In an action for damages for an alleged malicious criminal prosecution, the court did not err in overruling the defendant's motion for a new trial after verdict and judgment in favor of the plaintiff, where the jury was authorized by the evidence to find that the defendant had maliciously and without probable cause carried on a criminal prosecution against the plaintiff, and injured him; and that the criminal prosecution had terminated in favor of the plaintiff before the action for damages was brought.
The plaintiff in error contends that the evidence demanded a finding that he had probable cause for initiating the warrant and prosecuting the case, and that the verdict against him is contrary to law because it is without evidence to support it. The plaintiff's cause of action is founded on the following provisions of the Code, § 105-801; "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." "In an action for damages for an alleged malicious criminal prosecution, the controlling issues are (1) whether the prosecution was carried on maliciously, and (2) whether it was carried on without any probable cause." O'Berry v. Davis,31 Ga. App. 755 (121 S.E. 857). It is well-settled law that to support an action for malicious prosecution there must be a concurrence of malice and want of probable cause. Cook v.Walker, 30 Ga. 519; Coleman v. Allen, 79 Ga. 637 (5 S.E. 204, 11 Am. St. R. 449); Davis v. Stephens, *Page 61 45 Ga. App. 227 (5) (164 S.E. 111). Under the facts and circumstances of this case, including the statements made by the defendant, according to the evidence for the plaintiff, the jury was authorized to find that the prosecution was maliciously carried on by the defendant.
We will now consider the question whether or not the evidence was sufficient to authorize the jury to find that the defendant acted without probable cause in prosecuting the plaintiff. "Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." Code, § 105-802. As stated in the Code section, the question of the existence of probable cause is ordinarily one of fact for the jury. Fox v. Davis, 55 Ga. 298; Anderson v. Keller,67 Ga. 58; Ventress v. Rosser, 73 Ga. 534; Stewart v.Mulligan, 11 Ga. App. 660 (75 S.E. 991); Thornton v.Story, 24 Ga. App. 503 (101 S.E. 309). And the finding of the jury as to questions of fact is conclusive on this court, where supported by evidence. Where the jury was authorized to find from the evidence that the plaintiff had quit working for the defendant one time before the time in question because the defendant had failed and refused to pay him for amounts expended by him to customers in settlement of claims for damaged and lost articles of clothing and laundry, and had returned to his employment with the defendant only when persuaded to do so by promises of the defendant that he would repay him the sums so expended by him, which promises the defendant failed to carry out; and where the jury was authorized to find that the defendant was indebted to the plaintiff at the time the plaintiff left his employment, but nevertheless stated he had rather see the plaintiff in the chain-gang than have any money the plaintiff might owe him, and had told the plaintiff's wife, when she went to see him about the account between the defendant and her husband, that he had rather see the plaintiff in jail first; that the criminal prosecution had terminated in favor of the plaintiff; and that on the trial of the plaintiff in the criminal case in the superior court, the judge, on motion of the solicitor-general, had directed a verdict of not guilty, because there was no evidence to authorize the jury to find the plaintiff guilty of the charge made by the indictment; — these facts and circumstances were sufficient to satisfy the jury as reasonable men that *Page 62 the defendant had no ground for proceeding against the plaintiff with the criminal prosecution but his desire to injure him, and were sufficient to authorize the jury to find that the prosecution had been carried on by the defendant maliciously and without probable cause. See Barge v. Weems, 109 Ga. 685 (35 S.E. 65); Hearn v. Batchelor, 47 Ga. App. 213 (170 S.E. 203); Duren v. Clark, 47 Ga. App. 429 (170 S.E. 693). The case of Darnell v. Shirley, 31 Ga. App. 764 (122 S.E. 252), cited by the plaintiff in error, is distinguishable on its facts from the present case, for in that case the court found that there was no evidence whatever of any fraudulent conduct or improper motive on the part of the prosecutor, while in the case at bar, there was evidence to support the finding of the jury that the defendant had no ground for proceeding against the plaintiff but a desire to injure him.
The issues of the case were fairly and fully presented to the jury; its verdict in favor of the plaintiff is supported by evidence, and no error of law appears. It follows, therefore, that the court did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. Parker, J., concurs.