Gibson's Products Co. of Albany, Inc. v. McDaniel ( 1970 )

Hall, Presiding Judge.

Defendant in an action for malicious prosecution appeals from the judgment and from the denial of its motion for judgment n.o.v.

Argued March 4, 1970 Decided June 30, 1970 Rehearing denied July 24, 1970 Smith, Gardner, Wiggins, Geer & Brimberry, Watson, Keenan, Spence & Lowe, G. Stuart Watson, for appellant.

Plaintiff was employed by defendant as an outside salesman and cashier. Defendant suspected plaintiff of responsibility for shortages in the cash receipts and therefore set a "trap.” The evidence is undisputed that another employee made a purchase from plaintiff, that plaintiff was given the exact amount of the purchase ($3.47), that he did not ring it up on the cash register, and that the register was short by 19 cents for the day. Defendant swore out a warrant against plaintiff for larceny after trust. Plaintiff was acquitted and brought this action for malicious prosecution.

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. Tanner-Brice Co. v. Barrs, 55 Ga. App. 453 (190 SE 676); Hartshome v. Smith, 104 Ga. 235 (1) (30 SE 666). The question of probable cause is a mixed one of law and fact. Once the facts are determined, whether they amount to probable cause is a question of law. Hicks v. Brantley, 102 Ga. 264 (29 SE 459). "Where it is clear from the evidence that the prosecutor did have probable cause for the prosecution of the plaintiff, a verdict for the defendant is demanded.” Morgan v. Mize, 118 Ga. App. 534 (2 b) (164 SE2d 565).

The undisputed facts here demand a finding that defendant had probable cause to believe plaintiff had taken the money. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 8 (182 SE 61); Auld v. Colonial Stores, 76 Ga. App. 329, 335 (45 SE2d 827); Godwin v. Gibson’s Products Co., 121 Ga. App. 59 (172 SE2d 467); Turner v. Bogle, 115 Ga. App. 710 (155 SE2d 667).

The trial court erred in refusing to enter judgment n.o.v. for defendant.

Judgment reversed.

Bell, C. J., Jordan, P. J., Eberhardt, Pannell, Deen, Quillian and Whitman, JJ., concur. Evans, J., dissents. BuH & Burt, Donald D. Rentz, for appellee.