I concur in the judgment of affirmance, and in the main agree to what is said in the majority opinion; but under the facts and circumstances of the present case I think the following may appropriately be said: The present suit is based on the alleged malicious use of legal process in the institution of a bail-trover action for the recovery of a certain automobile. "Malicious use of legal process is where a plaintiff in a civil proceeding employs *Page 521 the court's process in order to execute the object which the law intends for such a process to subserve, but proceeds maliciously and without probable cause." McElreath v. Gross, 23 Ga. App. 287 (98 S.E. 190). It is well settled law that before there can be a recovery in such an action three essential elements must appear: (1) malice, (2) want of probable cause, and (3) the termination of the proceeding complained of in favor of the defendant. Malice and want of probable cause must concur; if either is absent there can be no recovery. "Malice may be inferred from the total want of probable cause; but a total want of probable cause can not be inferred from the existence of the most express malice." Marable v. Mayer, 78 Ga. 710 (3 S.E. 429). "Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." Hartshorn v. Smith, 104 Ga. 235,239 (30 S.E. 666). The essential elements in a cause of action for the malicious prosecution of a criminal case and the malicious use of process in a civil suit are the same. Wilcox v. McKenzie, 75 Ga. 73; Woodley v. Coker, 119 Ga. 226,228 (46 S.E. 89). Probable cause, as shown by the authorities, is the knowledge or state of facts which would authorize a reasonable person to believe that he has ground for doing a given act. The present case is based on the trover action, and the main question involved is whether the C. I. T. Corporation had probable cause for instituting that suit. The trover action was for the recovery of a certain automobile, sold under a retention-title contract which contained an insecurity clause. That case, C. I. T. Corporation v. Smith, was first here on an exception to the grant of a nonsuit, and the decision of this court is reported in 56 Ga. App. 544 (193 S.E. 261). The substance of the evidence was there set out, and it was held in the second division of the opinion: "The retention-title contract provided: `Said property will be kept at the following address, 500 Charlton Road, Rome, Ga. . . If any installment is not paid in full when due, or if purchaser fails to perform any of his obligations or to comply with any condition of this contract, or if the holder hereof shall deem itself insecure, the full amount unpaid hereunder, including any note given, shall without notice become due and payable forthwith.' The insecurity provision in this contract *Page 522 is valid and enforceable. 55 C. J. 1286, § 1311 (3). Under the facts and circumstances of this case the jury would have been authorized to find that the plaintiff acted in good faith in deeming itself insecure and in bringing its trover action under the insecurity clause of the contract."
The second trial of that case resulted in a verdict for the defendant, and the decision of this court affirming the same appears in 61 Ga. App. 882 (8 S.E.2d 402). It was said in that decision, among other things, that "The evidence on the second trial was substantially the same as that on the first," and that "Under the law and the evidence the jury could have inferred that the plaintiff, in attempting to exercise its right under the insecurity clause of the contract, did not act in good faith." These two decisions speak for themselves, and it is not deemed necessary to quote further therefrom. If, in view of the decision of the present malicious use of civil process case when it was here on demurrer (Smith v. C. I. T. Corporation,66 Ga. App. 851, 19 S.E.2d 206), it can not now be said that the first decision of this court in the trover suit (56 Ga. App. 544, supra) was an adjudication of good faith or probable cause on the part of the C. I. T. Corporation in bringing the trover case, it can properly be said that the import of the two decisions in the trover suit, 56 Ga. App. 544 and 61 Ga. App. 882, supra, is that it was a question for the jury to determine, under the facts and circumstances, whether the plaintiff acted in good faith in the institution of the trover action. This means that a verdict could properly have been rendered in favor of either party. In these circumstances it could not be said that the plaintiff acted with malice and without probable cause in the institution of the trover action although it terminated in a verdict in favor of the defendant therein. In Hallman v.Ozburn, 38 Ga. App. 514 (144 S.E. 344), which was a case for malicious use of legal process, it was ruled: "In such a proceeding, while it is necessary that it shall appear that the previous litigation has finally terminated against the plaintiff therein, this fact, while generally sufficient to indicate where the preponderance of the evidence lies, furnishes no proof or presumption that the former proceeding was instituted maliciously or without probable cause (Farrar Lumber Co. v. Hogan,25 Ga. App. 597, 103 S.E. 863); and this is the gist of the action. It is not the policy of the law to give rise *Page 523 to a cause of action based on the malicious use of legal process merely because the plaintiff loses his case; if this were the rule, `the end of the action would be merely the beginning of litigation.' Porter v. Johnson, 96 Ga. 145, 148 (23 S.E. 123)."
If the facts and circumstances were such at the time the trover action was instituted to authorize the plaintiff as a reasonable person to believe that it had reasonable ground for deeming itself insecure under the provisions of the retention-title contract, then there can be no recovery for the plaintiff in the present case. This court has ruled that the insecurity clause in the contract is valid, and that the facts and circumstances were sufficient to authorize a jury to find that the plaintiff acted in good faith in deeming itself insecure and in bringing the trover action under the contract. If, under the evidence, a jury would have been authorized to so conclude in favor of the plaintiff, then certainly the facts and circumstances as disclosed in the trover suit were such as to authorize the plaintiff as a reasonable person to believe it had ground to institute the action. In the present case the petition alleged that a nonsuit was granted on the first trial of the bail-trover action, and that upon a writ of error to this court that judgment was reversed; that the second trial resulted in a verdict and judgment in favor of the defendant; that that judgment was affirmed by this court, and that the case terminated in favor of the defendant. These allegations were admitted by the defendant's answer. The two decisions of this court in the trover case, C. I. T. Corporation v. Smith, 56 Ga. App. 544, andC. I. T. Corporation v. Smith, 61 Ga. App. 882, supra, were cited and called to the attention of this court by counsel for the plaintiff in error in his brief. "As a general rule courts do not in one case take judicial notice of their own records in other cases, even though the trial judge in fact knows or remembers the contents thereof, or even though the parties are the same. At least the court can not be required or expected to take such notice. This general rule, however, is not an inflexible one and has several exceptions. The fact that such exceptions exist indicates that the rule is not based on lack of power but is a rule of expediency, to be applied or refused application as the equities and justice of the case require. It has also been indicated that a broad restriction of the power to take judicial notice of its own records is not well suited to the conduct of the business of an appellate *Page 524 court. Consequently, in the exercise of their discretion, at least where such records are properly called to their attention, for one purpose or another courts have frequently taken notice of their records in other cases, and it has been held that courts may notice, from their records, the cases brought to them and the disposition thereof. Also a court may take judicial notice of, and give effect to, its own records in another, but interrelated proceeding, particularly where the issues and parties are the same or practically the same." 31 C. J. S. 623, § 50 c. The two decisions of this court in the trover case are part of the records of this court, of which we can take judicial notice. It was held in Sabol v. St. Louis Cooperage Co. (Mo.) 31 S.W.2d 1041, that the "Supreme Court judicially noticing former opinion has before it, not only law therein decided, but facts stated in opinion as basis therefor."
Under the law and the facts and circumstances of this case the court did not err in granting a nonsuit.