prosecution must have terminated favorably to the person prosecuted before the right of action for malicious prosecution accrued. Ayala v. Sherrer, 234 Ga. 112, 214 S.E.2d 548 (1975).
Final termination of criminal case favorably to the defendant amounting to final ending of prosecution is termination such as constitutes a basis for a suit for malicious prosecution. Williams v. Marbut, 52 Ga. App. 588, 183 S.E. 820 (1936).
Termination of prosecution by agreement of parties.
- When the termination of the prosecution has been brought about by compromise and agreement of the parties, an action for malicious prosecution cannot be maintained. Commercial Plastics & Supply Corp. v. Molen, 182 Ga. App. 202, 355 S.E.2d 86 (1987).
Finding of grand jury, necessary to return of indictment or presentment, is not of itself a judgment such as would constitute an essential ingredient of the action for malicious prosecution, without which the action would fail; therefore, it is not necessary that the petition allege that the witnesses giving perjured testimony to the grand jury, on which the presentment was allegedly returned, have been convicted of the offense of perjury in giving such testimony. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Essential element which must be established to authorize recovery is existence of malice. Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967).
Plaintiff is required to present evidence of malice in order to establish a prima facie case of malicious prosecution. McMillan v. Day Realty Assocs., 156 Ga. App. 660, 275 S.E.2d 352 (1980), rev'd on other grounds, 247 Ga. 561, 277 S.E.2d 663 (1981).
Malice may be inferred from a total lack of probable cause. Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983).
Basis of action for malicious prosecution is not alone preferring of the bill of indictment; it is the spirit or motive that brought into life the warrant or bill of indictment. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Desire and attempt to injure must coexist with actual trial of plaintiff, but may relate back and antedate trial, and be evidenced, in the procurement of a first indictment or subsequent processes, and by other attending material facts and circumstances. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Officer's independent judgment in making arrest.
- Actions for false arrest, malicious prosecution, and false imprisonment may successfully be defended by an uncontroverted affidavit of the arresting officer that the decision to arrest the plaintiff was made solely by the officer in the exercise of the officer's professional judgment and independently of any exhortations by the defendants. Jacobs v. Shaw, 219 Ga. App. 425, 465 S.E.2d 460 (1995).
In an action alleging false arrest, malicious prosecution, and false imprisonment, as the arresting officers were parties, not disinterested witnesses, their deposition testimony that the arrest of both plaintiffs was based solely upon their professional judgment, constituted a mere statement of self-serving opinion and a legal conclusion that could not support the grant of summary judgment; moreover, a jury, not a judge, was to construe the facts upon which such opinion was based and could reach a diametrically different conclusion to that reached by the witness. Adams v. Carlisle, 278 Ga. App. 777, 630 S.E.2d 529 (2006).
Want of probable cause is essential element of malicious prosecution cause of action. Kviten v. Nash, 150 Ga. App. 589, 258 S.E.2d 271 (1979).
In suit for malicious prosecution, gravamen of action is want of probable cause on part of person instituting prosecution. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); Davis v. Gilbert, 67 Ga. App. 277, 19 S.E.2d 920 (1942); Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 163 S.E.2d 256 (1968); Morgan v. Mize, 118 Ga. App. 534, 164 S.E.2d 565 (1968); Corbin v. First Nat'l Bank, 151 Ga. App. 33, 258 S.E.2d 697 (1979).
Want of probable cause is the gravamen of an action for malicious prosecution, and there can be no recovery by the plaintiff when there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives. Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 190 S.E. 676 (1937).
Ordinarily, the question of want of probable cause is one for jury resolution, unless from the undisputed facts it is obvious to the court that it does or does not exist. Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983).
Existence of probable cause defeated the plaintiff's actions for false arrest and malicious prosecution in the plaintiff's detention and prosecution for shoplifting charge for which the plaintiff was acquitted. Nunnally v. Revco Disct. Drug Ctrs. of Ga., Inc., 170 Ga. App. 320, 316 S.E.2d 608 (1984).
Trial court did not err in granting summary judgment to property owner on priest's malicious prosecution claim, as probable cause existed to prosecute the priest since a police officer saw the priest violate a restraining order by committing a criminal trespass and by threatening another person; probable cause also existed because the two restraining order violations arose out of the same incident and were reasonably related even though the criminal charge for aggravated stalking arising out of the threat's made to the property owner's employee was later merged into another offense. Holmes v. Achor Ctr., Inc., 260 Ga. App. 882, 581 S.E.2d 390 (2003).
Claim constitutes a compulsory counterclaim.
- A claim for abuse of judicial process is derivative of the judicial process utilized by the plaintiff and must be brought as a compulsory counterclaim. Smith v. Pierce, 179 Ga. App. 724, 347 S.E.2d 692 (1986).
