Opinion
33724.
DECIDED JANUARY 17, 1952. REHEARING DENIED FEBRUARY 26, 1952.
Malicious prosecution; from Fulton Superior Court — Judge Shaw. June 21, 1951.
F. L. Breen, for plaintiff in error.
John L. Westmoreland, John L. Westmoreland Jr., contra.
Where it appears from the plaintiff's petition that he was arrested and imprisoned under a warrant sworn out by the defendant, charging larceny after trust, and on the commitment hearing the plaintiff was discharged and the prosecution ended, the petition set up a cause of action for malicious prosecution, it being alleged that the prosecution was without probable cause and was maliciously carried on.
DECIDED JANUARY 17, 1952 — REHEARING DENIED FEBRUARY 26, 1952.
Tom W. Spurlock brought suit in Fulton Superior Court against Mrs. Ora Wall's Cleaners Hand Laundry Inc., a corporation of said State and county, and against Mrs. Ora B. Wall, alleging in his petition substantially these facts: The defendants have injured and damaged the plaintiff in the sum of $20,350 by reason of the facts hereinafter stated. The plaintiff was employed by the defendants from on or about March 1, 1949, until on or about March 12, 1951, and during this time he was employed as a route man and performed the duties pertaining to this job, which consisted of collecting, distributing and calling for laundry and dry cleaning, and of filing daily reports with the defendants, showing the dry cleaning and laundry delivered, undelivered and distributed to customers of the defendants, and also showing on the back of such reports the amount of money collected and showing a balance on these reports. For more than two years the plaintiff was so employed by the defendants and it was the custom and practice of the plaintiff and other drivers employed as route men, which was well known to the defendants, for them to leave the laundry and dry cleaning bundles with customers of the defendants without at the time collecting the money or cash in payment therefor. On numerous occasions during this time the defendants permitted the plaintiff advances on his commissions for work delivered by allowing him to keep part of the money collected from their customers until he was able to collect the money to be paid by those customers who had received their laundry and dry cleaning and had not paid therefor. On many occasions, the defendants advanced the plaintiff money on his commissions for certain living expenses and authorized, permitted and instructed him to retain part of the money collected from their customers as such advances. It was the plaintiff's custom and practice, with the knowledge and consent of the defendants, to show on his daily reports that he had delivered laundry and dry cleaning which had not been paid for, by showing the shortage on the daily reports. Also the defendants permitted the plaintiff to draw advances on his commissions and show record of such advances on his daily reports, and by giving to them "I. O. U." notes or promises to pay. On or about September 19, 1950, the plaintiff signed several promissory notes at the instance and request of the defendants, agreeing to pay them on an instalment basis a sum of money that the plaintiff then owed to them, representing the advances on commissions. On or about March 12, 1951, Walter B. Vittur, president of the defendant corporation, advised the plaintiff that he owed the corporation $180.27, representing advances on commissions and an "I. O. U." which the plaintiff had given to the defendants. The plaintiff advised Vittur, an agent of the corporation, that he could not pay the entire $180.27 at that time and would have to pay same in small instalments, and Vittur informed the plaintiff, "that that would be all right and that they would not bother about it any further." On March 12, 1951, without any reason whatsoever and without any notice whatever, said Vittur, the president of the defendant corporation, "fired petitioner and terminated his employment with the corporation." During all this time, the defendant, Mrs. Ora B. Wall, was secretary and treasurer of the defendant corporation, and had complete and full knowledge of the custom and practice of allowing the plaintiff to deliver laundry without then collecting payment therefor and permitted him to retain the money collected as advances on his commissions without collecting payment therefor and permitted him to retain money collected as advances on commissions and to sign notes and give "I. O. U." promises for money owed by him to the corporation; and this defendant had complete knowledge that said Vittur, the president of the corporation, had on March 12, 1951, extended credit to the plaintiff "on the sum of $180.27 that petitioner owed to the defendant corporation on said date." Notwithstanding that she had full knowledge of these facts, the defendant, Mrs. Ora B. Wall, on March 22, 1951, signed an affidavit on a criminal warrant which issued from the Civil Court of Fulton County, charging the plaintiff with larceny after trust as to said $180.27 so owed by the plaintiff to the defendant, and acting individually and as secretary and treasurer of the corporate defendant, caused this warrant to issue. On March 23, 1951, around 2:30 p. m., this warrant was executed by a deputy marshal of said