Opinion
35928.
DECIDED JANUARY 4, 1956.
Action for damages. Before Judge Pharr. Fulton Superior Court. August 5, 1955.
Levy, Buffington Levy, for plaintiff in error.
Philip T. Keen, Osgood O. Williams, contra.
1. A petition seeking to hold a defendant corporation liable for the wilful and malicious tort of its "duly authorized agent" but which fails to allege that such tort was committed within the scope of the master's business and in the prosecution thereof fails to set out a cause of action against such corporation.
2. "Where property of a person against whom no process has ever issued is seized, such seizure, followed by actual damages to the owner of the property, will give a right of action." Fulton Grocery Co. v. Maddox, 111 Ga. 260, 265 ( 36 S.E. 647). A petition alleging that a judgment on account was obtained against "Willie A. Bussey", and that thereafter wages due and owing to "Willie Lee Bussey" were seized in garnishment proceedings instituted on such judgment by the holder thereof wilfully and maliciously, with knowledge that the person whose wages were seized was not the person indebted, from which action damages accrued to such wage earner, is sufficient to state a cause of action.
DECIDED JANUARY 4, 1956.
Willie Lee Bussey brought an action for damages against Atlanta Hub Company, Inc., a corporation organized under the laws of the State of New York and doing business with officers, agents, and a place of business in Atlanta. The material allegations of his petition as amended are substantially as follows: During the month of October 1954, a deputy marshal of the Civil Court of Fulton County brought a summons to the plaintiff's residence and served the plaintiff's wife with it. The summons was issued in a suit styled: "Atlanta Hub Co., 115 Whitehall Street, S.W. vs. Willie A. Bussey, alias Willie A. Bussie," and was for a balance due on merchandise in the amount of $33.14 plus $6.66 interest. The suit was not itemized and was unsworn. The deputy marshal left the summons with the plaintiff's wife, and when informed of this, the plaintiff directed his wife to take the suit and summons to the defendant to determine why the summons was left at the plaintiff's residence. Acting as the duly authorized agent of the plaintiff, the plaintiff's wife went to the principal office of the defendant and was directed to the credit manager. The plaintiff's wife informed the credit manager that the plaintiff was not indebted to the defendant in any sum whatsoever; that the plaintiff had never been upon the defendant's premises or purchased anything from the defendant; and requested that the credit manager straighten out the matter then and there. The credit manager, whose name is unknown to the plaintiff but well known to the defendant, acting within the scope of his authority as agent for the defendant, made inquiry into the accounts and told the plaintiff's wife that the defendant was wrong in bringing the action against the plaintiff as he was not the person who owed the defendant the account upon which suit was brought, and the credit manager further informed the plaintiff's wife to advise the plaintiff to disregard the suit, No. 392977, pending in the Civil Court of Fulton County, and it would be dismissed by the defendant corporation. On November 9, 1954, the defendant, through its attorneys, made affidavit for garnishment against the plaintiff in the amount of $55.88 principal, and $6.25 as costs, in which it was sworn that judgment had been obtained in suit No. 392977 in the Civil Court of Fulton County, and in which the plaintiff's employer, Armour Company, was named as garnishee. Upon being informed by his employer's paymaster that the garnishment, No. 396772, was being run, the plaintiff immediately went to the office of the defendant to interview the credit manager, the duly authorized agent, servant, and employee of the defendant. The credit manager informed the plaintiff that the original suit, No. 392977, had been served on the wrong person, the garnishment, No. 396772, had been run against the wrong person, and served on the wrong garnishee; and informed the plaintiff that he was not indebted to the defendant in any sum whatsoever. The credit manager then directed the plaintiff to the offices of the defendant's attorneys and advised the plaintiff to request the attorneys to dismiss the suit and garnishment against the plaintiff. Acting upon the credit manager's direction, the plaintiff went to the offices of the defendant's attorneys and talked with one of the attorneys who stated: "You must be the man who owes the account, but I will take the matter up with my client with reference to the matter of dismissing said garnishment." The plaintiff then went back to his employer and requested the money which had been withheld from his weekly pay check, but was informed by the paymaster that the defendant had not forwarded a release. On December 1, 1954, the plaintiff employed attorneys to represent him in the matter, and these attorneys wrote a letter to the defendant requesting that the sum which had been withheld from the plaintiff's check, $39.80, be returned to the plaintiff and insisted that the amount had been wrongfully obtained from the plaintiff. On the following day, December 2, 1954, the credit manager of the defendant contacted the plaintiff's attorneys and advised them that the defendant had no account against the plaintiff; that the proceedings were wrongfully instituted, and he would immediately return the sum which had been withheld from the plaintiff's check. Several days elapsed and the defendant failed to return the sum to the plaintiff. The plaintiff's attorneys again contacted the credit manager of the defendant and were advised that the money was held by the court and the plaintiff could go the courthouse and receive the sum withheld. Acting upon this instruction, the plaintiff went to the courthouse and was advised the court did not