In actions for malicious prosecution, question is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe
- whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution. Sirmans v. Peterson, 42 Ga. App. 707, 157 S.E. 341 (1931); Davis v. Stephens, 45 Ga. App. 227, 164 S.E. 111 (1932); South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935); Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 190 S.E. 676 (1937); West v. Baumgartner, 228 Ga. 671, 187 S.E.2d 665 (1972); Ayala v. Sherrer, 135 Ga. App. 431, 218 S.E.2d 84 (1975); McMillan v. Day Realty Assocs., 156 Ga. App. 660, 275 S.E.2d 352 (1980), rev'd on other grounds, 247 Ga. 561, 277 S.E.2d 663 (1981); Achor Ctr., Inc. v. Holmes, 219 Ga. App. 399, 465 S.E.2d 451 (1995).
Absolute defense to claim of malicious prosecution can rest upon either lack of malice or existence of probable cause. Patton v. Southern Bell Tel. & Tel. Co., 387 F.2d 360 (5th Cir. 1968).
Innocence of the plaintiff is not essential element to the plaintiff's cause of action for malicious prosecution, and mere proof, though conclusive, of the plaintiff's innocence would not entitle the plaintiff to recover damages. Lovinger v. Pfeffer, 107 Ga. App. 636, 131 S.E.2d 137 (1963).
Whether the plaintiff was guilty or innocent of the charge for which the plaintiff was prosecuted is not material. Morgan v. Mize, 118 Ga. App. 534, 164 S.E.2d 565 (1968).
Statute of limitations for malicious prosecution is two years. Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980).
In action for malicious prosecution, injured party may recover severally or jointly against any or all of the tort-feasors conspiring to prosecute the plaintiff maliciously and without probable cause. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Nonjoinder of parties.
- A petition for malicious prosecution is not demurrable (now subject to motion to dismiss) for nonjoinder of parties defendant which fail to name as defendants the judge, the solicitor general (now district attorney), and the lawyer assisting in the prosecution, when they are alleged to have knowingly participated in a plot falsely and maliciously to criminally prosecute the plaintiff without probable cause to the plaintiff's injury. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Pleading malicious prosecution.
- While actions for malicious prosecution are not favored by the courts and should be strictly guarded, and the circumstances under which the actions may be maintained should be accurately stated, the rules of pleading do not require more than that the plaintiff clearly and concisely state the material ultimate facts upon which the recovery must depend; the evidentiary facts necessary to sustain the ultimate facts alleged need not and should not be set forth in the pleadings. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
As to actions for malicious prosecution, the declaration, petition, or complaint must affirmatively show that a judicial proceeding was instituted against the plaintiff, and the original proceeding, including process, must be adequately described. Smith v. Embry, 103 Ga. App. 375, 119 S.E.2d 45 (1961), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672, S.E.2d 7 (2008).
Dismissal of petition.
- A petition that fails to allege either want of probable cause or favorable termination of prior suit is demurrable (now subject to motion to dismiss). Marable v. Mayer, 78 Ga. 710, 3 S.E. 429 (1887).
Sufficiency of complaint.
- In a suit for malicious prosecution against a number of defendants, when it is alleged in the petition that one of the defendants, at the procurement and instigation of the others, instituted two criminal prosecutions against the plaintiff, by procuring the issuance of two warrants charging the plaintiff with the commission of the crimes of forgery and perjury, under which warrants the plaintiff was arrested by an officer and held in custody for a while, that the charges were, with the knowledge of all defendants, false, and that the making of the charges and prosecutions carried on were done by the defendants maliciously and without probable cause, and that the prosecutions terminated favorably to the plaintiff, and further prosecutions under the warrants were abandoned by the defendants, to the plaintiff's damage in the manner and amount alleged, the petition sets out a cause of action against all the defendants, and is good as against general demurrer (now motion to dismiss). Crowe v. Vaughn, 40 Ga. App. 848, 151 S.E. 692 (1930).
Petition for damages based on alleged malicious criminal prosecution, without probable cause, of the plaintiff, by two named defendants, filed after the prosecution had finally terminated in favor of the plaintiff, which alleged that the two defendants maliciously advised, persuaded, and procured the sheriff to swear out a murder warrant by falsely telling the sheriff that the plaintiff had murdered a certain deputy sheriff and that if the sheriff would arrest the plaintiff the defendants would furnish the evidence to convict the plaintiff, set out a cause of action. Selman v. Goddard, 186 Ga. 103, 197 S.E. 250 (1938).
When under ultimate facts alleged the plaintiff pleaded conspiracy to prosecute the plaintiff for murder, the malice to prosecute and injure the plaintiff, and prosecute without probable cause, and that the prosecution had ended favorably to the plaintiff, together with other supporting allegations, as against a general demurrer (now motion to dismiss), the petition was good. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
When the plaintiff was arrested and prosecuted under a valid warrant and a valid accusation and the petition alleged that the plaintiff's prosecution was without probable cause and with malice, that the prosecution terminated favorably to the plaintiff, and that the defendants knew the plaintiff was not guilty of the offense for which the defendants caused the plaintiff to be prosecuted, the petition set out a cause of action. Davison-Paxon Co. v. Norton, 69 Ga. App. 77, 24 S.E.2d 723 (1943).
