In Dixie Broadcasting Corp. v. Rivera (1952) 209 Ga. 98, 70 S.E.2d 734, it was held that a proceeding filed with the Federal Communications Commission would provide the foundation for an action for malicious prosecution.Summary of this case from Kauffman v. A.H. Robins Co.
ARGUED JANUARY 17, 1952.
DECIDED APRIL 16, 1952. REHEARING DENIED MAY 14, 1952.
Libel. Before Judge Andrews. Fulton Superior Court. March 14, 1951.
Bouhan, Lawrence, Williams Levy, Douglas, McWhorter Adams, Powell, Goldstein, Frazer Murphy, and J. Winston Huff, for plaintiff in error.
Marvin O'Neal Jr., contra.
1. "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by." Code, § 81-1302. Consequently, there is no merit in the contention here made that the plaintiff's original petition did not contain enough to amend by.
2. A special demurrer to a petition must be in writing and filed within 30 days after service of the petition, unless there is a later amendment that materially changes the cause of action, in which event the amendment will open the petition as amended to demurrer.
( a) An amendment to a petition, made after the expiration of 30 days from service of the petition, does not open the petition to special demurrer where, if the petition was defective as contended, the defect was apparent before as well as after the amendment. Pierce v. Harrison, 199 Ga. 197, 199 (5) ( 33 S.E.2d 680).
( b) In this case the original petition was filed on August 10, 1950. It was not demurred to within 30 days after service upon the ground of duplicity. It was amended January 19, 1951, and again on January 12, 1951. Counts 1 and 3 of the petition were demurred to specially on the ground of duplicity on February 26, 1951. If count 1 is duplicitous, as contended, the defect was apparent before as well as after the amendments; and therefore the demurrer raising the question of duplicity came too late. Count 3 of the petition is not duplicitous, as contended.
3. A petition containing several counts, which do not differ in any substantial particular from each other, will, on special demurrer, be dismissed unless the surplus counts are eliminated by amendment. In this case count 1 and count 3 are materially different, and the petition is, therefore, not subject to the criticism that it is repetitious.
4. One of the defendants was referred to and described in the petition as "Dixie Broadcasting Corporation." An individual responded to the petition and filed a plea of nul tiel corporation, alleging therein that he owns and operates a business which he conducts under the trade name of "Dixie Broadcasting Company." The same individual, in his trade name capacity, demurred generally and specially to the petition, invoked a ruling upon his demurrers, excepted to the ruling and sued out a writ of error. It is here contended for the first time that a ruling upon his demurrers was premature, since the issue made by the plea of nul tiel corporation should have been first determined. Obviously and manifestly, there is no merit in this contention. The absence of a previous determination of the special plea of nul tiel corporation is no obstacle to a decision by this court on the exception to the judgment on the demurrers. The special plea is pending in the trial court, unaffected by any ruling here complained of.
5. When the plaintiff employs a civil proceeding in order to execute the object which the law intends for it to subserve, but proceeds maliciously and without probable cause, an action for malicious use of legal process lies. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein.
6. Neither count of the petition, as amended, alleges damages recoverable in an action for the malicious use of a civil proceeding; consequently, the amended petition failed to state a cause of action for the relief sought and was therefore subject to general demurrer.
7. A plaintiff must plead his cause plainly, fully, and distinctly. Special defects or omissions in his petition may always be taken advantage of by special demurrer and, when the defendant calls upon the plaintiff by special demurrer to allege facts which are necessary for his defense, they should be averred so as to give the defendant reasonable notice of the substantial particulars constituting the plaintiff's cause.
Nos. 17737, 17738. ARGUED JANUARY 17, 1952 — DECIDED APRIL 16, 1952 — REHEARING DENIED MAY 14, 1952.
