Opinion
34948.
DECIDED APRIL 12, 1954.
Malicious prosecution. Before Judge Nichols. Floyd Superior Court. September 26, 1953.
Hicks Culbert, for plaintiffs in error.
Clower Anderson, contra.
The petition in this case contained the necessary averments to state a cause of action for malicious prosecution, and contained no allegations negativing the allegation of want of probable cause. The general demurrers of the defendants were properly overruled.
DECIDED APRIL 12, 1954.
Roy Knowles sued A. B. Ellis and Mrs. A. B. Ellis for damages for alleged malicious prosecution. The petition alleged: that Mrs. Ellis owned a trailer court in Rome, Georgia; that A. B. Ellis managed the court as agent for his wife; that on February 10, 1953, Mr. and Mrs. R. E. Bradford, owners of a house trailer, in response to an invitation extended by the defendants to the public, came on the trailer parking lot and parked their house trailer on an area assigned to them by the defendants, and paid for the privilege in advance to Wednesday, March 11, 1953; that, on or about March 9, 1953, Mr. and Mrs. Bradford requested the plaintiff, who operates a trailer court on the opposite side of the street from the defendants' court, to move their trailer from the defendants' trailer court over to the plaintiff's court; that, pursuant to said request, the plaintiff went upon the defendants' trailer court and began jacking up the trailer belonging to the Bradfords preparatory to moving it to his court; that the trailer court operated by the defendants is an unenclosed area, no part of which is a field, orchard, garden, or cultivated land, and in going on the premises the plaintiff used the clearly defined roadways and paths commonly used by persons renting spaces on the defendants' court, and did not run over any flowers, crops shrubbery, or other planted or cultivated vegetation, and did not destroy any property; that, shortly after the plaintiff came upon the property on March 9, A. B. Ellis ordered the plaintiff off the court; that the plaintiff went across to his court and called the police, and that when they arrived, he returned to the defendants' court and moved the trailer; that on March 12, 1953, A. B. Ellis, acting for himself and as agent of his wife, swore out a warrant charging the plaintiff with the offense of trespassing on property located from East 19th to East 20th Streets; that the plaintiff was arrested under said warrant, was required to give bond, was tried before the magistrate issuing the warrant and discharged, such discharge terminating the prosecution in the plaintiff's favor, there being no further prosecution; that the prosecution was instituted maliciously and without probable cause, in that the defendants knew that Mr. and Mrs. R. E. Bradford had expressly invited the plaintiff to come upon the said premises for the purpose of moving their trailer, and knew that the plaintiff had not committed a trespass; that the prosecution damaged the plaintiff. The petition also alleged that the defendants in the exercise of ordinary care could have known that the plaintiff had been invited upon said premises by the persons in possession. The defendants' general demurrers were overruled, and the defendants excepted. Pending this appeal, Mrs. Ellis died and on proper motion Mr. A. B. Ellis, in his capacity as temporary administrator of the estate of his deceased wife, was made a party hereto.
1. The court did not err in overruling the defendant's general demurrers. The averments necessary to state a cause of action for malicious prosecution are contained in the petition in this case, to wit: (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. Cary v. Highland Bakery, Inc., 50 Ga. App. 553 ( 179 S.E. 197).
2. The tenants of the defendants had a right to invite the plaintiff upon the leased premises. Horsely v. State, 16 Ga. App. 136 (2) ( 84 S.E. 600); Mitchell v. State, 12 Ga. App. 557 (2) ( 77 S.E. 889). The allegations of the petition do not affirmatively show that any right of the landlord was violated. It was not necessary for the plaintiff to allege that the defendants actually knew that the plaintiff had been invited on the premises by the tenants. If the defendants sought to eject the plaintiff or to prosecute him for trespass, without inquiring as to the plaintiff's right to be on the premises, they did so at their own risk.
3. Code § 26-3002, defining trespass, does not apply to open or uncultivated real estate. Wiggins v. State, 119 Ga. 216 (3) ( 46 S.E. 86).
4. The petition does not show affirmatively that there was probable cause for the issuance of the warrant.
The court did not err in overruling the defendants' general demurrers.
Judgments affirmed. Gardner, P. J., and Quillian, J., concur. Nichols, J., disqualified.