Injured party was not able to recover under O.C.G.A. § 51-1-6 for the declarant's alleged violation of the criminal statutes. O.C.G.A. § 16-10-26, prohibiting giving a false report of a crime, and O.C.G.A. § 16-10-24, prohibiting obstructing or hindering the police, as these statutes did not provide for a civil cause of action; furthermore, the legislature had provided statutory civil remedies in the form of false arrest under O.C.G.A. § 51-7-1 and malicious prosecution under O.C.G.A. § 51-7-40. Jastram v. Williams, 276 Ga. App. 475, 623 S.E.2d 686 (2005).
In a case brought under 42 U.S.C. § 1983, a former employee's malicious prosecution claim failed since the complaint did not allege either the existence of any criminal proceedings, or a termination of such proceedings in the employee's favor, both of which were elements for a malicious prosecution claim under O.C.G.A. § 51-7-40. Boyd v. Peet, 249 Fed. Appx. 155 (11th Cir. 2007)(Unpublished).
Burden of proof.
- The burden of proof is on the plaintiff who must show that the former action was maliciously carried on, without probable cause, and had terminated in the plaintiff's favor. Thornton v. Story, 24 Ga. App. 503, 101 S.E. 309 (1919); O'Berry v. Davis, 31 Ga. App. 755, 121 S.E. 857 (1924); Darnell v. Shirley, 31 Ga. App. 764, 122 S.E. 252 (1924).
Plaintiff must show affirmatively that the prosecution was malicious and without probable cause, both concurring. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933); South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935); Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); Campbell v. Tatum, 71 Ga. App. 58, 30 S.E.2d 56 (1944).
In an action for damages for an alleged malicious criminal prosecution, the controlling issues are: (1) whether the prosecution was carried on maliciously; and (2) whether it was carried on without any probable cause. Campbell v. Tatum, 71 Ga. App. 58, 30 S.E.2d 56 (1944).
In order to recover in a suit for malicious prosecution, the plaintiff must show the presence of malice and prove that, under the facts as they appeared to the defendant after reasonable inquiry, the defendant lacked probable cause for bringing criminal charges against the plaintiff. Williamson v. Alderman, 148 Ga. App. 297, 251 S.E.2d 153 (1978).
When the plaintiff failed to set forth specific facts tending to show that probable cause did not exist for the plaintiff's arrest and that the charges were instead motivated by malice, the defendant's motion for summary judgment on the issue of malicious prosecution was granted. Jackson v. KMart Corp., 851 F. Supp. 469 (M.D. Ga. 1994).
Plaintiff could not sustain claims of false arrest and malicious prosecution against a police officer and city because there was no evidence of lack of probable cause or malice. Stanford v. City of Manchester, 246 Ga. App. 129, 539 S.E.2d 845 (2000).
Burden of proving actual guilt of plaintiff necessarily rests upon defendant. Lovinger v. Pfeffer, 107 Ga. App. 636, 131 S.E.2d 137 (1963).
Shifting burden of proof.
- By merely denying the plaintiff's allegation that criminal charges were false, the defendants do not shift to the plaintiff the burden of proving the plaintiff's innocence, because the burden resting on the plaintiff was to prove the essential elements of the plaintiff's case and no more. Lovinger v. Pfeffer, 107 Ga. App. 636, 131 S.E.2d 137 (1963).
It would be erroneous for trial judge to charge that burden of proving innocence was on the plaintiff. Lovinger v. Pfeffer, 107 Ga. App. 636, 131 S.E.2d 137 (1963).
Award of damages without finding of malicious action.- Although malice is an element in both malicious prosecution and libel and slander under these sections, the jury awarding compensatory and punitive damages against the defendant in a suit for malicious prosecution and libel and slander did not necessarily make a factual finding that the defendant acted maliciously, when the jury was charged that malice may be inferred and that malice may consist of a "general disregard of the right consideration of mankind" and that it could award punitive damages if the circumstances showed "an entire want of care, and an indifference to consequences." Daniel v. Jenkins, 70 Bankr. 408 (Bankr. N.D. Ga. 1987).
Attorney fees as recoverable damages.
- Attorney fees paid to defend against the criminal prosecution instigated constitute recoverable damages in an action for malicious prosecution. Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983).