hold this sum and it had not been paid into court as the last day for answering the suit and garnishment had not expired. The plaintiff returned to his work and in two or three days was advised by his employer's paymaster that the defendant had sent the employer a release of the sum withheld from the plaintiff's check and he could come to the office and get his money. The plaintiff heard nothing further from the suit until about January 26, 1955, when his employer's paymaster called him into his office, and, in the presence of other regular employees, told him that another summons of garnishment had been served on the employer against the plaintiff by the defendant. This summons was issued by virtue of the original garnishment proceeding, No. 396772. The paymaster, being the duly authorized agent of the employer, contacted the credit manager of the defendant concerning the summons and was advised by the credit manager to contact the defendant's attorneys. The paymaster did so and one of the attorneys, acting as the duly authorized agent of the defendant, informed the paymaster that the plaintiff was the man indebted to the defendant and insisted that the employer of the plaintiff withhold the sum of $44.88 plus $6.25 as costs from the salary of the plaintiff. On January 28, 1955, the plaintiff went to the office of the paymaster to receive his weekly wage and was informed that the stated sum had been withheld from his salary under the summons and garnishment issued. The defendant was represented by the same attorneys in the original suit, No. 392977, in the garnishment proceedings, No. 396772, and in the garnishment proceeding on which the summons was issued on January 26, 1955. All of the regular employees of the plaintiff's employer who handle the payroll knew of the garnishment being run against the plaintiff's wages. All of the regular employees in the plaintiff's department at his employer's knew of the garnishment against his wages. The defendant knew or should have known that the garnishment would become common knowledge among the office employees and the plaintiff's fellow employees. Prior to the garnishment proceedings the plaintiff enjoyed an excellent reputation at his employer's where he had been employed for 14 years, and enjoyed an excellent reputation among his fellow workers. Prior to the institution of the suit against him and the garnishment proceedings, the plaintiff had a good credit rating and was able to obtain credit whereas now his credit has been impaired. The defendant, through its regular servants, agents, and employees had knowledge that the plaintiff was not Willie A. Bussey and was not the person who had incurred the alleged obligation to the defendant. The defendant had knowledge that the suit was against the wrong person, and also had knowledge that the garnishment sworn out November 9, 1954, was against the wrong person. With this knowledge the defendant knew that the plaintiff was not the responsible party named in the suit and the defendant had actual notice of this fact through its credit manager. The defendant acted in bad faith and with malice for the unlawful purpose of forcing the plaintiff to pay the debt of another. The defendant instituted the proceedings maliciously and after knowledge that the plaintiff was not the person indebted to the defendant, and continued the proceedings for the purpose of extorting sums of money from the plaintiff wrongfully and illegally. The defendant resorted to the processes of the court for the purpose of illegally extorting the money from the plaintiff. All of the acts "were a malicious use of legal process" and were wilfully, knowingly, and maliciously done for illegal purposes and without probable cause. The plaintiff has been subjected to embarrassment, humiliation, and ridicule by his fellow employees as a result of having been garnished, and the ridicule and scorn has caused the plaintiff much mental pain and suffering for which he asks $5,000 in general damages. During the months of November, December, and January, the plaintiff lost $72 in wages as the result of six days lost from work necessitated by his undertaking to obtain a release from the garnishment. He incurred attorneys fees in the amount of $20, and the plaintiff asks $5,000 as punitive damages to deter the defendant from again maliciously using legal process for illegal purposes and without probable cause. The various garnishment proceedings, the original suit, and the release of the first garnishment are attached to the petition as exhibits. When the second garnishment was run against the plaintiff, his employer's paymaster contacted the defendant's credit manager and informed him that the only person in their employ whose name was "Bussey" was the plaintiff, named "Willie Bussey"; whereupon the credit manager of the defendant responded: "Willie Bussey, the person to whom you refer and whom you are now carrying on your payroll is the proper person on whom the Atlanta Hub Company has run a garnishment, and the sum of $44.80 should be deducted from his wages together with cost of court in the amount of $10." The credit manager, being the defendant's duly authorized agent, knew at the time he caused the summons of garnishment to run that the employee, Willie Bussey, in the employ of Armour Company, was not indebted to the defendant in any sum whatsoever and knew at the time he caused the paymaster to deduct the said sum from the plaintiff's wages that the plaintiff was not indebted to the defendant, and the credit manager was acting in bad faith and with malice for the unlawful purpose of forcing the plaintiff to pay the alleged debt of another. The plaintiff's employer deducted the money from the plaintiff's wages and paid it into court as directed by the summons, and the money was forwarded by the court to the defendant. The plaintiff has made demand upon the defendant for the return of the money, which has been refused.
