The reversal by this court of a nonsuit in a trover action did not adjudicate the question whether or not the trover action was instituted without malice and with probable cause, under the facts. The court erred in dismissing an action for malicious use of process against the plaintiff in the trover action, on the theory that the good faith of the plaintiff had been adjudicated.
DECIDED FEBRUARY 28, 1942. REHEARING DENIED MARCH 17, 1942. W. O. Smith sued the C. I. T. Corporation alleging damages to him arising out of the institution of a bail-trover action against him alleged to have been sued out wilfully, maliciously, and without legal right or reason, which trover action had terminated in favor of the plaintiff. The judge sustained a general demurrer to the petition. Smith excepted.
The question involved in the trover action was whether the corporation acted in good faith in deeming itself insecure under the terms of a conditional-sale contract executed by Smith. C.I. T. Corporation v. Smith, 56 Ga. App. 544 (193 S.E. 261). In that case the court reversed the award of a nonsuit. The trial judge in this case sustained the general demurrer on the ground that the reversal of the nonsuit was an adjudication that the corporation declared itself insecure without malice and with probable cause. The judge erred in so ruling. When the trover action was tried it resulted in a verdict for Smith and the judgment was affirmed by this court. C. I. T. Corporation v.Smith, 61 Ga. App. 882 (8 S.E.2d 402). If the first decision was an adjudication of good faith and probable cause, the second judgment could not properly have been rendered. The import of the ruling in the first case was simply that a jury could have found that the C. I. T. Corporation acted without malice and with probable cause if it had the facts as proved by the corporation and none other. It was not an adjudication that the corporation acted without malice and with probable cause under all the facts and circumstances as presented by both sides. Both the trial court and this court decided that it did not so act in view of all the facts in the case. The following cases are not authority to the contrary: McElreath v. Gross, 23 Ga. App. 287,289 (98 S.E. 190); Marshall v. Armour FertilizerWorks, 24 Ga. App. 402 (5) (100 S.E. 766); Short v.Spragins, 104 Ga. 628 (30 S.E. 810); Georgia Loan TrustCo. v. Johnston, 116 Ga. 628 (43 S.E. 27). The court erred in sustaining the general demurrer.
Judgment reversed. Stephens, P. J., concurs.