Cited in Cook v. Walker, 30 Ga. 519 (1860); Rogers v. Tillman, 72 Ga. 479 (1884); Mimbs v. Battle, 13 Ga. App. 737, 79 S.E. 922 (1913); Brookshier v. Williams, 19 Ga. App. 685, 91 S.E. 1056 (1917); Harbin v. Georgia Stages, Inc., 62 Ga. App. 890, 10 S.E.2d 211 (1940); Sloan v. Glaze, 72 Ga. App. 415, 33 S.E.2d 846 (1945); Walker v. Maxwell, 203 Ga. 393, 46 S.E.2d 923 (1948); Gilstrap v. Gann, 101 Ga. App. 622, 115 S.E.2d 226 (1960); Brown v. Triton, Inc., 115 Ga. App. 785, 156 S.E.2d 200 (1967); Baird v. Collier, 123 Ga. App. 276, 180 S.E.2d 577 (1971); Gaddy v. Gilbert, 140 Ga. App. 508, 231 S.E.2d 403 (1976); Wilder v. Irvin, 423 F. Supp. 639 (N.D. Ga. 1976); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978); Bi-Lo, Inc. v. Stanciel, 148 Ga. App. 614, 251 S.E.2d 834 (1979); Citizens & S. Bank v. McDowell, 160 Ga. App. 69, 286 S.E.2d 58 (1981); Sizemore Sec. Int'l, Inc. v. Lee, 161 Ga. App. 332, 287 S.E.2d 782 (1982); Voliton v. Piggly Wiggly, 161 Ga. App. 813, 288 S.E.2d 924 (1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); Fiske v. Ramey, 171 Ga. App. 210, 319 S.E.2d 26 (1984); K Mart Corp. v. Griffin, 160 Ga. App. 69, 286 S.E.2d 58 (1988); Wilson v. Wheeler's, Inc., 190 Ga. App. 250, 378 S.E.2d 498 (1989); Robbins v. Lanier, 198 Ga. App. 592, 402 S.E.2d 342 (1991); Patterson v. Butler, 200 Ga. App. 657, 409 S.E.2d 531 (1991); Williams v. Taylor, 202 Ga. App. 720, 415 S.E.2d 498 (1992); Blackford v. Wal-Mart Stores, Inc., 17 F.3d 367 (11th Cir. 1994); Marriott Corp. v. Allen, 218 Ga. App. 877, 463 S.E.2d 716 (1995); Kelly v. Serna, 87 F.3d 1235 (11th Cir. 1996); Brooks v. H & H Creek, Inc., 223 Ga. App. 635, 478 S.E.2d 451 (1996); Tate v. Holloway, 231 Ga. App. 831, 499 S.E.2d 72 (1998); K-Mart Corp. v. Lovett, 241 Ga. App. 26, 525 S.E.2d 751 (1999); Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 532 S.E.2d 463 (2000); Fleming v. U-Haul Co., 246 Ga. App. 681, 541 S.E.2d 75 (2000); Sherrill v. Stockel, 252 Ga. App. 276, 557 S.E.2d 8 (2001).
Application to Specific Cases
Malice required for malicious prosecution action.
- Judgment on claim of forgery was reversed because the defendant's reliance on the bare allegations of the affidavit of the payee on the check without taking any steps to verify the information in it created a fact issue for the jury about whether the defendants' acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the plaintiff and, thus, whether the defendants acted with the malice necessary to support a malicious prosecution action. McClelland v. Courson's 441 South Station, Inc., 248 Ga. App. 170, 546 S.E.2d 300 (2001).
It is the nature of the prosecution, not the express legal charge, which is the crucial ingredient; thus, when the act charged by the defendant was precisely the offense for which the plaintiff was ultimately prosecuted, the defendant could be found to have instigated the criminal proceeding. Willis v. Brassell, 220 Ga. App. 348, 469 S.E.2d 733 (1996).
Conviction precludes claim for malicious prosecution.
- Defendant's conviction for a zoning code violation precluded a claim for malicious prosecution when it is essential to the maintenance of an action for malicious prosecution that the plaintiff prove that the prosecution not only terminated, but terminated in the plaintiff's favor. Morton v. McCoy, 204 Ga. App. 595, 420 S.E.2d 40, cert. denied, 204 Ga. App. 922, 420 S.E.2d 40 (1992).
Claim not barred by judicial estoppel.
- Employee's malicious prosecution claim was not barred by judicial estoppel as the claim was not viable until after the employee filed a Chapter 7 bankruptcy petition; the employee was not required under 11 U.S.C. § 541(a)(7) to amend the petition to reflect the malicious prosecution claim. Vojnovic v. Brants, 272 Ga. App. 475, 612 S.E.2d 621 (2005).
When victim of and witnesses to robbery had identified the defendant from a photo lineup, there was both sufficient information to provide probable cause for the plaintiff's arrest and no evidence of malice in the arrest and, therefore, no action for false arrest and malicious prosecution. Franklin v. Consolidated Gov't, 236 Ga. App. 468, 512 S.E.2d 352 (1999).
Probable cause, settlement of action, bars claim.
- A corporation's criminal prosecution of a former employee could not provide a basis for the employee's latter claim of malicious prosecution and intentional infliction of emotional distress, given a magistrate's finding of probable cause and a settlement by the employee of the claim. Biven Software, Inc. v. Newman, 222 Ga. App. 112, 473 S.E.2d 527 (1996).
Lack of probable cause.
