Opinion
42894.
ARGUED JUNE 8, 1967.
DECIDED JUNE 20, 1967.
Malicious use of process. Fulton Superior Court. Before Judge Etheridge.
N. T. Anderson, for appellant.
Rose, Silverman Hunt, George S. Stern, for appellee.
A petition alleging in substance that the plaintiff delivered property to the defendant for repair, that the defendant failed to make repairs and remove certain components so as to render the property completely unusable, that on the defendant's refusal to perform plaintiff stopped payment on a check previously delivered, and that thereafter the defendant falsely and maliciously charged him with uttering a check without sufficient funds, knowing this to be untrue; that the prosecution ended favorably to the plaintiff and that he suffered damages, sufficiently states a cause of action.
ARGUED JUNE 8, 1967 — DECIDED JUNE 20, 1967.
The plaintiff Powell alleged that the defendant, a bicycle repairman, accepted plaintiff's bicycle for the purpose of tightening the chain guard, adjusting the handle bars, aligning the front wheel, and greasing. Prior to examining the work done he paid the defendant a $5.75 charge by check, but on examination found that not only had the work not been done, but a chain guard had been removed and the bicycle rendered unusable. He thereupon informed the defendant that unless the work was "made good" he would stop payment on the check. The defendant refused. Plaintiff, who had sufficient funds in the bank to cover the check, notified the bank to stop payment and this was done. The defendant then knowingly falsely represented by affidavit sworn out for the purpose of having plaintiff arrested that the check had been returned for insufficient funds and that plaintiff was guilty of the offense of giving a bad check with intent to defraud. The defendant acted solely from malice, knowing that plaintiff did have sufficient funds in the bank, that payment was not refused for that reason, and after refusal to repair the bicycle and notice that payment for the repairs claimed would be stopped unless he did so, in all of which he was actuated by malice against the plaintiff. At the commitment hearing he gave knowingly false testimony against the plaintiff to the same effect. The plaintiff was thereupon confined in jail for two days before he could make bond and suffered various special damages including loss of earnings. Thereafter he was tried and acquitted. The entire prosecution was carried on by the defendant wilfully, falsely, maliciously, and without probable cause.
The petition was dismissed on general demurrer and plaintiff appeals.
A cause of action for malicious prosecution is set out where it is shown: "(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, 50 Ga. App. 553 ( 179 S.E. 197); Henderson v. Francis, 75 Ga. 178 (5)." Hight v. Steely, 86 Ga. App. 137, 139 ( 70 S.E.2d 886). It is here contended that one necessary element, lack of probable cause, is not shown by the facts pleaded. Unless this appears as a matter of law, the issue of probable cause is for the jury. Code § 105-802; Timeplan c. Corp. v. Colbert, 108 Ga. App. 753, 756 ( 134 S.E.2d 476). Such causal deficiency exists, as stated in that case, where "the circumstances are such as to satisfy a reasonable man that the defendant had no reasonable ground for proceeding except his desire to injure the person sued." Where one causes another to be criminally prosecuted by means of knowingly false testimony for an end personal to himself (such as revenge, or in an effort to collect an unowed debt) this constitutes probable cause. Wheeler v. Satilla Rural Elec. Membership Corp., 103 Ga. App. 401 ( 119 S.E.2d 375). The defendant's contention that the check was given for services rendered and that he had reason to believe the plaintiff was attempting to cheat and swindle him, whether or not he had sufficient funds in the bank at the time payment was stopped, is one which addresses itself to the jury. The gravamen of the offense charged is the intent to defraud, the obtaining of something of value without paying for it; where the party receiving the check parts with nothing of value in return for it the offense is not proved. Thompson v. State, 85 Ga. App. 298 ( 69 S.E.2d 206). The plaintiff here alleges that he stopped payment on the check because the repairs for which the check was given were not made. If the defendant, knowing these facts to be true, procured the prosecution by false testimony as alleged, such misconduct would amount to malicious prosecution. A cause of action was set out, and the court erred in dismissing the petition on demurrer.
Judgment reversed. Jordan, P. J., and Quillian, J., concur.