Turner v. Davison-Paxon-Stokes Co.

Wade, C. J. 1. In a suit for damages on account of an alleged malicious prosecution, the burden is upon the plaintiff to show that the prosecution was instituted without probable cause. The undisputed evidence in this case discloses that this burden was not carried by the plaintiff. Aside from anything else, the alleged agreement on the part of the defendant to accept a-portion of the amount due by the plaintiff on account of certain worthless checks transferred by her to the defendant in purchasing merchandise for cash, and to extend time of payment on the balance due, was not affirmatively shown by any testimony to have been made in behalf of the defendant by any agent or person vested with authority to extend credit or to effect such an agreement; and in view of the distinct denial of such authority by the alleged agent, and in the-.absence of any circumstances tending' definitely to contradict his evidence, there was nothing to show a want of probable cause, which, even under the testimony of the plaintiff, otherwise existed. 2. The trial judge did not err in directing a verdict in favor of the defendant, for no other verdict could- have been legally reached under the testimony. Judgment affirmed. Jenkins and Luke, JJ., concur.