- A contractor accused a property owner of theft by deception by falsely asserting that the owner refused to pay for a fence; the owner was arrested, but the charges were later dropped. That the magistrate found probable cause to issue the arrest warrant was not a defense, as the magistrate was not disinterested; the magistrate had several ex parte meetings with and gave legal advice to the contractor, and assisted the contractor in using the threat of criminal prosecution in an attempt to coerce the owner into paying the disputed portion of the bill. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
As a contractor's dispute with a homeowner over a bill for building a fence was a civil matter, and the Georgia Constitution prohibits imprisonment for debt, a magistrate lacked probable cause to issue a warrant to arrest the homeowner for theft by deception. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
Action arising from alleged malicious prosecution for shoplifting.
- The policy of this state that there can be no recovery in an action for false arrest or false imprisonment arising out of the detention, with reasonable cause, of one suspected of shoplifting was applicable in a malicious prosecution action for an alleged shoplifting. Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967).
Tenant's reentry into vacated premises.
- Because the tenant ceased to be a tenant upon vacating the premises before the rental term ended, the tenant's attempted reentry was a criminal trespass which constituted probable cause for the landlord to swear out a warrant against the tenant and, therefore, summary judgment for the landlord was proper. Erfani v. Bishop, 251 Ga. App. 20, 553 S.E.2d 326 (2001).
Action involving criminal trespass.
- In light of their understanding of prior litigation, the defendants reasonably believed that the plaintiff was guilty of criminal trespass. Holmes v. Achor Ctr. Inc., 242 Ga. App. 887, 531 S.E.2d 773 (2000).
Because the first officer did not lack probable cause to arrest the plaintiff for criminal trespass based on the report of suspicious behavior by the private security officer for the park, the first officer's supervisor's statement that a magistrate stated there was probable cause to arrest the plaintiff for criminal trespass, and the first officer's independent observation of the plaintiff during the investigatory detention, summary judgment was granted to the first officer on the plaintiff's malicious prosecution claim. Proescher v. Bell, 966 F. Supp. 2d 1350 (N.D. Ga. Aug. 21, 2013).
Defendants assumed risk of malicious prosecution in bringing action without full inquiry.
- When the defendants, operators of a trailer court, sought to eject the plaintiff (invitee of certain tenants) or to prosecute the plaintiff for trespass without inquiring as to the plaintiff's right to be on the premises, the defendants did so at their own risk. Ellis v. Knowles, 90 Ga. App. 40, 81 S.E.2d 884 (1954).
When a store manager did not follow investigative policy and practices of the defendant store prior to taking out a warrant charging the plaintiff, a victim of financial identity fraud, with issuance of a bad check, there was a jury question as to the existence of probable cause. Nicholl v. Great Atl. & Pac. Tea Co., 238 Ga. App. 30, 517 S.E.2d 561 (1999).
Defense of ongoing prosecution.
- Although the dismissal of the warrant on felony bad check offense without prejudice for lack of venue was not a conclusive termination of the prosecution, it constituted prima facie evidence that the prosecution had terminated in favor of the defendant by reason of the prosecutor's voluntary abandonment, and the burden thus shifted to the prosecutor to show in support of the prosecutor's motion that the prosecution had not ended; given the lack of any evidence that the prosecution had been reinstituted or was otherwise not abandoned, the trial court erred by granting the prosecutor's motion and dismissing the action for malicious prosecution. Vadner v. Dickerson, 212 Ga. App. 255, 441 S.E.2d 527 (1994).
Defendant did not instigate prosecution of plaintiff.
- Evidence did not establish that the defendant instigated a criminal prosecution of the plaintiff since the prosecution of the plaintiff began, not with the provision of any information to the authorities by the defendant, but by happenstance during an ongoing investigation into abuse of surplus government property, and the defendant only denied involvement in any alteration of certain documents which created an inference that the plaintiff had committed forgery. Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 546 S.E.2d 861 (2001).
Because the undisputed facts of the second officer's limited participation as a backup officer did not amount to the "instigation" that would cause the second officer to be named as a "prosecutor" in a claim of malicious prosecution under Georgia law, the malicious prosecution claim against the second officer was required to be dismissed. Proescher v. Bell, 966 F. Supp. 2d 1350 (N.D. Ga. Aug. 21, 2013).
Fact that plaintiff in action for malicious institution of lunacy proceedings designated action as one of malicious prosecution does not require conclusion that it is predicated on this section, nor is a designation of a cause of action the proper means of determining its legal effect. Guth v. Walker, 92 Ga. App. 490, 88 S.E.2d 821 (1955).
False allegations by solicitor general (now district attorney) as prosecuting officer.
- Allegations that the solicitor general (now district attorney) appeared several times before the adjourned session of the grand jury and urged the grand jury to indict the plaintiff for a certain murder, stating that the plaintiff was guilty and that evidence of the crime would unfold at the trial, that the solicitor general knew such representations were false, that there was no probable cause to suspect the plaintiff of the crime, and that all of such acts were committed as a part of a common scheme of the defendants to falsely charge and maliciously prosecute the plaintiff, negated the presumption of legality of the acts of the solicitor general as the duly qualified prosecuting officer of the state. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
While officers of court are presumed to have acted legally, this is a rebuttable presumption, and allegations that the prosecuting officer, or the counsel, employed to assist in the prosecution, acted knowingly and with malice and without probable cause in any or all stages of the malicious prosecution alleged, whether procuring the indictments or trying the plaintiff, or securing testimony illegally to further the prosecution, will save the petition against demurrer (now motion to dismiss). Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Malicious prosecution based on illegal search warrant.
