Davis v. Gilbert , 67 Ga. App. 277 ( 1942 )

The court did not err in sustaining the general demurrer, and in dismissing the action.

DECIDED APRIL 14, 1942. The facts of the case, as shown in the allegations of the petition, are in substance as follows: Plaintiff contracted to erect a house for defendant in Dalton. During the progress of the work defendant made certain advances on the contract price to plaintiff. A dispute arose as to the balance due plaintiff, plaintiff claiming a balance of over $100 and defendant claiming that nothing was due. A materialism foreclosed a lien against the property of defendant, whereupon defendant swore out a warrant charging cheating and swindling to plaintiff. Plaintiff was indicated and convicted. On refusal of his bondsmen to continue his bond, during pendency of a motion for new trial, plaintiff was placed in jail and remained there from September 4, 1940, to October 19, 1940, being unable to make bond. The petition further alleged that the prosecution was malicious and without probable cause; that plaintiff did not owe anything and that defendant knew it; that defendant kept him from securing bond by advertising him as a cheat and a swindler, and damaged him in the sum of $5000.

The defendant filed general and special demurrers. The court overruled the special demurrer, sustained the general demurrer, and dismissed the petition. The plaintiff excepted. The petition, construed as a whole, is one brought for damages for malicious prosecution. It has been held by this court in Clark v. Douglas, 6 Ga. App. 489 (65 S.E. 304), that four elements are necessary in the tort action of malicious prosecution: (1) that the prosecution has terminated in favor of the plaintiff; (2) that the prosecution was instituted maliciously; (3) that it was brought without probable cause; and (4) that it has caused the plaintiff damage. By reference to the allegations of the petition as above summarized it will be noted that the prosecution did not terminate in favor of the plaintiff. The petition shows that after warrant was sworn out against him by the defendant he was indicted and convicted. As to the third element, that the prosecution was instituted without probable cause, it was held in Hartshorn v.Smith, 104 Ga. 235 (30 S.E. 666): "If in such case the accused be convicted in the trial court, such conviction, if not procured by fraud, is conclusive of probable cause, although the same on writ of error may be set aside by the Supreme Court." InDarnell v. Shirley, 31 Ga. App. 764 (4) (122 S.E. 252), this court held: "Want of probable cause is the gravamen of an action for malicious prosecution; and there can be no recovery by the plaintiff where there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives."

Construing the petition most strongly against the pleader, there is no specific and definite allegation that the conviction was obtained by fraud. It is true that the petition contains certain loose general averments that the defendant obtained the conviction of the plaintiff in error when she knew that he was not guilty; however, these general averments are insufficient, as a matter of law, for the court to hold that the conviction was obtained by fraud. In view of these authorities the court did not err in sustaining the general demurrer.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.