Applicability to actions for malicious use of civil process.

- The provisions of this section, applicable to an action for malicious prosecution, also 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 "malice" contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest. Darnell v. Shirley, 31 Ga. App. 764, 122 S.E. 252 (1924).

Malice may be inferred from want of probable cause. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Although a jury cannot infer a lack of probable cause from malice, a jury is authorized to infer malice from a lack of probable cause. Kviten v. Nash, 150 Ga. App. 589, 258 S.E.2d 271 (1979).

Inasmuch as the jury was authorized to find a total want of probable cause for the prosecution of the plaintiff, the jury could properly infer from the want of probable cause the malice necessary to support the judgment for malicious prosecution. Great Atl. & Pac. Tea Co. v. Burgess, 157 Ga. App. 632, 278 S.E.2d 174 (1981).

Because the preliminary hearing dismissed the plaintiff's charge, the jury could properly infer malice. K-Mart Corp. v. Lovett, 241 Ga. App. 26, 525 S.E.2d 751 (1999).

In an action regarding the malicious prosecution of an employee for theft, the jury could infer malice from the lack of probable cause for the employee's prosecution shown by the employer's and supervisors' concealment of exculpatory evidence. Wolf Camera, Inc. v. Royter, 253 Ga. App. 254, 558 S.E.2d 797 (2002).

While want of probable cause is sometimes circumstance from which malice may be inferred, this is so only in cases when there is total want of such cause. 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).

Lack of probable cause not inferable from malice.

- Malice may be inferred from a total want of probable cause, but the lack of probable cause cannot be inferred from the existence of the most express malice. 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); Wilborn v. Elliott, 149 Ga. App. 541, 254 S.E.2d 755 (1979).

Malice may consist of general disregard of right and consideration of mankind, directed by chance against the individual injured. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Want of probable cause is question for jury, under direction of court. American Plan Corp. v. Beckham, 125 Ga. App. 416, 188 S.E.2d 151 (1972).

Question of probable cause is mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury; but whether they amount to probable cause is a question of law for the court. American Plan Corp. v. Beckham, 125 Ga. App. 416, 188 S.E.2d 151 (1972).

Probable cause defined.

- Probable cause is totally absent in a malicious prosecution or false arrest action when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused. Lolmaugh v. T.O.C. Retail, Inc., 210 Ga. App. 605, 436 S.E.2d 708 (1993).

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).

Some evidence of possible guilt negates finding of malice.

- 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, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution to recover. 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).

Admission of evidence of sufficient funds to show malice in prosecution for passing bad checks.

- When one who had sufficient funds on deposit in a bank to pay a check drawn against the account if presented promptly, was prosecuted for the offense of violating the bad check laws and acquitted, and then brings an action against the prosecutor for malicious prosecution, and offers in evidence a check, proffered in settlement of the civil liability after the prosecution was begun but before it ended, such check is admissible in evidence for the purpose of throwing light on the question of whether or not there was malice on the part of the prosecutor, for whatever probative value the jury might see fit to give it. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

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).

Directed verdict proper when evidence indicates no malice.

- When there is no evidence whatever of any fraudulent conduct or improper motive on the part of the prosecutor, or of any other person dealing with the criminal prosecution, and it appears from the uncontradicted evidence that the accused was bound over by the magistrates who presided at the preliminary hearing on the warrant, that the accused was subsequently indicted by the grand jury investigating it, and that there were some slight circumstances pointing to the accused's guilt, though not enough to exclude every other reasonable hypothesis, a finding that the prosecution was malicious is without any evidence to support it; in such a case the direction of a verdict for the defendant would be in order. Brown v. Scott, 151 Ga. App. 366, 259 S.E.2d 642 (1979).

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 the defendant's 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).

After 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 the 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).

Prosecutor's knowledge that defendant is not guilty.

- The fact that the prosecutor continued with the prosecution after the prosecutor knew that the accused was not guilty of the offense charged, and the prosecutor's other conduct, raised an inference of fact that the prosecutor acted with a malicious design. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

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 prosectuor'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).

When the prosecutor by the use of slight diligence could have known there was no probable cause for making an affidavit forming the basis of a criminal prosecution, circumstances raised a question of fact to be passed upon by the jury, since malice may be inferred from the facts and circumstances of a case. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

When announced object of criminal prosecution is to embarrass accused and put the accused to additional cost if certain payment is not made, malice may be inferred, and when there is a want of probable cause of the guilt of the accused, such object within itself raised a question of fact to be passed upon by the jury; it may be inferred from this effort to collect a debt that the criminal prosecution was maliciously carried on, and a jury would be authorized so to find. Auld v. Colonial Stores, Inc., 76 Ga. App. 329, 45 S.E.2d 827 (1947).

Agent failed to conduct reasonable inquiry.

- 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).

Cited in Johns v. Gibson, 60 Ga. App. 585, 4 S.E.2d 480 (1939); Wall v. Spurlock, 85 Ga. App. 379, 69 S.E.2d 379 (1952); Progressive Life Ins. Co. v. Doster, 98 Ga. App. 641, 106 S.E.2d 307 (1958); Crawford v. Theo, 112 Ga. App. 83, 143 S.E.2d 750 (1965); 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); McMillan v. Day Realty Assocs., 159 Ga. App. 366, 283 S.E.2d 298 (1981); Medoc Corp. v. Keel, 166 Ga. App. 615, 305 S.E.2d 134 (1983); Rowe v. CSX Transp., Inc., 219 Ga. App. 380, 465 S.E.2d 476 (1995).

Am. Jur. 2d.

- 52 Am. Jur. 2d, Malicious Prosecution, § 45 et seq.

C.J.S.

- 54 C.J.S., Malicious Prosecution, § 45 et seq.

ALR.

- Actual belief on part of prosecutor as element of probable cause in action for malicious prosecution, 65 A.L.R. 225.