- Charge that the defendant illegally executed a search warrant which the defendant personally illegally procured set forth a cause of action for malicious prosecution under this section. Hollinshed v. Shadrick, 95 Ga. App. 88, 97 S.E.2d 165 (1957).
Principal's liability for agent's malicious prosecution.
- The principal is liable in a proper case for malicious prosecution when the prosecution same is conducted by the agent in furtherance of the business of the principal and within the scope of the agent's authority. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).
When the plaintiff told the agent of the corporation that the plaintiff did not have sufficient funds in the bank to cover the check, and the agent within the scope of the agent's authority accepted the check in payment of merchandise sold on behalf of the corporation, the defendant corporation was thus charged with knowledge of facts concerning the transaction, which disclosed that the plaintiff was not guilty of the crime charged against the plaintiff, and the jury would be authorized to return a verdict against the defendant corporation for malicious prosecution. Barnes v. Gossett Oil Co., 58 Ga. App. 102, 197 S.E. 902 (1938).
In order for the bank to be held liable for a malicious prosecution instigated by a false statement made by the bank's agent or the bank's executive vice president, it must appear that the bank authorized such malicious prosecution, and that the prosecution was done by the officer and agent, acting within the scope of their employment or at the discretion or command of the bank. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).
A bank is not liable for malicious prosecution in which its vice president participated, encouraged, aided, and purported to act for the corporation, when it does not affirmatively appear that the bank authorized the vice president to engage in such prosecution or aid and abet therein or that the bank assented thereto or ratified the prosecution. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).
General rule is that authority conferred upon agent to collect debt does not imply authority to cause arrest so as to render the principal liable in an action for malicious prosecution in the absence of ratification or adoption of the agent's act. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).
Agent's liability.
- Agent of the defendant corporation who authorized a criminal prosecution against the plaintiff and agent who, acting under specific authority of the corporation, took a warrant for the plaintiff's arrest (for giving a check with insufficient funds in the bank) could not be held liable therefor in a joint action against them and the corporation for malicious prosecution, since they had laid before the solicitor fairly and truthfully all of the facts which were within their knowledge or which reasonably could have been ascertained by them. Barnes v. Gossett Oil Co., 58 Ga. App. 102, 197 S.E. 902 (1938).
In a malicious prosecution case brought against a medical professional company and the company's owning doctor by the company's former office manager and a former part-time worker after those former employees were charged with theft and fraud but the charges were dismissed, the trial court erred by granting the company summary judgment since there existed genuine issues of material fact as to whether a new chief operating officer hired for the company, and an agent for the company, had misrepresented the officer's knowledge that the part-time worker had been re-hired by the company to work on an office manual and paid accordingly. However, there existed no evidence that the owning doctor made any knowing misrepresentations to the investigating detective since the owning doctor had no knowledge that the part-time worker had been rehired at any time. Barnette v. Coastal Hematology & Oncology, P. C., 294 Ga. App. 733, 670 S.E.2d 217 (2008).
Action arising from arrest of invited guest.
- In an action for malicious prosecution, when an employee of an apartment complex had given notice to the plaintiff that the plaintiff was forbidden to enter the property, even though the plaintiff entered as the guest of a tenant, the employee had probable cause to arrest the plaintiff for malicious trespass when the plaintiff deviated from the purpose for which the plaintiff was invited and entered upon a portion of the premises unrelated to the invitation. Arbee v. Collins, 219 Ga. App. 63, 463 S.E.2d 922 (1995).
Action arising from passing of bad check.
- Trial court erred in granting summary judgment to the defendants because a factual issue remained as to whether the defendants maliciously prosecuted the plaintiff based on evidence showing that the plaintiff went to the defendants with documents which indicated that the plaintiff did not write the dishonored check and that the return of a certified letter had indicated the address to which the letter was sent was not the plaintiff's home. Joseph v. Home Depot, Inc., 246 Ga. App. 868, 542 S.E.2d 618 (2000).
Whether probable cause existed to prosecute allegedly fraudulent check writing is jury question.
- The gravamen of the offense of writing a check knowing there were insufficient funds was an intent to defraud, which is not shown when there is an extension of credit at the time the check is given, and the question of whether or not the criminal process was instituted without probable cause and with malice should, under facts authorizing conflicting inferences, have been submitted to the jury in a malicious prosecution action under proper instructions from the court. Barnes v. Gossett Oil Co., 56 Ga. App. 220, 192 S.E. 254 (1937), later appeal, 58 Ga. App. 102, 197 S.E. 902 (1937).
Guilt in fact defense.
