Opinion
43866.
SUBMITTED SEPTEMBER 3, 1968.
DECIDED JANUARY 21, 1969.
Malicious use of process. DeKalb Superior Court. Before Judge Hubert.
Edward D. Wheeler, for appellant.
J. E. Wilson, for appellee.
1. In the trial of an action for malicious use of process, in which actual and punitive damages are sought, it was error for the court to admit evidence tending to show the worldly circumstances of the defendant. Central of Ga. R. Co. v. Newton, 23 Ga. App. 96 ( 97 S.E. 553) and citations.
2. It was error for the court to admit evidence of items of damages when allegations setting forth such damages had been stricken on special demurrer.
3. Unless actual damages are sufficiently proved in such a case punitive damages are not recoverable. Beverly v. Observer Pub. Co., 88 Ga. App. 490 ( 77 S.E.2d 80). Since the case must be tried again we make no ruling that no item of special damage was sufficiently proved within the framework of the pleadings. We simply call attention to the fact that at least one item of special damages must be proved, the reasonable value of attorney's fees or the definite proof of the cost of the bond obtained, or both, not in excess of the amounts pleaded.
4. It is the better practice for the trial judge to exclude evidence of special damages which had been excluded by rulings on demurrer rather than admit the evidence and instruct the jury not to consider it. This practice will likely be followed on another trial.
The court erred in overruling the motion for a new trial as amended.
Judgment reversed. Eberhardt and Whitman, JJ., concur.