court, who arrested the plaintiff and transported him to the common jail "at Fulton Tower," in the City of Atlanta, where the plaintiff was searched, fingerprinted and forced to submit to questioning and other humiliating treatment at the jail as a "common thief." The defendants caused the plaintiff to be imprisoned in said jail and to be deprived of his freedom for four hours. It was necessary for the plaintiff to telephone some eight or ten of his personal friends to obtain the bond for his release, having to explain to these persons that he was charged with larceny after trust. The plaintiff had always enjoyed the best reputation for honesty and uprightness and was held in the highest esteem and reputation by his friends and as a result the plaintiff was injured in his good name, reputation and credit and suffered mortification and embarrassment, he being charged and accused of being a common thief. On March 23, 1951, when the plaintiff was arrested and imprisoned under said warrant, he was working as a floor salesman at the Lawrence Furniture Company, 85 Whitehall Street, Atlanta, Georgia. The plaintiff was injured in his good name, reputation and credit with said furniture company and suffered mortification, embarrassment and humiliation when he was arrested at said place of employment under said warrant. On March 26, 1951, the attorney representing the defendants, and at said time and place acting as their agent in the course of his employment and within the scope of his authority, made the statement to John Griffin that the only reason the warrant for larceny after trust was sued out against the plaintiff was for the purpose of collecting the money which the plaintiff owed the defendants. The commitment hearing on said warrant was held before Hon. J. Ralph McClelland, judge of the criminal division of said court, and on March 30, 1951, after the evidence from both parties had been heard by the court, the court discharged the plaintiff herein and vindicated and acquitted him of the charge of larceny after trust and said warrant and prosecution terminated in favor of the plaintiff. The charge set forth in said criminal warrant was false and the plaintiff's arrest, imprisonment and prosecution were procured by the defendants wantonly and maliciously and carried on without probable cause. As a result of such arrest, imprisonment, and malicious prosecution, the plaintiff has suffered mortification, embarrassment and humiliation and has suffered from nervousness and inability to sleep, and the same has affected his health to an extent that he cannot properly perform his duties with said furniture company. As a result of the arrest, imprisonment and malicious prosecution carried on by the defendants, the plaintiff has lost the sum of $150, being lost time from his employment with said furniture company. It was necessary for the plaintiff to procure counsel to represent him in said criminal proceedings and he has thereby incurred attorney's fees in the sum of $200. At all times herein mentioned, said Vittur was president of the corporate defendant, and was acting as its agent within the course of his employment and within the scope of his authority. During all of said time, the defendant, Mrs. Ora B. Wall, was secretary and treasurer of said defendant corporation, and was acting individually and as such agent in the course of her employment and within the scope of her authority. As a result of the wilful and malicious prosecution of the plaintiff, he is entitled to recover of the defendants punitive damages in the sum of $10,000.
The defendant, Mrs. Ora B. Wall, demurred to the plaintiff's petition generally as setting up no cause of action against her, and she also demurred to 28 paragraphs of the plaintiff's petition as being immaterial, irrelevant, not germane to the alleged cause of action, insufficient to charge the defendant with any liability as stating conclusions of the pleader, as containing more than one traversable allegation in one paragraph, and as deficient as to time, date, place and person. The trial judge overruled the demurrers of this defendant, general and special, and the case is now in this court on exceptions to that judgment.
All that is required of a plaintiff is to plainly, fully and distinctly allege the facts, on which he bases his right to recover against the defendants, setting the same forth in an orderly manner with the paragraphs numbered consecutively. He is not required in the interest of good pleading to go into detail and to minutely specify and set out in his petition the evidence on which he relies to make out his case. A petition which is in compliance with this broad rule, if it alleges facts which authorize a recovery by the plaintiff against the defendants, is sufficient to withstand a general demurrer. See Georgia-Alabama Coca-Cola Bottling Co. v. White, 55 Ga. App. 706 ( 191 S.E. 265); Justice v. Davis, 62 Ga. App. 872 ( 10 S.E.2d 267). The statement of the plaintiff's alleged cause of action was sufficiently full and distinct to enable the court to determine whether a cause of action existed and to enable the defendants to understand the exact nature of the demand made against them by the plaintiff and to properly prepare any defense thereto which they might have.