- In a suit alleging malicious prosecution that was dismissed by the court without trial, evidence of guilt in fact of the accused is admissible as a defense to the damage element of the tort and, if so proved, is a bar to recovery. Wal-Mart Stores, Inc. v. Blackford, 264 Ga. 612, 449 S.E.2d 293 (1994).
Effect of subsequent acquittal on appeal.
- After a defendant was convicted by a jury of bribery and the grand jury had found probable cause when the situation was presented to it by the district attorney, a subsequent acquittal on appeal does not indicate malicious prosecution, since the evidence was at least convincing enough to support a jury decision, even though erroneous. Rice v. Mansour, 176 Ga. App. 617, 337 S.E.2d 25 (1985).
After the plaintiff was found guilty of one of the charges against the plaintiff, the plaintiff's claim failed to satisfy the third and fifth elements of malicious prosecution. Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986).
Dismissal of delinquency petition.
- Juvenile court proceedings cannot reasonably be viewed as having terminated favorably to the plaintiff, given the fact that the referee found the plaintiff to be guilty of shoplifting beyond a reasonable doubt and the ultimate dismissal of the delinquency petition was obviously based solely on the referee's determination, made at the conclusion of the informal 90-day probationary period, that the appellant had demonstrated a lack of need for court-ordered treatment or rehabilitation. J.C. Penney Co. v. Miller, 182 Ga. App. 64, 354 S.E.2d 682 (1987).
Trial court properly denied the employer's motion for directed verdict as to a malicious prosecution claim because the employee showed that the employer authorized the employee to write checks to the employee and then reported the money stolen, the employer manufactured and post-dated documents to erroneously show that employee wrote checks in violation of company policy and that the employee was not authorized to use a credit card, and the employer hired investigators to inquire about the alleged theft, who then contacted the police and provided the fabricated documents. Vojnovic v. Brants, 272 Ga. App. 475, 612 S.E.2d 621 (2005).
Evidence established malice and lack of probable cause.
- In an attempt to pressure a property owner into paying the disputed portion of a bill, a contractor accused the owner of theft by deception by falsely asserting that the owner refused to pay for a fence; the owner was arrested, but the charges were later dropped. As the contractor acted with malice and lacked probable cause to initiate criminal proceedings, the owner properly prevailed on a malicious prosecution claim. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
Judgment notwithstanding the jury's verdict for the former employee was properly denied on the employee's claim for malicious prosecution because the company's owner provided the police with false information about the employee, and there was evidence that at least one of the crimes alleged by the owner did not occur; there was a lack of probable cause as the trial evidence supported a finding that the owner pursued a prosecution of the employee knowing that the employee had not committed the alleged crimes; and there was sufficient evidence of malice as the owner disliked the employee, and a jury could find that the owner's actions against the employee were motivated by personal spite. Carly Ray Industries, Inc. v. Mays, 354 Ga. App. 638, 841 S.E.2d 100 (2020).
Conduct supported punitive damages award.
- A contractor's using the threat of criminal prosecution in an attempt to pressure a property owner into paying a disputed bill, which resulted in the owner's being arrested and jailed, supported an award of punitive damages under O.C.G.A. § 51-12-5.1(b). Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
Employee action alleging malicious prosecution.
- Trial court erred in granting summary judgment in favor of a corporation and the corporation's president in an employee's action alleging malicious prosecution and malicious arrest because genuine issues of fact remained as to the issues of probable cause and malice; although the president averred that the president did not know that the employee was not licensed when the president hired the employee, the affidavits the employee submitted indicated otherwise. McKissick v. S. O. A., Inc., 299 Ga. App. 772, 684 S.E.2d 24 (2009).
Neighbors liable for intentional infliction of emotional distress and malicious prosecution.
- Homeowner's judgments against the homeowner's neighbors for malicious prosecution and intentional infliction of emotional distress did not constitute a double recovery because separate conduct supported the emotional distress claim including the neighbors gathering outside the homeowner's home to celebrate the homeowner's arrest and publicly humiliate the homeowner in front of the homeowner's spouse and children. Turnage v. Kasper, 307 Ga. App. 172, 704 S.E.2d 842 (2010).
Relevance of prior criminal history in malicious prosecution.
- Malicious prosecution case was remanded to the trial court because the trial court, after concluding that the plaintiff's past criminal history was relevant, should have thereafter considered whether the plaintiff's prior arrests nevertheless should be excluded because of their inherently prejudicial nature or because they potentially would confuse or mislead the jury. Rivers v. K-Mart Corp., 321 Ga. App. 788, 743 S.E.2d 464 (2013).
Trial court's findings upheld on appeal.
- A trial court's findings in favor of a customer on the customer's counterclaim for malicious prosecution in a contractor's breach of contract and trover claim were upheld as the evidence established that the contractor had signed a sworn affidavit stating that the customer committed criminal fraud by not paying for an installed fence on the customer's property and refused to pay when the amount due was merely in dispute and the customer had, in fact, tendered a check for a portion of the amount due indicating that the remaining balance was in dispute. The fact that the contractor's execution of those false statements had consequences not intended, namely that the customer spent two nights in jail, was insufficient to absolve the contractor's liability for making the statements. Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009).
