Applicability to actions for malicious use of civil process.

- The provisions of this section, applicable to an action for malicious prosecution, provide appropriate guidelines for determining the existence of malice and want of probable cause in an action for malicious use of civil process. American Plan Corp. v. Beckham, 125 Ga. App. 416, 188 S.E.2d 151 (1972).

The policy of the courts and the state is to disfavor malicious prosecution actions and to encourage citizens to bring to justice persons who are apparently guilty. K-Mart Corp. v. Coker, 261 Ga. 745, 410 S.E.2d 425 (1991).

This section pertains to actions for malicious prosecution or malicious use of legal process and has no application to action for trespass. Wilson v. Dunaway, 112 Ga. App. 241, 144 S.E.2d 542 (1965).

Absence of probable cause for prosecution is necessary in order to maintain action for malicious prosecution. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936).

Lack of probable cause to prosecute is the essential element of an action for malicious prosecution. Allen v. Wometco Cable TV, 198 Ga. App. 103, 400 S.E.2d 362 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 362 (1991).

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); Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981); McMillan v. Day Realty Assocs., 159 Ga. App. 366, 283 S.E.2d 298 (1981).

The issue in a suit for malicious prosecution is want of probable cause on the part of the person instituting the prosecution, not the plaintiff's guilt or innocence. Gibson's Prods. Co. v. McDaniel, 122 Ga. App. 264, 176 S.E.2d 548 (1970).

There can be no recovery by the plaintiff when there was any probable cause for prosecution, even though it may appear that the prosecutor was actuated by improper motives. Davis v. Gilbert, 67 Ga. App. 277, 19 S.E.2d 920 (1942); Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947); Smith v. Ragan, 140 Ga. App. 33, 230 S.E.2d 89 (1976).

Probable cause defined.

- Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of crime for which one was prosecuted. 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); Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967); Morgan v. Mize, 118 Ga. App. 534, 164 S.E.2d 565 (1968); Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).

Probable cause for the institution of proceedings in court is supported by such facts as would authorize an honest belief in the prosecutor, as a reasonable and prudent person, that the action and the means taken in prosecution of it are just, legal, and proper. Harber v. Davison-Paxon Co., 46 Ga. App. 457, 167 S.E. 781 (1933).

Want of probable cause exists when the circumstances are such as to satisfy a reasonable man that the prosecutor had no ground for proceeding but a desire to injure the accused. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).

Probable cause is that apparent state of facts which seems to exist after reasonable and proper inquiry. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947); 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).

While probable cause need not approach absolute certainty as to the facts, and it is not inconsistent with a considerable element of doubt, it must be more than mere conjecture or unfounded suspicion. Beyond this, the belief must be supported by appearances known to the defendant at the time, and a prosecution instituted without probable cause cannot be justified by anything, short of guilt in fact, which comes to the knowledge of the defendant later. The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify the defendant's information, when it appears to be reliable; but when a reasonable man would investigate further before beginning the prosecution, the defendant may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and the accused's opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).

Probable cause does not depend upon actual state of case in point of fact, but upon honest and reasonable belief of party commencing prosecution, and the reasonable and probable cause must appear to have existed in the party's mind at the time of the party's proceeding. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935); Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 163 S.E.2d 256 (1968).

All that is really required is honest belief, or strong ground of suspicion, of plaintiff's guilt, and a reasonable ground for the belief or suspicion, and that may be upon information from others as well as from personal knowledge. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935).

Causal deficiency in action for malicious prosecution exists when circumstances are such as to satisfy reasonable man that the defendant had no reasonable ground for proceeding except the defendant's desire to injure the person sued. Powell v. Cohen, 116 Ga. App. 48, 156 S.E.2d 495 (1967).

Probable cause existed for arrest for criminal trespass.

- 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 that 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).

Arrest based upon warrant which is void furnishes no basis for action for malicious prosecution. Lowe v. Turner, 115 Ga. App. 503, 154 S.E.2d 792 (1967).

Advice of counsel based on all facts.