The plaintiff seeks to recover of the defendants damages for maliciously prosecuting against him a criminal action. This is an action for malicious prosecution. "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." Code, § 105-801. Where a warrant is issued by the Civil Court of Fulton County, upon affidavit by one of the defendants, as the secretary and treasurer of the corporate defendant, on which the plaintiff is arrested, imprisoned and a commitment hearing or trial is had thereon, same is a prosecution of the person charged in the affidavit with the alleged offense, and the warrant, charging such person with the criminal offense of larceny after trust, constitutes a criminal prosecution or prosecution of the person charged in the affidavit and warrant for a criminal offense, and where such prosecution is maliciously carried on, a right of action accrues to the person so arrested, imprisoned and prosecuted, where the prosecution is also carried on without any probable cause. Code § 105-802 reads: "Want of probable cause shall be a question for the jury under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." Code § 105-804 reads: "A total want of probable cause is a circumstance from which malice may be inferred, but such inference may be rebutted by proof." Also an inquiry before a committing court or justice of the peace shall amount to a prosecution. Code, § 105-805. In a suit for malicious prosecution of a criminal case without probable cause, "it is necessary to allege and prove that the action in which the process issued, has been finally determined in favor of the defendant therein." Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276 ( 62 S.E. 222). The petition of the plaintiff here alleges that there was a total want of probable cause, that the prosecution was maliciously carried on by the defendants, and that the same had terminated in favor of the defendant therein, the plaintiff here, when the committing court discharged the plaintiff in this action from said warrant. Such a petition is not subject to general demurrer. In Grist v. White, 14 Ga. App. 147 ( 80 S.E. 519), it is ruled that "Where a criminal process valid on its face has been maliciously sued out without probable cause, an action for malicious arrest or malicious prosecution is the only remedy."
Where it appears from the allegations of the petition that the plaintiff was arrested and imprisoned by virtue of a warrant charging him with larceny after trust, same being sworn out by one of the defendants, acting individually and as the secretary and treasurer of the corporate defendant, and on the commitment hearing in the Civil Court of Fulton County, the plaintiff was discharged by the committing court, and it is also set up that the plaintiff's prosecution by the defendants was without probable cause and was maliciously carried on, the petition set up a cause of action for malicious prosecution sufficient to withstand the general demurrer urged by the defendant, Mrs. Ora B. Wall. See Peppas v. Miles, 82 Ga. App. 438 (2) ( 61 S.E.2d, 429).
The 28 special grounds of demurrer, directed to 28 of the 34 paragraphs of the plaintiff's petition are without merit (except as to the ground of special demurrer, to wit, ground No. 22, attacking paragraph 25 of the plaintiff's petition, wherein the plaintiff alleges that the defendants' counsel stated to a named person on March 26, 1951, after this warrant was issued and the plaintiff arrested thereunder, that the only reason the warrant was issued and the plaintiff arrested was for the purpose of collecting a sum of money that the plaintiff owed to the defendants). It does not appear that this statement was made in the presence or hearing of the individual defendant, or of any officer or agent of the corporation. Such allegation is, therefore, irrelevant and not proper to show malice on the part of the defendants, the clients of the attorney. See Farrar v. Brackett, 86 Ga. 463 (6) ( 12 S.E. 686). This ground of special demurrer should have been sustained and paragraph 25 of the petition stricken.
It follows that the petition was good against the general demurrer and that none of the grounds of special demurrer, except ground 22 are well taken. The court erred in not sustaining ground 22 of the special demurrer directed to paragraph 25 of the petition.
Judgment affirmed with direction that paragraph 25 of the petition be stricken. MacIntyre, P. J., and Townsend, J., concur.