On August 10, 1950, E. D. Rivers Jr. filed a suit in Fulton County Superior Court against Dixie Broadcasting Corporation; WSAV, Incorporated; WDAR, Incorporated; Georgia Broadcasting Company; and Savannah Broadcasting Company. The petition in substance alleges: The Savannah Radio Council is an unincorporated association made up and composed of a membership consisting only of the defendants. The plaintiff owns and operates station WEAS at Decatur, Georgia, the same being his principal business. He decided to expand his radio business and applied to the Federal Communications Commission for permission to construct a new broadcasting station at Savannah, Georgia. Pursuant to an expansion policy, it was his plan to apply for a permit to construct and operate a station or stations at other places. The Commission, on March 6, 1950, granted him a permit to construct his Savannah radio station. On March 8, 1950, the defendants, acting together and in conspiracy with each other but in the name of the Savannah Radio Council, as a subterfuge, petitioned the Commission, in writing, pursuant to sections 1.390 and 1.721 of its Rules and Regulations, to revoke and set aside its said action of March 6, 1950, or in the alternative, pursuant to section 1.726 (c) of its Rules and Regulations, to revoke and set aside, on its own motion, its prior action and designate his application for a hearing. The petition so filed by the defendants through their association, as their agent, among others, contained the following statements: "Because of the interest of petitioner in maintaining a high standard of broadcasting in Savannah, petitioner has reviewed Mr. Rivers' representations in his application for station WEAS and has also analyzed his current operation of that station. The results of this study and also petitioner's examination of the subject application for a new station in Savannah are set forth in this petition. Petitioner submits that the facts set forth in this petition require that this application be designated for a hearing, and that had the Commission been aware of these facts at the time it considered the subject application it would not have granted it without hearing but instead would have designated it for hearing. . Petitioner believes it to be its duty and responsibility constantly to be watchful that proper ethical standards be maintained by all stations in Savannah for the protection of both the broadcaster and the listener, and bring to the appropriate attention of this Commission any matters which may affect the public interest, convenience and necessity. . . Examination of the present program schedule of Station WEAS shows that Mr. Rivers' current operation of that station is in sharp variance with the type of programming which he represented to the Commission in the application for original construction permit and in the application for the renewal of license. . . Furthermore, in view of the failure of Mr. Rivers to program WEAS, as he represented in application filed with the Commission, a substantial doubt exists as to whether he will fulfill the program proposals set forth in the subject application."
The Federal Communications Commission, on July 21, 1950, refused to revoke and set aside the plaintiff's construction permit or to assign it for a hearing, on its own motion. The aforesaid charges were knowingly false and untrue; they were made wilfully, maliciously, and without probable cause; and they, in effect, charged him with being dishonest, unreliable, a person who did not and would not adhere to his business commitments, a person who was accustomed to act contrary to his business agreements in an unethical manner, and that he was operating his station WEAS at Decatur in violation of his permit or license. The defendants, by the charges so filed, intended to injure, damage, and ruin his business reputation and his radio broadcasting business, drive him out of radio broadcasting, eliminate him as a competitor, and prevent and defeat any expansion of his radio business, especially in Savannah and Chatham County. The charges made against him by the defendants were received and read by the members of the Federal Communications Commission; they were extensively publicized, both in newspapers and magazines; the publication of them brought upon him and to his business scandal, infamy, and disgrace among his neighbors, friends, and business associates; the confidence which the members of the Federal Communications Commission had theretofore reposed in him was lessened; and the construction of his broadcasting station at Savannah was interrupted and delayed from April 15, 1950, to September 15, 1950. Because of the defendants' wrongful, wilful, deliberate, and malicious act, his business reputation and his radio broadcasting business were injured and damaged in the amount of $200,000, as general, exemplary and punitive damages, $25,000 in loss of revenue, and $17,500 as additional and added expense; and he prayed judgment for those amounts.
On September 6, 1950, Carter C. Peterson, alleging that he trades under the name and style of Dixie Broadcasting Company, filed a plea of nul tiel corporation for the defendant Dixie Broadcasting Corporation. On the same date, all of the defendants, except Savannah Broadcasting Company, filed general and special demurrers to the petition, but the petition was not demurred to at that time by any of the defendants upon the ground of duplicity.
On January 19, 1951, the plaintiff amended his original petition by adding two other counts, leaving his original petition as count 1. Count 2, by averments substantially the same as those made in the original petition, alleged that the defendants had wilfully, maliciously, and without probable cause injured and damaged his business reputation. And count 3, likewise by substantially the same averments, alleged that the defendants had wilfully, maliciously, and without probable cause, injured and damaged his radio broadcasting business. The two added counts prayed for the same damages as those sought by and prayed for in the original petition, or after amendment by count 1. The demurrers, general and special, previously interposed to the original petition were renewed to the petition as amended, and other grounds of special demurrer were interposed.