- A prosecution instituted on the advice of the solicitor general, given after a full, fair and complete statement of the facts by the prosecutor, is a defense. Ventress v. Rosser, 73 Ga. 534 (1884); Baker v. Langley, 3 Ga. App. 751, 60 S.E. 371 (1908); Thornton v. Story, 24 Ga. App. 503, 101 S.E. 309 (1919).

Belief by prosecutors after full knowledge of the facts, that such facts constitute crimes when they do not, constitutes probable cause. West v. Baumgartner, 228 Ga. 671, 187 S.E.2d 665 (1972).

Although certainty of conviction not required.

- Under this section, it has been held that the prosecutor is not required to be fully satisfied with the truth of the charge, nor to guarantee a conviction. Rigdon v. Jordan, 81 Ga. 668, 7 S.E. 857 (1888).

Acting on advice of counsel not necessarily sufficient in itself to establish probable cause.

- While a defendant to an action for malicious prosecution may show that the defendant was acting on the advice of counsel in instituting the prosecution which is the basis of the action against the defendant, the mere fact that the defendant so acted on advice of counsel while it may go to the mitigation of the damages, is not sufficient as a matter of law to show that the defendant acted with probable cause. Fox v. J.W. Davis & Co., 55 Ga. 298 (1875); Peppas v. Miles, 82 Ga. App. 438, 61 S.E.2d 429 (1950).

Prior rulings of guilt in similar prosecutions show probable cause as matter of law. West v. Baumgartner, 228 Ga. 671, 187 S.E.2d 665 (1972).

Motive is immaterial when probable cause exists. Darnell v. Shirley, 31 Ga. App. 764, 122 S.E. 252 (1924).

This section is not exhaustive of all cases where lack of probable cause shall exist. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935).

Burden of showing absence of probable cause is on plaintiff. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936); Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947); Hight v. Steely, 86 Ga. App. 137, 70 S.E.2d 886 (1952); Morgan v. Mize, 118 Ga. App. 534, 164 S.E.2d 565 (1968); Patton v. Southern Bell Tel. & Tel. Co., 387 F.2d 360 (5th Cir. 1968); Ayala v. Sherrer, 135 Ga. App. 431, 218 S.E.2d 84 (1975).

The burden of proving the want of probable cause is on the plaintiff and the plaintiff does not in any reasonable sense carry this burden unless the plaintiff shows by the plaintiff's evidence that, under the facts as the facts appeared to the prosecutor at the time of the prosecution, the prosecutor could have had no reasonable grounds for believing the plaintiff to be guilty of the charge for which the plaintiff was prosecuted. Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967); Morgan v. Mize, 118 Ga. App. 534, 164 S.E.2d 565 (1968); 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); Smith v. Ragan, 140 Ga. App. 33, 230 S.E.2d 89 (1976); 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).

In an action to recover damages for an alleged malicious criminal prosecution, the plaintiff carries the burden of proving not only that such prosecution was maliciously carried on, but also that it was carried on without any probable cause. Hill v. Trend Carpet, 154 Ga. App. 446, 268 S.E.2d 682 (1980).

Plaintiff must prove damages.

- In an action for malicious use of legal process, the plaintiff must show that the plaintiff was arrested, the plaintiff's property seized under the process, or that the plaintiff suffered some special damage by reason of the suing out of the process. Haverty Furn. Co. v. Thompson, 46 Ga. App. 739, 169 S.E. 213 (1933).

Evidence of probable cause.

- All material evidence is admissible which tends on the one hand to prove or disprove the want of probable cause. McLaren v. Birdsong & Sledge, 24 Ga. 265 (1858).

Evidence of threat is admissible. Goggans v. Monroe, 31 Ga. 331 (1860).

Binding over of the defendant by the magistrate is prima facie, but not conclusive, evidence of probable cause. Lindsay v. West, 6 Ga. App. 284, 64 S.E. 1005 (1909); Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936).

The grand jury's return of an indictment against a potential plaintiff, the issuance of a warrant for the arrest of a plaintiff or the consultation of counsel before the securing of an arrest warrant for a plaintiff are all prima facie but not conclusive evidence that probable cause existed for the prosecution of the plaintiff. Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984).

