Howell v. Cantley

Jenkins, P. J.

1. In a suit for damages for malicious prosecution the jury returned a verdict in favor of the plaintiff for $500. The charge of the court contained this instruction: “ Should you find, from the evidence, that any witness or witnesses testifying in the case have been impeached upon satisfactory proof in disproving any given state of facts material to the issue of the case testified to by him, or by proof of general bad character, the jury ought to disregard the evidence of that witness or witnesses in its entirety, unless the jury should find that such witness or witnesses have been corroborated by other competent and creditable witnesses, or by circumstances corroborating the witness testifying.” Such instruction with reference to iihpeachment by proof of bad character was error, and was not cured by other language. Henrich v. McCauley, 151 Ga. 138, 139 (106 S. E. 94); Waycaster v. State, 136 Ga. 95 (70 S. E. 883); Henderson v. Cook, 27 Ga. App. 512 (108 S. E. 904).

2. The defendant in his plea having set up not only that he had probable and reasonable cause for charging the plaintiff with the alleged offense, but that the plaintiff had actually committed the offense, and having introduced evidence to support this plea, it was error for the court, while charging the contention and legal rules as to malice, good faith, and probable and reasonable cause, to fail to charge this contention and the law applicable thereto. Henderson v. Francis, 75 Ga. 178 (5); Chattanooga &c. R. Co. v. Voils, 113 Ga. 361, 362 (38 S. E. 819); Pusser v. Thompson, 147 Ga. 60 (92 S. E. 866).

Decided June 14, 1922.

Action for malicious prosecution; from city court of Bainbridge — Judge Spooner. August 26, 1921,

M. E. O’Neal, Pope & Bennet, for plaintiff in error. T. S. Hawes, contra.

3. The grounds of the motion for new trial not dealt with above are without merit, or present questions unlikely to recur in a succeeding-trial. Judgment reversed.

Stephens and Hill, JJ., concur.