The defendant's general demurrer to the petition as amended was overruled and it assigns error here upon that judgment.
1. Code § 105-108 provides in part as follows: "Every person shall be liable for torts committed by . . . his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." In Frazier v. Southern Ry. Co., 200 Ga. 590, 593 ( 37 S.E.2d 774) it is stated: "The true test is not whether the tort was committed by reason of anger, malice, or ill will, but whether or not it was committed in the prosecution and within the scope of the master's business. If the tort be committed, not by reason of the employment, but because of matter disconnected therewith, the master would not be liable. If the master might defend by showing that at the time of the commission of the tort by his servant upon another, within the course of his employment, the servant acted through anger, malice, or ill will, the purpose of the statute (§ 105-108), making the master liable for voluntary torts, would be defeated in most instances. Torts, assaults, batteries, and abusive treatment generally, are not prompted by a spirit of brotherly love, friendliness, and helpfulness." A corporation is not chargeable with acts of an agent done solely for his own benefit and from which no benefit accrues to the corporation. Hopkins v. City of Atlanta, 172 Ga. 254 (2) ( 157 S.E. 473). A corporation may, in proper case, be liable for malicious prosecution where the same is conducted by an agent or servant in furtherance of the business of the former, and within the scope of the latter's authority. Davison-Paxon Co. v. Norton, 69 Ga. App. 77 ( 24 S.E.2d 723). The petition of the plaintiff here, by alleging that the defendant's agent was credit manager of the corporation, and that, acting within the scope of his authority, he informed the plaintiff's wife to disregard the original suit, would, construed in favor of the pleader, imply that it was within the scope of the credit manager's authority in the prosecution of the master's business to cause the summonses of garnishment to be issued. But, as against general demurrer, every inference which may fairly be raised against the right to recover must be indulged in, and, there being no express allegation that the acts of the credit manager in causing the garnishments to be run and the plaintiff's money to be wrongfully withheld, after he knew that the plaintiff was not indebted to the corporation and after he assured the plaintiff that the mistake would be remedied, were acts within the scope of authority of the credit manager in the prosecution of the defendant's business, it must be assumed that such acts were not within the scope of his employment. For this reason the petition fails to set out a cause of action as against the defendant corporation. See King v. Citizens Bank of DeKalb, 88 Ga. App. 40 ( 76 S.E.2d 86).
2. It is further contended by the plaintiff in error that, aside from this omission, the petition would not in any event state a cause of action for the reason that it fails to allege either a trespass or a malicious abuse of process. This contention is not sustainable. We are inclined to agree with the trial court that, under the authority of King v. Yarbray, 136 Ga. 212 ( 71 S.E. 131) the petition alleges a cause of action for malicious abuse of legal process in that it alleges that the defendant "knowingly and maliciously perverted the process of garnishment for a purpose not intended by the law, i.e., to procure the funds of another than defendant in fi. fa." If, however, the action is not literally and technically one for malicious abuse of process in that the plaintiff, whose wages were seized and withheld by the process of garnishment, was not the person against whom the judgment was obtained (in which connection see Williams v. Inman, 1 Ga. App. 321, 325, 57 S.E. 1009) he would still have a right of action in damages for the trespass. Duncan v. Ellis, 63 Ga. App. 687 (2) ( 11 S.E.2d 841); Baldwin v. Davis, 188 Ga. 587 (1 e) ( 4 S.E.2d 458); Fulton Grocery Co. v. Maddox, 111 Ga. 260, 265 ( 36 S.E. 647). In the latter case, at page 265, it is stated: "Where property of a person against whom no process has ever issued is seized, such seizure, followed by actual damages to the owner of the property, will give a right of action." It cannot be seriously contended that there was no seizure of the plaintiff's wages in this case, since the employer was compelled by the summons of garnishment to withhold them from him so that, whether or not they were actually paid into court, or paid over to the defendant corporation which was the plaintiff in the original suit, he was effectively deprived of them by means of the court process employed by the corporation. Considered as a trespass, the petition would also state a cause of action for punitive damages under Code § 105-2002. Accordingly, except for the deficiencies pointed out in the first division of this opinion, the petition would have been good as against general demurrer.
The trial court erred in overruling the general demurrer to the petition.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.