It is not sufficient proof of lack of probable cause that grand jury returned no indictment, but it is a circumstance which the jury may consider in determining whether or not there was probable cause. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933).

If accused is convicted in trial court, such conviction, if not procured by fraud, is conclusive of probable cause, although the conviction may be set aside by the Supreme Court. Davis v. Gilbert, 67 Ga. App. 277, 19 S.E.2d 920 (1942).

Indictment by grand jury is prima facie evidence of probable cause. Darnell v. Shirley, 31 Ga. App. 764, 122 S.E. 252 (1924); Harris v. Gray, 58 Ga. App. 689, 199 S.E. 831 (1938); Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); Hill v. Trend Carpet, 154 Ga. App. 446, 268 S.E.2d 682 (1980); Rowe v. CSX Transp., Inc., 219 Ga. App. 380, 465 S.E.2d 476 (1995).

Probable cause established.

- When the trial judge, having heard all of the state's evidence, considers a motion on behalf of an accused and rules that the evidence is sufficient as a matter of law to support a conviction, such a holding suffices as to the existence of probable cause. Monroe v. Sigler, 256 Ga. 759, 353 S.E.2d 23 (1987); Allen v. Montgomery Ward & Co., 186 Ga. App. 337, 367 S.E.2d 120 (1988).

Evidence of abandonment of prosecution.

- The fact that the prosecution was abandoned, or that the person charged with a criminal offense has, upon the trial therefor, been acquitted, is not sufficient to prove want of probable cause. Stuckey v. Savannah, Fla. & W. Ry., 102 Ga. 782, 29 S.E. 920 (1898); Thornton v. Story, 24 Ga. App. 503, 101 S.E. 309 (1919).

Proof that the accused was discharged and acquitted, without a trial and upon a second demand therefor, because of the inability of the prosecutor to obtain the attendance of the witnesses relied upon to establish the charge, serves only to show that the prosecution terminated. Darnell v. Shirley, 31 Ga. App. 764, 122 S.E. 252 (1924).

Parol evidence.

- The defendant may show by parol evidence that the indictment was nol prossed because of a variance between the original charge and the offense charged by the indictment. O'Berry v. Davis, 31 Ga. App. 755, 121 S.E. 857 (1924).

Question of probable cause is mixed question of law and fact. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933); Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); Gibson's Prods. Co. v. McDaniel, 122 Ga. App. 264, 176 S.E.2d 548 (1970); American Plan Corp. v. Beckham, 125 Ga. App. 416, 188 S.E.2d 151 (1972); 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); Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).

Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury; but whether the circumstances amount to probable cause is a question of law for the court. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933); Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); American Plan Corp. v. Beckham, 125 Ga. App. 416, 188 S.E.2d 151 (1972).

Ordinarily, existence of probable cause is question for the jury, but when the material facts are not in dispute, the question becomes one of law for the court. Woodruff v. Doss, 20 Ga. App. 639, 93 S.E. 316 (1917); Morgan v. Mize, 118 Ga. App. 534, 164 S.E.2d 565 (1968); Abernathy v. Dover, 139 Ga. App. 323, 228 S.E.2d 359 (1976).

Under this section, probable cause is a question for the jury unless from undisputed facts it is obvious to the court that it does or does not exist. Harmon v. Redding, 135 Ga. App. 124, 218 S.E.2d 32 (1975); Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983).

Unless the facts regarding probable cause are undisputed, it is a question for the jury. Gantt v. Patient Communication Systems, 200 Ga. App. 35, 406 S.E.2d 796 (1991), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).

Want of probable cause is question for jury, under direction of court. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933); Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); American Plan Corp. v. Beckham, 125 Ga. App. 416, 188 S.E.2d 151 (1972); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); Smith v. Ragan, 140 Ga. App. 33, 230 S.E.2d 89 (1976); Williamson v. Alderman, 148 Ga. App. 297, 251 S.E.2d 153 (1978).

When the plaintiff introduces sufficient evidence to infer a want of probable cause, the case should be submitted to the jury on this point, provided there is sufficient evidence to carry the case to the jury on the question of malice. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Findings of jury generally binding on appellate court.

