Summary
stating that "[a claimant] must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy"
Summary of this case from Bay Area Mobile Medical v. ColagiovanniOpinion
41932.
SUBMITTED APRIL 4, 1966.
DECIDED NOVEMBER 29, 1966.
Action for damages. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Thomason Rice, Alfred A. Rice, for appellant.
Alston, Miller Gaines, Ronald L. Reid, Michael A. Doyle, for appellees.
Where one seeks to impose civil liability for a conspiracy, the gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. The plaintiff must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy.
SUBMITTED APRIL 4, 1966 — DECIDED NOVEMBER 29, 1966.
J C Ornamental Iron Company, Inc. brought this action against H. O. Watkins, Georgia Steel Supply Company, William A. Fisher and the Citizens Southern National Bank.
The petition alleges as follows: Defendant Watkins was president of defendant Georgia Steel Supply Company, and defendant Fisher was a vice-president of the defendant bank. Watkins and Georgia Steel Supply Company were customers and substantial depositors at the bank, and Fisher was a close personal friend of Watkins. Watkins, Georgia Steel Supply Company and Fisher conspired to destroy plaintiff's business and to acquire all plaintiff's assets by a scheme of fraudulent misrepresentations, trespassing and malicious interference with plaintiff's business. On January 11, 1965, plaintiff owed Georgia Steel Supply approximately $34,000, and was in severe financial difficulty. Watkins then "volunteered to `help' plaintiff by personally guaranteeing a promissory note" in favor of the bank. At plaintiff's request prior to execution of the note and security agreement, Fisher assured plaintiff "that said note and security agreement would never under any conditions be transferred out of said bank without said bank's first expressly notifying plaintiff (and thus giving plaintiff an opportunity to make arrangements for other financing)." Plaintiff then gave the bank a note for $34,500, and a security agreement covering "all of the assets of plaintiff which could be mortgaged." After plaintiff had made these arrangements with the bank, Watkins "commenced a practice of repeatedly trespassing upon plaintiff's premises and job and maliciously interfering with plaintiff's business, harrassing, worrying, intimidating and frightening plaintiff's agents, employees and workers . . . Watkins and his co-conspirators, by surveillances, inquiries, remarks, innuendo and attempts to drive away, and offers to hire away, plaintiff's key employees, sought to damage, and did irreparably damage, plaintiff's business." Plaintiff made the installment payments on the note until September 22, 1965, though often several days late. On September 22, an installment being then due, plaintiff deferred payment, expressing to the bank the intention to make payment on October 1. On October 1 plaintiff requested additional time, until October 5, to make payment. "Plaintiff was then . . . informed by said William A. Fisher that the aforesaid proposal of plaintiff's president to make payment not later than Tuesday, October 5, 1965, would be satisfactory. . ." Later the same day the bank, acting through Fisher, transferred the note and security agreement to Watkins without any notice or warning to plaintiff. On October 4, while plaintiff's president was away from his office, "Watkins (in the company of a Mr. Vining, the bookkeeper of said Georgia Steel Supply Company) without plaintiff's permission entered the private office of plaintiff's president on the premises of plaintiff, stated falsely to the secretary that he, said H. O. Watkins, had been authorized by plaintiff's president to then examine plaintiff's books, papers and records, in an authoritative manner asked her to leave the room and proceeded . . . to rummage through plaintiff's books, papers and records, making voluminous notes." On October 5, Watkins notified plaintiff that the note and security agreement had been transferred to Watkins, and demanded payment of the entire balance of the note ($25,053.09) and an additional amount of $7,138.93 which plaintiff owed Georgia Steel Supply Company. The various acts of Watkins in concert with the other defendants had so damaged plaintiff's business that plaintiff could not obtain the financial assistance necessary to satisfy Watkins' "ruthless, avaricious and insatiable greed." Because of the security agreement, Watkins "held an apparent . . . right to virtually all of plaintiff's assets and . . . plaintiff suffered a loss of its entire business and was compelled to terminate its operations." The petition seeks $500,000 general damages, $500,000 exemplary damages and $100,000 expenses of litigation.
Plaintiff took this appeal from the judgment of the trial court sustaining defendants' general demurrers to the petition.
"A conspiracy . . . is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage." Vandhitch v. Alverson, 52 Ga. App. 308, 310 (1) ( 183 S.E. 105); Drummond v. McKinley, 65 Ga. App. 145, 152 ( 15 S.E.2d 535); National City Bank v. Graham, 105 Ga. App. 498, 504 ( 125 S.E.2d 223). The plaintiff may plead the conspiracy in general terms. National Bank of Savannah v. Evans, 149 Ga. 67 (2a) ( 99 S.E. 123). But he must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy. See Cook v. Robinson, 216 Ga. 328 (4) ( 116 S.E.2d 742).
Plaintiff does not allege that it was deprived of possession of its books and records or that the property was injured in any way. Thus the petition does not state a cause of action for trespass to personalty. See Code §§ 105-1701 and 105-1703; Restatement, Torts 2d § 218. And since the petition alleges no description of plaintiff's premises which were entered by Watkins, it does not allege a cause of action for trespass to realty. Weimer v. Cauble, 214 Ga. 634, 637 ( 106 S.E.2d 781). The allegations that Fisher falsely represented that the note and security agreement would not be transferred without prior notice to plaintiff and that the bank would allow plaintiff until October 5 to make payment of the installment due September 22 are insufficient to charge fraud. Fraud cannot be predicated upon statements which are merely promissory in their nature as to future acts. Jackson v. Brown, 209 Ga. 78, 80 ( 70 S.E.2d 756); Beach v. Fleming, 214 Ga. 303, 306 ( 104 S.E.2d 427); Rogers v. Sinclair Refining Co., 49 Ga. App. 72, 74 ( 174 S.E. 207). While plaintiff alleges that Watkins harrassed and frightened plaintiff's employees and attempted to hire them away from plaintiff, the petition contains no allegations of fact showing that plaintiff was injured in any way by these acts of Watkins. The bare allegation that Watkins "did irreparably damage" plaintiff's business by these acts is a mere conclusion of the pleader. Hearn v. Gower, 1 Ga. App. 265 (2) ( 57 S.E. 916); Close v. Matson, 102 Ga. App. 663 (1) ( 117 S.E.2d 251). Thus the petition fails to state a cause of action upon any theory.
Under these circumstances plaintiff's charge that defendants conspired to destroy plaintiff's business and to acquire all plaintiff's assets was ineffectual to aid the defective petition. "If no cause of action is otherwise alleged, the addition of allegations concerning conspiracy will not make one." Cook v. Robison, 216 Ga. 328 (4), supra.
The trial court did not err in sustaining defendant's general demurrers.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.