Opinion
38579.
DECIDED MARCH 8, 1961. REHEARING DENIED MARCH 23, 1961.
Tort; malicious prosecution. Bacon Superior Court. Before Judge Roddenberry.
R. E. Lawson, for plaintiff in error.
E. Kontz Bennett, T. J. Townsend, contra.
1. As against a general demurrer, the plaintiff's petition, as amended, sets forth a cause of action based on malicious prosecution.
2. The offered amendment designated as count 2, being germane to the original petition, should have been allowed.
DECIDED MARCH 8, 1961 — REHEARING DENIED MARCH 23, 1961.
Mrs. Lola Wheeler, as administratrix of the estate of Rosalind Wheeler, deceased, filed an action in Bacon Superior Court against the Satilla Rural Electric Membership Corporation, James P. Stafford, L. W. Taylor, Jr., Houston Garrard, Sam Dubose, individually, and Dubose Dubose, a partnership composed of Elton Dubose and Sam Dubose. Pertinent allegations of the petition are as follows: "[3] Petitioner avers that the defendants, did, with malice aforethought, institute an action in the Bacon County Criminal Court against the said Rosalind Wheeler for embezzlement of the sum of $15,606.59 from defendant Satilla Rural Electric Membership Corporation, conspiring to do so through various employees, agents, officers and associates of said corporation, said partnership and said individuals. [4] Said employees and officers and agents, well known to defendants, of the firms of the defendants, appeared before the Bacon County grand jury, and, in a concerted action, gave sufficient fraudulent and false evidence to obtain an indictment against said Rosalind Wheeler, charging said Rosalind Wheeler with the crime of embezzlement from the Satilla Rural Electric Membership Corporation, knowing same to be false and untrue at the time said evidence was given, said evidence being given for the purpose of obtaining an indictment against said Rosalind Wheeler, and which did result in obtaining an indictment against said Rosalind Wheeler. [5] Various employees of the defendants, and Sam Dubose in person, taking the witness stand, and swearing unequivocally, positively and fraudulently and maliciously that said Rosalind Wheeler did fraudulently and with intent to steal take from the Satilla Rural Electric Membership Corporation the sum and amount of $15,606.59. [6] Sam Dubose stated under oath that he recommended and demanded of the manager of said Satilla Rural Membership Corporation that said Rosalind Wheeler be fired and kept out of said defendant's office until he (Dubose) completed his audit of the books and records of the corporation, and that he did, at that time, openly and notoriously accuse said Rosalind Wheeler of embezzlement. Also that said Rosalind Wheeler was discharged as a result of his demands. . . . [8] That petitioner did, before and at the time of the defendants' commission of the grievances heretofore complained of, possess a good name and character amongst her neighbors, acquaintances, and business associates, for moral worth and integrity, and was never suspected nor accused of the crime of embezzlement nor of any other crime. [9] Petitioner was subsequently tried by jury in the Bacon County, Georgia, Superior Court, and was acquitted of all of said charges, said jury returning a verdict of `not guilty.' A certified copy of the indictment of the grand jury and of the acquittal by the trial jury is hereto attached as part and parcel of this petition by reference thereto, and incorporated as if the same were herein quoted verbatim."
The petition, as amended, alleges that the defendants' acts were a reprisal against the deceased "for being unable to and failing to prevent" her brother "from becoming a candidate to an office for the said Satilla Rural Electric Membership Corporation and for the further reason that the bond of said Rosalind Wheeler could be proceeded against if the said Rosalind Wheeler was convicted on this charge of embezzlement"; that each individual named as a defendant gave false testimony before a grand jury and at the trial of Rosalind Wheeler, and that the acts of the said officers, agents and employees of the defendant corporation were within the scope of their employment.
The amendment also sought to add a second count to the original petition which offered amendment contains allegations of fact similar to the original petition, though more in detail, and with additional general allegations that the acts of the defendants were without probable cause. The defendants renewed their general demurrers to the original petition, as amended, and interposed objections to the allowance of that portion of the amendment denominated as count 2.
On August 12, 1960, the trial court entered the following order: ". . . Upon hearing the matter, all parties being represented by counsel, it is ordered that the amendment designated as Count No. 1 be allowed, subject to demurrers and objections, and it is further ordered that the general demurrers to the original petition, as amended and designated Count No. 1, are hereby sustained on each of the grounds stated in said demurrers, and said petition, as amended by Count No. 1, be dismissed. It is further ordered that upon consideration of the objections to that part of the amendment designated as Count No. 2, that the objections be sustained for each of the reasons stated in said objections, and that Count No. 2 be disallowed in its entirety."
The plaintiff assigns as error the above order of the trial court.