- The question of the existence of probable cause is ordinarily one of fact for the jury, and the finding of the jury as to questions of fact is conclusive on the appellate court when supported by evidence. Campbell v. Tatum, 71 Ga. App. 58, 30 S.E.2d 56 (1944).

This section does not mean that jury would be authorized to find want of probable cause without any evidence whatsoever to establish the fact. Spratlin v. Manufacturers Acceptance Corp., 105 Ga. App. 463, 125 S.E.2d 110 (1962).

Once facts are determined, whether the facts amount to probable cause is a question of law. Gibson's Prods. Co. v. McDaniel, 122 Ga. App. 264, 176 S.E.2d 548 (1970).

Question of probable cause becomes one of law when averments or proof are lacking or fail sufficiently to negative presumptions of law that probable cause existed. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936).

When material facts are not in dispute, the existence of probable cause is a question of law to be determined by the court. Sirmans v. Peterson, 42 Ga. App. 707, 157 S.E. 341 (1931); Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 190 S.E. 676 (1937); Spratlin v. Manufacturers Acceptance Corp., 105 Ga. App. 463, 125 S.E.2d 110 (1962); Fletcher v. Georgia Power Co., 117 Ga. App. 696, 161 S.E.2d 369 (1968); West v. Baumgartner, 228 Ga. 671, 187 S.E.2d 665 (1972); S.S. Kresge Co. v. Kicklighter, 135 Ga. App. 114, 217 S.E.2d 418 (1975); Ayala v. Sherrer, 135 Ga. App. 431, 218 S.E.2d 84 (1975); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); Abernathy v. Dover, 139 Ga. App. 323, 228 S.E.2d 359 (1976); Smith v. Ragan, 140 Ga. App. 33, 230 S.E.2d 89 (1976); Williamson v. Alderman, 148 Ga. App. 297, 251 S.E.2d 153 (1978); Kviten v. Nash, 150 Ga. App. 589, 258 S.E.2d 271 (1979); 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).

When it is clear from the evidence that the prosecutor did not have probable cause for prosecution of the plaintiff, a verdict for the defendant is demanded. Harris v. Gray, 58 Ga. App. 689, 199 S.E. 831 (1938); Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940); Gibson's Prods. Co. v. McDaniel, 122 Ga. App. 264, 176 S.E.2d 548 (1970); Ayala v. Sherrer, 135 Ga. App. 431, 218 S.E.2d 84 (1975); Hill v. Trend Carpet, 154 Ga. App. 446, 268 S.E.2d 682 (1980).

In suit for damages for alleged malicious prosecution, evidence will be closely scrutinized, and if it appears from that testimony which is uncontradicted, and which is neither incredible, impossible, or inherently improbable, that there were sufficient facts before the prosecutor in carrying on the prosecution, which would warrant a conclusion by the prosecutor, as a reasonable man, that the plaintiff was guilty of the offense charged, a verdict for the plaintiff will not be allowed to stand. 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).

Summary judgment improper.

- Trial court erred in granting summary judgment to a police officer in an arrestee's action alleging malicious prosecution because: (1) a question of fact remained as to whether the officer had probable cause to charge the arrestee with disorderly conduct; (2) the charge against the arrestee was pending for well over a year before the case was called in magistrate court; and (3) the fact that the party that first brought the charges later moved to dismiss them and that the trial court granted the motion did not alter the conclusion that for purposes of O.C.G.A. § 51-7-43, a "prosecution" occurred. Jones v. Warner, 301 Ga. App. 39, 686 S.E.2d 835 (2009).

