Ventress v. Rosser , 73 Ga. 534 ( 1884 )

Hall, Justice.

' The declaration in this case set forth the wrongs complained of in three counts, one for malicious prosecution, one for slander, and one for malicious arrest. The defendant filed a special plea, in which he alleged specifically and' with minute particularity the circumstances from which-the existence of probable cause for the prosecution and arrest might be inferred, and denied any malice in instituting the one or causing the other to be made. This plea-admitted the alleged injuries modo etforma, and justified the conduct imputed to the defendant. This is at least true as to the charges of malicious prosecution and arrest, and we think it likewise true as to the charge of slander. All these charges were founded upon one and the same transaction. The declaration sufficiently shows, as does the evidence had on the trial, that the alleged slanderous charge was made in the performance of a public as well as a private duty, both legal and moral; and the jury by their verdicts have found that it was made bona fide; it was therefore a privileged communication. Code, §2980. No plea of the general issue was filed or insisted upon. There is a singularly inappropriate plea sent up in the record, alleging that defendant was not indebted, and did not undertake or promise in manner and form as charged by the plaintiff. Under the instructions of the court, the jury found for the defendant. The plaintiff moved for a-new trial upon various grounds, which was overruled.

1. We are of opinion that the verdict was proper; it was not necessary to specify upon which one of the three alleged pleas it was found ; there was, in fact, but a single plea filed in the case; the trial was had upon this plea only. The first plea amounted to nothing; it was not the general issue in a case of this character; what is called the third plea is only an'amendment and enlargement of the plea originally filed, justifying the defendant’s conduct; that it was a sufficient plea as amended, see 69 Ga., 251, 257 et seq. Even if there had been more than one plea, it is not clear but that the plaintiff should have asked that the jury, when they returned the verdict, be remanded and required to state upon which of these pleas it was found, 66 Ga., 521; 64 Id., 662; 62 Id., 757. No such demand was made, and no excuse was rendered for its omission. This disposes of so much of the ground of the motion as relates to the error charged to exist in the form of the verdict.

2. It is insisted in the 4th ground of the motion that the court erred in admitting the testimony of Ozier, one of defendant’s counsel, and of Hudson, the solicitor general of the .circuit, in relation to advising the prosecution, upon the statement made by defendant to them, which was substantially the same as that sworn to by him on the trial, and also in allowing the defendant to testify as to all matters contained in the brief of evidence going to show by his acts and declarations that he acted without malice and without want of probable cause, after filing the plea of justification and after taking the opening and conclusion of the argument.

It does not appear from the record that any objection was made to this testimony when offered, and we must in fairness presume that none was in fact made; this of itself would be sufficient to dispose of this ground of the motion for a new trial. Independently of this, however, we can perceive no possible objection to this evidence. To have rejected it for the reasons assigned in this motion would have been to deprive the defendant of the only means of making good the facts set forth in his special plea and of making that plea available or of any value to him.

3. The 5th and 6th grounds of the motion set forth that the court erred in his charge to the jury (after the plea of' justification) that the onus was on the plaintiff to show, before he could recover, a prosecution with malice and without probable cause; that he should have charged, “ that when the defendant filed and relied upon his plea fo j ustification, the onus was upon him to prove the charge set up in the declaration; with reasonable certainty, and that a failure to do so would entitle the plaintiff-to a verdict.”

The prosecution and arrest and the charge leading to them, and which was a part of each of them, must have been made without probable cause and with malice. Malice may be inferred from a total want of probable cause, though such want of probable cause cannot be inferred from malice. The inference arising from a total want of probable cause may be rebutted by proof. The want of such probable cause is a question for the jury, under the direction of the court, and exists only when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding, but a desire to injure the accused. Code, §§2982, 2983, 2987. As to malicious arrest, Id., §2995. This action is strictly guarded, and the circumstances under which it may be maintained are accurately stated; it is never encouraged, except in plain cases; were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law and to discharge his duty to society, with the prospect of an annoying suit staring him in the face.

The jury should not have been charged, as they were not, that it was incumbent upon the defendant to disprove the truth of the charge as set forth in plaintiff’s declaration. He tendered no such issue by his plea; he undertook to establish that he acted with probable cause and without malice in making the accusation and causing the arrest.

In the clear and able exposition of the law made by the judge’s charge, which is in the record, this issue was fairly and fully presented, and the consequences of a failure to establish the facts set forth in the plea, by proof sufficient to satisfy the minds of the jury to a reasonable certainty, were distinctly specified. There was no material error, if any at all, in this charge, and we have shown that there was none in the several rulings of the court complained of. The evidence to sustain the verdict was sufficient. The judge who tried the case was satisfied with it, and we cannot say that there was error in refusing to set it aside and to grant a new trial.

Judgment affirmed.