1. "A petition merely serves, among other purposes, to set forth sufficient facts to show the plaintiff has a right for which the law supplies a remedy." Yorkshire Ins. Co. v. Cravey, 102 Ga. App. 591 ( 117 S.E.2d 167). See Grist v. White, 14 Ga. App. 275 ( 80 S.E. 519). The petition alleges such facts, which, if true, show that certain named defendants, with malice, appeared as witnesses before a grand jury of Bacon County, and, by false testimony, caused an indictment (special presentment) to be returned as true against Rosalind Wheeler charging her with the offense of embezzlement. The petition further alleges that, upon trial of the defendant under the indictment, she was acquitted. The petition, as amended, can only be construed as one seeking damages for malicious prosecution of Rosalind Wheeler. Under the ruling of Price v. Cobb, 63 Ga. App. 694 ( 11 S.E.2d 822) (see also Mimbs v. Battle, 13 Ga. App. 737, 79 S.E. 922; Clark v. Douglas, 6 Ga. App. 489, 65 S.E. 304) the petition sets forth a cause of action for malicious prosecution as against a general demurrer.
The defendants in error insist that the original petition, as amended, is fatally defective as an action for malicious prosecution, in that the same contains no allegation that the prosecution was instituted and pursued without probable cause. Want of probable cause is an essential element of an action for malicious prosecution. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450 ( 186 S.E. 464); Hearn v. Batchelor, 47 Ga. App. 213 ( 170 S.E. 203); Ellis v. Knowles, 90 Ga. App. 40 ( 81 S.E.2d 884). The petition affirmatively alleges that the individuals named as defendants gave false testimony in order to procure an indictment against Rosalind Wheeler charging her with the offense of embezzlement. One who knowingly procures an indictment by false testimony has a complete lack of probable cause. Such allegation is sufficient to show want of probable cause. See 54 C. J. S. 1043, Malicious Prosecution, § 77 (b).
The plaintiff's suit is against the Satilla Rural Electric Membership Corporation, James P. Stafford, L. W. Taylor, Jr., Houston Garrard, Sam Dubose, individually, and the partnership of Dubose Dubose, composed of Elton Dubose and Sam Dubose. Each individual named as a defendant is alleged to have given false testimony. James P. Stafford is alleged to be the manager of the defendant corporation, and the individuals named as defendants are alleged to be "employees, agents, officers and associates" of the defendant corporation, and that their acts complained of were within the scope of their employment. Bussell v. Dannenberg Co., 34 Ga. App. 792 ( 132 S.E. 230), discusses in great detail the authority of a general manager of a corporation, and in what respects the acts of a general manager will be deemed the acts of the corporation. It is stated in Godfrey v. Home Stores, Inc., 101 Ga. App. 269, 276 ( 114 S.E.2d 202): "Included in the usual responsibilities of a store manager is to prevent fraud being perpetrated upon the store owner in connection with the business. When in the performance of this duty the manager causes the prosecution of another, his employer, the store owner is under the doctrine of respondeat superior legally liable for his conduct." See also Progressive Life Ins. Co. v. Doster, 98 Ga. App. 641 ( 106 S.E.2d 307); Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 ( 58 S.E.2d 559). The petition alleges sufficient facts to show that the acts of these defendants were in behalf of the defendant corporation and within the scope of their employment and authority.
As to the individuals named as defendants, the petition sufficiently alleges that each knowingly gave false testimony before a grand jury in order to obtain an indictment (special presentment) against Rosalind Wheeler charging her with the offense of embezzlement, and that each gave false testimony against her at her trial under said indictment. As to the partnership, see Rogers v. Carmichael, 184 Ga. 496 ( 192 S.E. 39).
The defendants contend that a right of action based upon malicious prosecution does not survive the death of the one prosecuted. This contention is without merit. Code Ann. § 3-505; Complete Auto Transit v. Floyd, 214 Ga. 232 ( 104 S.E.2d 208).
2. The offered amendment to the petition denominated as count 2, the allegations of such being germane to the allegations of the original petition, does not set forth a new and distinct cause of action, and the same should have been allowed. City of Columbus v. Anglin, 120 Ga. 785 ( 48 S.E. 318); Shepherd v. Southern Pine Co., 118 Ga. 292 ( 45 S.E. 220); Ellison v. Georgia R. Bkg. Co., 87 Ga. 691 ( 13 S.E. 809). See Georgia Practice and Procedure, § 7-9. The trial court, therefore, erred in disallowing the plaintiff's amendment.
The court erred in sustaining the general demurrer, dismissing the petition, as amended, and in disallowing the offered amendment denominated as count 2.
Judgment reversed. Townsend, P. J., Carlisle and Jordan, JJ., concur.