Cited in Wilcox v. McKenzie, 75 Ga. 73 (1885); Brookshier v. Williams, 19 Ga. App. 685, 91 S.E. 1056 (1917); Norman v. Young, 35 Ga. App. 221, 132 S.E. 414 (1926); Jones v. Elsas, 46 Ga. App. 34, 166 S.E. 444 (1932); Johns v. Gibson, 60 Ga. App. 585, 4 S.E.2d 480 (1939); Sloan v. Glaze, 72 Ga. App. 415, 33 S.E.2d 846 (1945); Wall v. Spurlock, 85 Ga. App. 379, 69 S.E.2d 379 (1952); Timeplan Loan & Inv. Corp. v. Colbert, 108 Ga. App. 753, 134 S.E.2d 476 (1963); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978); Wilborn v. Elliott, 149 Ga. App. 541, 254 S.E.2d 755 (1979); Great Atl. & Pac. Tea Co. v. Burgess, 157 Ga. App. 632, 278 S.E.2d 174 (1981); Ferguson v. Atlantic Land & Dev. Corp., 248 Ga. 69, 281 S.E.2d 545 (1981); Nunnally v. Revco Disct. Drug Ctrs. of Ga., Inc., 170 Ga. App. 320, 316 S.E.2d 608 (1984); Rice v. Mansour, 176 Ga. App. 617, 337 S.E.2d 25 (1985); Abiodun v. Citizens & S. Nat'l Bank, 192 Ga. App. 159, 384 S.E.2d 248 (1989); White v. Atlanta Hous. Auth., 205 Ga. App. 574, 423 S.E.2d 40 (1992); Wal-Mart Stores, Inc. v. Blackford, 264 Ga. 612, 449 S.E.2d 293 (1994); Fleming v. U-Haul Co., 246 Ga. App. 681, 541 S.E.2d 75 (2000).

Alleged honest mistake not proof in itself of good faith.

- The fact that the defendant offered the excuse for suing out the proceedings that it was an honest mistake on its part, and that on discovery of the mistake it dismissed the proceedings, does not show, of itself, that the defendant acted in good faith and for justifiable ends, and does not show the existence of such facts and circumstances, although not amounting to probable cause, as were calculated to produce at the time in the mind of a prudent and reasonable person a well-grounded belief of the plaintiff's liability. Haverty Furn. Co. v. Thompson, 46 Ga. App. 739, 169 S.E. 213 (1933).

Binding over merely prima facie evidence of probable cause.

- The fact that the magistrate before whom the accused was brought when the accused was arrested upon a warrant bound the accused over to answer to the charge made in the warrant did not ipso facto establish that probable cause existed for making the affidavit and causing the warrant to be issued, but, at most, was only prima facie evidence, which could be rebutted either by direct or circumstantial evidence. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Prima facie evidence of intent.

- Prima facie evidence that probable cause existed was permissibly based on the magistrate's and trial court's determination of malice. Parks v. Norred & Assocs., 206 Ga. App. 494, 426 S.E.2d 12 (1992).

Corporations acting on advice of attorney.

- An action of malicious prosecution will lie against a corporation, but advice of its attorney may justify its action. Stuckey v. Savannah, Fla. & W. Ry., 102 Ga. 782, 29 S.E. 920 (1898).

Criminal prosecution of plaintiff motivated by defendant's desire to injure.

- Since the jury was authorized to find from the evidence that the plaintiff had quit working for the defendant once before because the defendant had refused to pay for amounts expended by the plaintiff in the settlement of claims to customers for damaged and lost laundry, and had returned to the defendant's employ only when persuaded to do so by promises of the defendant that the defendant would pay the plaintiff the sums so expended by the plaintiff, which promises the defendant failed to carry out, and when the jury was authorized to find that the defendant was indebted to the plaintiff at the time the plaintiff left the plaintiff's employment, but nevertheless stated he had rather see the plaintiff in the chain gang than have any money the plaintiff might owe the plaintiff, and was authorized to find that the criminal prosecution had terminated in favor of the plaintiff, the judge directing a verdict of not guilty on motion of the solicitor general, these facts and circumstances were sufficient to satisfy the jury as reasonable men that the defendant had no ground for proceeding against the plaintiff with the criminal prosecution but the defendant's desire to injure the plaintiff, and were sufficient to authorize the jury to find that the prosecution had been carried on by the defendant maliciously and without probable cause. Campbell v. Tatum, 71 Ga. App. 58, 30 S.E.2d 56 (1944).

Directed verdict error when contested issue as to whether prosecutor made good faith allegations.