On February 12, 1951, the plaintiff amended each count of his petition by attaching thereto a copy of the protest filed by the defendants with the Federal Communications Commission, together with a copy of its order of dismissal of July 21, 1950. On the same day he also amended counts 1 and 3 by alleging in substance: that the defendants knew when they contested his construction permit through their association that neither the Federal Communications Act nor its Rules and Regulations provided for or permitted such procedure, it not being, as required, a firm, person or corporation; that they used their association as a subterfuge for the deliberate, wrongful, and malicious purpose of interfering with and delaying his radio broadcasting business, and by so filing said protest they did deliberately, wrongfully, and maliciously hinder and delay, injure and damage his radio broadcasting business. Each count of the petition averred: "Said delay has cost petitioner $25,000 in loss of revenue and $17,500 additional and added expense"; and the plaintiff, on March 10, 1951, amended each count of his petition by adding to the above-quoted allegation the following averments: "(c). That the aforesaid loss of revenue in the amount of $25,000 is a fixed and definite loss to your petitioner directly resulting from the defendants' aforesaid action, because during the time petitioner was delayed in commencing his operations, as set out in paragraph 8 (a) herein, he would have, except for said delay, operated his radio station, and petitioner avers that he had definite and specific contracts from advertisers for advertising fees, and petitioner's fixed and definite operating expenses during the same period would not have exceeded $10,000.00. (d). That the aforesaid loss due to additional and added expenses in the amount of $17,500.00 is a fixed and definite loss to your petitioner, directly resulting from the defendants' aforesaid actions, because (1) during the time petitioner was forced to delay his construction, preparatory to operating his said business, costs of materials advanced to such an extent that when petitioner did purchase the same upon resumption of the construction of said radio station, the cost to petitioner was not less than $15,000.00 in excess of the market value of the needed materials at the time and during the period he was delayed as aforesaid, and (2) while the aforesaid delay existed petitioner lost the option he had to purchase a site for his said station, which had been approved by the Federal Communications Commission, and the added cost, for engineering advice from qualified civil engineers in preparing data necessary to gain the approval of the Federal Communications Commission for another site which petitioner had to purchase, the first then not being available, after said delay, was in excess of $2,500.00."
After the allowance of this amendment subject to demurrer, the defendants, other than Savannah Broadcasting Company, renewed all prior demurrers, general and special, and on March 13, 1951, further demurred specially to each count of the petition as finally amended. The averments in "c" of the amendment of March 10, 1951, were attacked upon the grounds that they are vague and indefinite, speculative and remote, and constitute a conclusion of the pleader, in that it is not shown what definite and specific contracts for advertising the plaintiff had and how, how-in and wherein said $35,000 in advertising fees consisted; and the allegations in "d" of the amendment of March 10, 1951, were demurred to on the following grounds: The allegations as to items of damage are remote and speculative, and as to an increase in the cost of construction they are vague and indefinite in failing to set forth the various items and the amounts thereof in which costs have increased. The allegation as to the increase in the cost of a building site is vague and indefinite in failing to set forth the name of the civil engineers who prepared such data.
On March 13, 1951, the court overruled a motion, in the nature of a general demurrer, by the defendants, other than Savannah Broadcasting Company, to dismiss the petition as finally amended, including each of its counts. On March 14, 1951, the court also overruled the defendants' general demurrer to the amended petition as a whole, including each count thereof; sustained all grounds of the defendants' special demurrer of March 13, 1951, respecting special damages; and overruled or did not pass on the defendants' other grounds of special demurrer. The defendants excepted. All of the defendants, except Savannah Broadcasting Company, assigned error in a bill of exceptions to that part of the judgment which was adverse to them; and the plaintiff excepted and assigned error in a cross-bill of exceptions to that part of the judgment which was adverse to him.
This litigation involves questions over which the Court of Appeals has jurisdiction, but it was transferred by that court to this court for decision under article 4, section 2, paragraph 4, of the Constitution of 1945, because of an equal division between the Judges of the Court of Appeals while sitting as a body for the determination of cases. Chief Judge Sutton, Presiding Judge MacIntyre, and Judge Worrill were of the opinion that the petition, as amended, did not state a cause of action for any of the relief sought and that the judgment of the trial court should, for that reason, be reversed and that the cross-bill of exceptions should be dismissed. To the contrary, Judges Townsend, Felton, and Gardner were of the opinion that the judgment complained of should be affirmed on the main bill of exceptions and reversed on the cross-bill.
1-4. Headnotes 1, 2, 3, and 4 do not require elaboration.
