Duckett & Co. v. Ozmer

172 S.E. 118, 48 Ga. App. 41, 1933 Ga. App. LEXIS 449

• Court: Court of Appeals of Georgia
• Decided: November 18, 1933
• Docket: 23219, 23292
• Status: Published

Opinion

Broyles, C. J.

The petition in this ease contained three counts, the first a suit for malicious prosecution, the second for false imprisonment, and the third for malicious arrest. The first and the third counts, properly construed (most strongly against the plaintiff), failed to show that in the matters complained of the defendant acted with malice and without probable cause; the allegations in the two counts that it did so act not being supported by the pleaded facts. Therefore these two counts were properly stricken on general demurrer. However, the second count (suing for false imprisonment) set out a cause of action, and the court properly overruled the general demurrer thereto. To sustain an action for false imprisonment, it is not necessary to show malice and want of probable cause. Westberry v. Clanton, 136 Ga. 795 (3, 4) (72 S. E. 238) ; Waters v. National Woolen Mills, 142 Ga. 133, 136 (82 S. E. 535); Wyatt v. Baker, 41 Ga. App. 750, 752 (154 S. E. 816).

Judgment affirmed on both bills of exceptions.

MacIntyre and Guerry, JJ., concur in the judgment on the maim bill of exceptions. Guerry, J., dissents from the judgment on the cross-bill.