- When the sole contested issue relates to whether or not the communications as made to the magistrate, on the faith of which one's advice was given, were made by the prosecutor in good faith, as the true and correct facts of the transaction, it is error to direct a verdict for the defendant. Martin v. Reitz, 152 Ga. App. 854, 264 S.E.2d 305 (1980).

Evidence that prosecutor acted to harass plaintiff presents jury question.

- When the prosecutor wrote the plaintiff in a suit for malicious prosecution that the prosecutor would swear out a warrant "causing a lot of embarrassment and an additional cost" if the plaintiff did not pay the demand, the obvious purpose was the collection of a debt, and was evidence of the want of probable cause which should be submitted to the jury. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Failure to account for trust money constitutes probable cause.

- After the plaintiff was entrusted with money by the defendant for which the plaintiff did not account, which was known to the defendant, this constituted probable cause for the prosecution of the plaintiff for the crime in connection with the stealing and conversion of the money. Harris v. Gray, 58 Ga. App. 689, 199 S.E. 831 (1938).

Evidence sufficient to prosecute for shoplifting.

- There was probable cause to prosecute a store customer for the offense of shoplifting after the customer removed a lipstick from its package, abandoned the empty package with the price tag, walked through the store for at least 20 minutes with the lipstick in the customer's hand, failed to return the lipstick to a nearby service desk as the customer left, and instead discarded the tube in a handbag on a rack where no employee would be likely to discover the lipstick and return it to its original package. K-Mart Corp. v. Coker, 261 Ga. 745, 410 S.E.2d 425 (1991).

Probable cause to charge theft by taking.

- Even though the plaintiff had been given temporary custody of the defendant employer's truck, the plaintiff's retention of the truck after the plaintiff was ordered to return the truck gave the employer probable cause to charge the plaintiff with theft by taking. Tate v. Holloway, 231 Ga. App. 831, 499 S.E.2d 72 (1998).

Evidence of lack of probable cause.

- Evidence that the defendant failed to make reasonable inquiry, failed to disclose material information, and falsified material information was sufficient basis for finding that the defendant instigated the prosecution and that there was no probable cause to arrest the plaintiff. Willis v. Brassell, 220 Ga. App. 348, 469 S.E.2d 733 (1996).

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).

Instituting suit after debt paid.

- When the defendant having admitted that the plaintiff had paid the mortgage debt in full, and that it was due to a mistake on its part that the proceedings were instituted against the plaintiff, by means of which it hoped to gain an unfair advantage of the plaintiff, the evidence authorized the jury to infer that the action was begun maliciously, there being a total want of probable cause. Haverty Furn. Co. v. Thompson, 46 Ga. App. 739, 169 S.E. 213 (1933).

When the plaintiff had purchased a rug from the defendant on credit and executed a chattel mortgage to secure the unpaid purchase money, and thereafter paid the chattel mortgage in full, receiving from the defendant its receipt in full; and thereafter the defendant instituted chattel mortgage foreclosure proceedings against the plaintiff in a justice's court, alleging a balance due on the purchase price of the rug and caused a levy on the rug to be made, this made a prima facie case of total want of probable cause. Haverty Furn. Co. v. Thompson, 46 Ga. App. 739, 169 S.E. 213 (1933).

Initiation of criminal action need not be expressly directed by party to be held liable. Martin v. Reitz, 152 Ga. App. 854, 264 S.E.2d 305 (1980).

Distinction must be taken between actually instigating criminal proceedings and merely laying information before law enforcement official without in any way attempting to influence the official's judgment. Martin v. Reitz, 152 Ga. App. 854, 264 S.E.2d 305 (1980).

Knowing use of false testimony creates probable cause for malicious prosecution.

- When one causes another to be criminally prosecuted by means of knowingly false testimony for an end personal to oneself (such as revenge, or in an effort to collect an unowed debt), this constitutes probable cause for malicious prosecution. Powell v. Cohen, 116 Ga. App. 48, 156 S.E.2d 495 (1967).

Probable cause based on facts alleged by reliable witnesses.

