Opinion
43651.
SUBMITTED MAY 8, 1968.
DECIDED JUNE 10, 1968. REHEARING DENIED JUNE 26, 1968.
Malicious prosecution. Lowndes City Court. Before Judge Connell.
Burch Boswell, John S. Boswell, Sr., for appellant.
Franklin, Barham, Coleman, Elliott Blackburn, Wilby C. Coleman, for appellees.
In an action for malicious prosecution, the pleadings and affidavits pose a jury question as to whether the defendants acted maliciously and without probable cause in causing a warrant to issue for the arrest of the plaintiff for the offense of disposing of mortgaged property.
SUBMITTED MAY 8, 1968 — DECIDED JUNE 10, 1968 — REHEARING DENIED JUNE 26, 1968.
Fred Bailey, plaintiff in this action for malicious prosecution, co-signed a note to the defendant finance company with one Ferrell Sellers in the sum of $204, the note containing a bill of sale to secure debt to plaintiff's Ford truck. The petition alleges that on March 16, 1966, the co-defendant Jenkins, employee of Century Finance Co., called the plaintiff to demand payment of the overdue balance of $38.50, and there ensued a conversation relative to picking up the truck. Plaintiff alleges that he heard nothing further until March 21, when he was arrested for the offense of disposing of mortgaged property, on a warrant sworn out by the defendant. This case was ended by a nolle prosequi and plaintiff brings the present suit for damages on the ground that the warrant was sworn out maliciously and without probable cause. The defendant filed a motion for summary judgment accompanied by affidavits of a constable and justice of the peace which show the following facts: Jenkins consulted the magistrate, an attorney, about the best method for collecting the $38.50 debt. He was advised to file a "purchase money attachment" for the truck, which was done. The constable went to the Bailey residence and, failing to find the vehicle, asked a woman who came to the door and whom "he presumed to be either the wife or daughter of Fred Bailey" where the truck was and was told that Bailey no longer owned it. The constable made an appropriate entry and advised the justice of the peace of these facts. The magistrate then advised Jenkins to swear out the criminal warrant, which was done. According to the plaintiff the truck was in fact, and had been for over three months, in the city at the residence of his father-in-law in need of repairs to place it in an operable condition. On this state of facts the trial court granted the defendants' motion for summary judgment, and the plaintiff appeals.
"To establish malice sufficient to authorize a recovery in cases of this kind, it is not necessary to prove the existence of personal hatred, ill-will, or motives of revenge on the part of the prosecutor toward the accused . . . Indeed, want of probable cause lies at the foundation of the action. Malice sufficient to sustain a recovery may be inferred from want of probable cause, but the want of such cause may never be inferred from malice . . . It is perfectly consistent that one who really had no desire to injure should believe honestly that certain facts known to him established the guilt of another; if he did so in good faith and had reasons for such faith, there might exist probable cause, although in fact the circumstances did not fix the guilt of the accused. In all such cases, however, the jury shall determine the existence or want of probable cause." Hicks v. Brantley, 102 Ga. 264, 268 et seq. ( 29 S.E. 459). "While a defendant to an action for malicious prosecution may show that he was acting on the advice of counsel in instituting the prosecution which is the basis of the action against him, the mere fact that he so acted on advice of counsel, while it may go to the mitigation of damages, is not sufficient as a matter of law to show that he acted with probable cause. Such question is for the jury to determine under all the facts." Peppas v. Miles, 82 Ga. App. 438 (3) ( 61 S.E.2d 429). There is no evidence in this record that the defendants had any reason to believe plaintiff had disposed of the truck, other than the fact that the constable was so informed by an unidentified woman, and it does not appear that any attempt was made to contact the plaintiff to ascertain whether this was in fact true.
Since the facts given present a jury question, it was error to grant the motion for summary judgment. The other enumerations of error are either non-reviewable or too imperfectly presented to warrant examination.
Judgment reversed. Jordan, P. J., and Pannell, J., concur.