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Lawskills.com Georgia Caselaw
COUNIHAN et al. v. FERRELL.
35011.
Malicious use of process. Before Judge Heery. Savannah City Court. November 9, 1953.
FELTON, C. J.
The petition did not allege damages recoverable for malicious use of civil process, where it did not show an arrest of the person, seizure of property or other special injury, and the court erred in overruling the general demurrer thereto.
William L. Ferrell sued "as partners" fourteen individuals, members of Local Union No. 508, International Brotherhood of Electrical Workers, an unincorporated association, to recover damages for alleged malicious use of process, and alleged that the defendants and others whose names were unknown to the petitioner were members of the said union; that at a meeting of "said association or partnership" in 1949 it was decided by said association or partnership to file a suit against the petitioner, charging him with misappropriation of certain moneys of said association or partnership; that the action was filed against the petitioner by M. J. Counihan, for the use of said association or partnership, maliciously and without probable cause, and that the case terminated in the petitioner's favor. The following damages were alleged: $300 attorney's fees for defending the action against the petitioner; $62, one-half of the cost of having the case reported; $15,000 for humiliation, worry, and nervous strain impairing the petitioner's health and ability to work, and punitive damages of $15,000. By amendment it was alleged that, before the filing of the action against the petitioner he had an average earning capacity of $125 per week, and that since it was filed his earning capacity had been reduced to an average of $75 per week; and that the petitioner was born August 12, 1907, and was in sound health at the time of the filing of said suit. The defendants, except S. L. Hodges, demurred generally and specially to the petition. The demurrers were overruled, and the demurring defendants excepted.
The court erred in overruling the general demurrer to the petition for the reason hereinafter stated. Whether the petition was subject to general demurrer for other reasons, or to the special demurrers, is not decided. In an action for malicious use of civil process which did not involve an arrest of the person, seizure of property, or other special injury, general and punitive damages are not recoverable, and damages for humiliation and expenses of defending the action do not constitute special damages recoverable in such an action; and a petition alleging such a malicious use of civil process, which does not allege specific special damages recoverable in such an action, is subject to general demurrer. Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 S. E. 2d 76); Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (70 S. E. 2d 734), and cases cited; Price v. Fidelity Trust Co., 74 Ga. App. 836 (41 S. E. 2d 614); Swain v. American Surety Co., 47 Ga. App. 501 (171 S. E. 217). Under the allegations of the petition, loss of earning capacity could have been caused only by damage to reputation and its ill effects, and under the authorities cited such damages are not recoverable.
The court erred in overruling the general demurrer to the petition.
Emanuel Lewis, Lewis, Wylly & Javitz, contra.
Brannen, Clark & Hester, for plaintiffs in error.
DECIDED MARCH 17, 1954.
Saturday May 23 03:29 EDT


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