- When two witnesses, whom the testimony did not show were obviously unworthy of belief and whose statements did not appear upon their face to be false, detailed to the prosecutor, after warrant was taken for the plaintiff but before the plaintiff was arrested and required to give bond, facts which, if true, clearly showed the plaintiff guilty of the charge made against the plaintiff such facts alone were sufficient to show probable cause for the prosecution. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935).

Prosecutor must make fair and complete statement of facts.

- In order to later be insulated from liability because of the action of the magistrate in issuing the warrant in a malicious prosecution case, the defendant prosecutor must make a fair, full and complete statement of the facts as they exist. Martin v. Reitz, 152 Ga. App. 854, 264 S.E.2d 305 (1980).

Suit not necessarily without probable cause when fraud adequately alleged.

- Since the existence of fraud may be inferred from established facts, a suit to recover the value of merchandise obtained by the defendant from the plaintiff, when it was alleged in the petition that the defendant procured the merchandise fraudulently by falsely representing to the clerks in the plaintiff's store that the defendant had a charge account with the plaintiff, was not necessarily instituted and carried on without probable cause as to the existence of the fraud alleged, although the facts alleged may not in fact have constituted fraud. Harber v. Davison-Paxon Co., 46 Ga. App. 457, 167 S.E. 781 (1933).

Employer's fraud.

- While an employee's motion for directed verdict at a related criminal trial was denied, a jury could reasonably find that ruling was obtained by the fraud of the employer and the employee's supervisors who concealed exculpatory evidence resulting in a lack of probable cause for the employee's prosecution could be found. Wolf Camera, Inc. v. Royter, 253 Ga. App. 254, 558 S.E.2d 797 (2002).

Whether prosecutor exercised sufficient diligence to determine if conviction was possible is jury question.

- While a prosecutor need not be fully satisfied of the truth of the charge that the prosecutor makes in the prosecutor's affidavit, and the prosecutor is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless when slight diligence would have brought to the prosecutor's attention facts which would have shown conclusively that there could be no conviction, whether or not the prosecutor was guilty of malicious prosecution is a question of fact to be determined by the jury. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Statements made in good faith to police officers or others investigating criminal activity cannot be the basis of action for malicious prosecution. Moses v. Revco Disct. Drug Ctrs. of Ga., Inc., 164 Ga. App. 73, 296 S.E.2d 384 (1982), overruled on other grounds, 196 Ga. App. 463, 395 S.E.2d 867 (1990).

Detective believed children's testimony over teacher's testimony.

- 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 children, touching the children, and asking the children not to say anything about the actions. Marshall v. Browning, 310 Ga. App. 64, 712 S.E.2d 71 (2011).

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).

Am. Jur. 2d.

- 52 Am. Jur. 2d, Malicious Prosecution, § 50 et seq.

C.J.S.

- 54 C.J.S., Malicious Prosecution, § 29 et seq.

ALR.

- Institution of prosecution on false information without investigation as showing lack of probable cause, 5 A.L.R. 1688.

Malicious prosecution: acting on advice of justice of the peace, magistrate, or layman, 12 A.L.R. 1230.

Acquittal, discharge, or discontinuance as evidence of want of probable cause in action for malicious prosecution, 24 A.L.R. 261; 59 A.L.R.2d 1413.

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: possession of stolen property as probable cause, 172 A.L.R. 1340.

Reliance on advice of prosecution attorney as defense to malicious prosecution action, 10 A.L.R.2d 1215.

Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause, 14 A.L.R.2d 264.

Judgment in prior civil proceedings adverse to instant plaintiff in malicious prosecution as evidence of probable cause, 58 A.L.R.2d 1422.

Malicious prosecution: commitment, binding over, or holding for trial by examining magistrate or commissioner as evidence of probable cause, 68 A.L.R.2d 1168.

Conclusiveness, as evidence of probable cause in malicious prosecution action, of conviction as affected by the fact that it was reversed or set aside, 86 A.L.R.2d 1090.

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.

Malicious prosecution: effect of grand jury indictment on issue of probable cause, 28 A.L.R.3d 748.

Confession as defense in action for malicious prosecution, 66 A.L.R.3d 95.

Malicious prosecution: defense of acting on advice of justice of the peace, magistrate, or lay person, 48 A.L.R.4th 250.