RESEARCH REFERENCES
Am. Jur. 2d.
- 52 Am. Jur. 2d, Malicious Prosecution, §§ 1 et seq., 6 et seq.
1 Am. Jur. Pleading and Practice Forms, Abuse of Process, § 2. 17 Am. Jur. Pleading and Practice Forms, Malicious Prosecution, § 1 et seq.
C.J.S.- 54 C.J.S., Malicious Prosecution, § 1 et seq.
ALR.
- Institution of prosecution on false information without investigation as showing lack of probable cause, 5 A.L.R. 1688.
Injury incident to notoriety or publicity as an element of damages in action for malicious prosecution, 37 A.L.R. 658.
Expense of litigation, other than taxable costs, as basis of separate action against party to former suit, 39 A.L.R. 1218.
Action for malicious prosecution or false arrest based on extradition proceeding, 55 A.L.R. 353.
Status, character, competency, or personal interest of attorney as affecting rule regarding advice of counsel in action for malicious prosecution, 81 A.L.R. 516.
Liability of municipality or other political unit for malicious prosecution, 103 A.L.R. 1512.
Entry of judgment under power of attorney to confess judgment as ground of action for malicious prosecution, 112 A.L.R. 331.
Defendant's acquiescence in, approval of, or silence regarding, acts of another for which he was not otherwise responsible as ground of liability in action for malicious prosecution or false arrest, 120 A.L.R. 1322.
Right, in civil action for malicious prosecution, to prove or rely on facts not known to defendant when he began prosecution or action which show or tend to show guilt or liability of plaintiff, 125 A.L.R. 897.
Malicious prosecution: may prosecutor avoid liability on the ground of probable cause or absence of malice, despite the fact that his motive was to collect debt, enforce claim for damages, or recover property, 139 A.L.R. 1088.
Malicious prosecution predicated upon prosecution, institution, or instigation of administrative proceedings, 143 A.L.R. 157.
Malicious prosecution: possession of stolen property as probable cause, 172 A.L.R. 1340.
Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R.2d 646; 81 A.L.R.4th 1031.
Maintainability of malicious prosecution action by one prosecuted on charge not amounting to a crime or under defective accusation, 36 A.L.R.2d 786.
Malicious prosecution or similar tort action predicated upon disciplinary proceedings against an attorney, 52 A.L.R.2d 1217.
Assignability of claim for malicious prosecution, 76 A.L.R.2d 1286.
Judgment in false imprisonment action as res judicata in later malicious prosecution action, or vice versa, 86 A.L.R.2d 1385.
Probable cause or want thereof, in malicious prosecution action, as question of law for court or of fact for jury, 87 A.L.R.2d 183.
Liability of attorney acting for client, for false imprisonment or malicious prosecution of third party, 27 A.L.R.3d 1113; 46 A.L.R.4th 249.
Use of criminal process to collect debt as abuse of process, 27 A.L.R.3d 1202.
Admissibility of defendant's rules or instructions for dealing with shoplifters, in action for false imprisonment or malicious prosecution, 31 A.L.R.3d 705.
Malicious prosecution predicated upon prosecution, institution, or instigation or disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.
Malicious prosecution: liability of perpetrator of crime for damages to innocent persons subjected to prosecution for the commission of such crime, 40 A.L.R.3d 1005.
Threatening, instituting, or prosecuting legal action as invasion of right of privacy, 42 A.L.R.3d 865.
Civil liability of judicial officer for malicious prosecution or abuse of process, 64 A.L.R.3d 1251.
May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 A.L.R.3d 901.
Malicious prosecution: liability for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense, 66 A.L.R.3d 10.
Proceedings for injunction or restraining order as basis of malicious prosecution action, 70 A.L.R.3d 536.
Immunity of prosecuting attorney or similar officer from action for false arrest or imprisonment, 79 A.L.R.3d 882.
Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.
Civil liability of attorney for abuse of process, 97 A.L.R.3d 688.
Liability for negligently causing arrest or prosecution of another, 99 A.L.R.3d 1113.
Venue in action for malicious prosecution, 12 A.L.R.4th 1278.
Termination of criminal proceedings as result of compromise or settlement of accused's civil liability as precluding malicious prosecution action, 26 A.L.R.4th 565.
Liability of attorney, acting for client, for malicious prosecution, 46 A.L.R.4th 249.
Malicious prosecution: defense of acting on advice of justice of the peace, magistrate, or lay person, 48 A.L.R.4th 250.
Liability of better business bureau or similar organization in tort, 50 A.L.R.4th 745.
Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.
Admissibility of evidence of polygraph test results, or offer or refusal to take test, in action for malicious prosecution, 10 A.L.R.5th 663.
Construction and application of Federal Tort Claims Act provision (28 USCA § 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 A.L.R. Fed. 605.