Abernathy v. Dover

Annotate this Case

139 Ga. App. 323 (1976)

228 S.E.2d 359



Court of Appeals of Georgia.

Submitted July 13, 1976.

Decided July 15, 1976.

*324 William G. Hasty, Jr., Thomas A. Roach, for appellant.

Smith, Shaw, Maddox, Davidson & Graham, William E. Davidson, Jr., for appellee.

BELL, Chief Judge.

This is a malicious prosecution suit in which the defendants' motion for summary judgment was granted. The plaintiff appeals. Held:

The issue in this type of action is the lack of probable cause on the part of the prosecution. Morgan v. Mize, 118 Ga. App. 534 (164 SE2d 565). Ordinarily the existence of probable cause is a jury question. Code ยง 105-802. But, where the material facts are not in dispute or only one inference can be drawn, the question becomes one of law. Johns v. Gibson, 60 Ga. App. 585 (4 SE2d 480). An employee of the defendants, operators of a grocery store, cashed a check made payable to Irene Abernathy for a person holding herself out as Abernathy and who established her purported identity to the employee by means of a North Carolina driver's license. The check was returned by the drawee bank unpaid because of the nonexistence of an account in the name of the drawer. One of the defendants swore out a warrant for the arrest of plaintiff. This criminal case was later dismissed by the superior court because of a lack of evidence. Applying the above rules to these undisputed facts, we affirm the grant of judgment to defendants as the evidence and inferences to be drawn demand the conclusion that defendants had probable cause to believe that plaintiff had committed forgery in the first degree.

Judgment affirmed. Clark and Stolz, JJ., concur.