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Tort; malicious prosecution. Before Judge Tye. Fulton Superior Court. December 28, 1956.
The trial judge did not err in denying the motion for a new trial.
Samuel Willis brought an action, in Fulton Superior Court, against James Henry for malicious prosecution. The petition alleged that: Henry maliciously swore out a warrant against Willis in which he accused him of stealing one pair of eyeglasses, one plane, one paint brush, one hammer, and two pinch bars; Willis was tried and found not guilty of these charges; Willis then brought a suit against Henry in which he recovered $127.00 wages which were due him. The jury gave a verdict for the defendant. The plaintiff's motion for new trial was denied and he excepts.
1. In the plaintiff's argument of the general grounds he insists that the defendant was impeached because of contradictory statements he made in reference to the amount of money he had paid the plaintiff for his labors, and therefore there was no evidence to support the verdict. While it may be true that the witness was impeached as to this portion of his testimony, this would not prevent the jury from believing the remainder of his testimony. Purvis v. Atlanta Northern Ry. Co., 136 Ga. 852 (2) (72 S. E. 343); Haywood v. State, 114 Ga. 111 (1) (39 S. E. 948); Henderson v. Cook, 27 Ga. App. 512 (1) (108 S. E. 904). The remaining testimony was sufficient to support the verdict, and the general grounds are without merit.
2. Special ground 1 complains that certain testimony, consisting of a conversation between the defendant and two of his employees, was hearsay and should not have been admitted. This ground is without merit because the evidence was admitted for the purpose of explaining the conduct and ascertaining the motive of the defendant. Code 38-302.
3. Special grounds 2, 3, 5, 7 and 8 deal with the measure of damages and are without merit because, the jury having returned a verdict for the defendant, these errors, if any, are harmless. Roddy v. Stansbury, 45 Ga. App. 705 (165 S. E. 764); Daughtry v. Ga. Power Co., 61 Ga. App. 505 (6 S. E. 2d 454); Story v. Howell, 85 Ga. App. 661, 671 (70 S. E. 2d 29). None of the other special grounds show merit and the trial judge did not err in denying the motion for new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Ernest H. Stanford, Frank A. Bowers, contra.
William A. Thomas, for plaintiff in error.
Saturday May 23 02:10 EDT

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