DocketNumber: 43722
Citation Numbers: 163 S.E.2d 256, 118 Ga. App. 205
Judges: Bell
Filed Date: 7/16/1968
Status: Precedential
Modified Date: 1/12/2023
Court of Appeals of Georgia.
*206 Richard T. Cowan, Jerrell T. Hendrix, for appellant.
Conyers, Fendig, Dickey & Harris, J. Thomas Whelchel, for appellees.
BELL, Presiding Judge.
1. On motion for summary judgment, the movant has the burden of showing the absence of any genuine issue of material fact, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); International Brotherhood v. Newman, 116 Ga. App. 590, 592 (158 SE2d 298). The movant "has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence." Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672); 6 Moore's Federal Practice (2d Ed.) 2853, § 56.23.
In a suit for malicious prosecution, the gravamen of the action is the want of probable cause on the part of the person instituting the prosecution. Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 454 (5) (190 S.E. 676); Barber v. Addis, 113 Ga. App. 806 (1) (149 SE2d 833). "Probable cause does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution, and . . . the reasonable and probable cause must appear to have existed in his mind at the time of his proceeding." Auld v. *207 Colonial Stores, 76 Ga. App. 329, 335 (45 SE2d 827). Probable cause is that apparent state of facts existing after reasonable and proper inquiry; the prosecutor is under a duty of caution and avoidance of haste. Id.; Coleman v. Allen, 79 Ga. 637, 640-642 (5 S.E. 204, 11 ASR 449).
Viewed with liberal indulgence, the opposing affidavits, showing Lovitt ignored the information that the dolls had been paid for and that plaintiff's husband had a bill of sale for them, reveal an issue of fact as to whether a reasonably prudent man would have made further investigation before prosecuting. On the basis of the affidavits actually considered by the trial court it was error to grant summary judgment for defendants.
2. It is not necessary to decide whether the court erred in refusing to consider further opposing affidavits served on defendants on the day set for hearing. As to the time of filing see Code Ann. § 81A-156 (c) (Ga. L. 1966, pp. 609, 660, as amended).
Judgment reversed. Hall and Quillian, JJ., concur.
Holland v. Sanfax Corporation , 106 Ga. App. 1 ( 1962 )
International Brotherhood of Boilermakers v. Newman , 116 Ga. App. 590 ( 1967 )
K-Mart Corp. v. Coker , 261 Ga. 745 ( 1991 )
Day Realty Associates, Inc. v. McMillan , 247 Ga. 561 ( 1981 )
Nicholl v. Great Atlantic & Pacific Tea Co. , 238 Ga. App. 30 ( 1999 )
McMillan v. Day Realty Associates, Inc. , 156 Ga. App. 660 ( 1980 )
Gray v. Delta Air Lines, Inc. , 127 Ga. App. 45 ( 1972 )
Willis v. Brassell , 220 Ga. App. 348 ( 1996 )
Corporate Property Investors v. Milon , 249 Ga. App. 699 ( 2001 )
Standard Oil Company v. Harris , 120 Ga. App. 768 ( 1969 )
Thames v. Piedmont Life Insurance , 128 Ga. App. 630 ( 1973 )
Bryant v. Rucker , 121 Ga. App. 395 ( 1970 )
Brown v. JC Penney Co. , 123 Ga. App. 233 ( 1971 )
Hotel Storage, Inc. v. Fesler , 120 Ga. App. 672 ( 1969 )
Bi-Lo, Inc. v. Stanciel , 148 Ga. App. 614 ( 1979 )
Jackson v. National Life &C. Ins. Co. , 130 Ga. App. 208 ( 1973 )