5. The pleader does not characterize his action. He simply sets forth facts upon which he relies for recovery; and, if these facts are such as in law entitle the plaintiff to recover, it is not necessary that the action should be classified or characterized by any name. In this case the plaintiff complains of a proceeding the defendants filed against him with the Federal Communications Commission. There are various forms of action to which resort may be had to recover for an injury sustained by reason of the wrongful use of legal proceedings. Ordinarily the remedy is an action for malicious use or abuse of process. "The foundation of an action for malicious prosecution is an original proceeding, judicial in character." 54 C.J.S. 957, § 5. The Federal Communications Commission is not strictly a court, but it has quasi-judicial powers, and its proceedings must satisfy the pertinent demands of due process. 47 U.S.C.A. § 151 et seq.; L. B. Wilson Inc. v. Federal Communications Commission, 170 F.2d 793. The Federal Communications Commission is an administrative board of the Federal Government, and it was held in Melvin v. Pence, 130 F.2d 423 (143 A.L.R. 149), that a cause of action for malicious prosecution or the malicious use of legal proceedings may be predicated upon the prosecution of an administrative proceeding. To the same effect, see National Surety Co. v. Page, 58 F.2d 145. In Restatement of Law, Torts III, 458, § 680, it is said: "One who initiates or procures the initiation of civil proceedings against another before an administrative board which has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if (a) the proceedings are initiated without probable cause to believe that the charge or claim on which the proceedings are based is well founded, and primarily for a purpose other than that of securing appropriate action by the board, and (b) the proceedings have terminated in favor of the person against whom they are brought."
The amended petition in this case alleges that the defendants maliciously and without probable cause initiated proceedings against the plaintiff before the Federal Communications Commission; that the charges so made against him were false and untrue; that the proceeding so filed against him had finally terminated in his favor; and that his personal reputation and his radio business had been injured and damaged thereby in a stated amount. Those are the necessary elements of an action for the malicious use of legal process or the malicious use of a civil proceeding. Code, § 105-801; Juchter v. Boehm, Bendheim Co., 67 Ga. 534; Mitchell v. Southwestern Railroad, 75 Ga. 398; Coleman v. Allen, 79 Ga. 637 ( 5 S.E. 204); Wilson v. Sullivan, 81 Ga. 238 ( 7 S.E. 274); Porter v. Johnson, 96 Ga. 145 ( 23 S.E. 123); Slater v. Kimbro, 91 Ga. 217 ( 18 S.E. 296, 44 Am. St. R. 19); Woodley v. Coker, 119 Ga. 226 ( 46 S.E. 89); Mullins v. Matthews, 122 Ga. 286 ( 50 S.E. 101); Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276 ( 62 S.E. 222); 19 Am. Eng. Enc. of Law (2d ed.), 630. In Juchter's case, supra, this court said: "That the right exists to sue in all cases of the malicious abuse or use of legal process without probable cause, is universally recognized, and needs no citation of authority. The right to recover damages exists equally in both classes of cases; but vindictive or punitive damages are only allowed where the act of the defendant was influenced by malicious motives and without probable cause." And this court in the Wilson case, supra, said: "The remedy for one who has been harassed by a malicious and groundless suit, where there is any remedy, is not an action for defamation, but for bringing and prosecuting the suit maliciously and without probable cause." Accordingly, the petition, as amended, will be construed and treated by this court as an action for the malicious use of legal process or the malicious use of a civil proceeding.
6. The plaintiff sought to recover damages on two counts, to wit: libelous averments injurious to reputation, and losses resulting from delay in starting construction. We deal with these in the order just listed.
(a) By Code § 105-711, which was codified from the decision in Wilson v. Sullivan, 81 Ga. 238 ( 7 S.E. 274), all allegations made in pleadings are absolutely privileged, provided they are material and revelant to the relief sought, and the court has jurisdiction to grant that relief. The preceding section of the Code (105-710) declares that, if a privileged communication, as referred to in § 105-709, "is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action." This court in the Wilson case, supra, quoted that section and asserted that it was dealing with a qualified or conditional privilege, and then held that those averments in pleadings, as above described, did not fall in that classification, because they were absolutely privileged. "Absolute" means at all times and without any exceptions. This simply puts such allegations beyond the reach of any suit of whatever nature to recover damages resulting therefrom. It means that the law has decreed that there can be no damages ever for such allegations. It means that all provisions of law authorizing recovery of damages for malicious use of civil process, malicious abuse of legal process, or malicious prosecution, refer to damages which the law allows, and do not include damages for libel in such privileged pleadings. It was held in Wilson's case, supra, that the existence of malice in making false allegations is immaterial. The Code declares such allegations privileged. "However false and malicious, they are not libelous." § 105-711. If they are not libelous, then manifestly no one can sue and recover damages alleged to have resulted therefrom. This absolute privilege completely protects the defendant from any liability for damages in a suit for libel based thereon, and that which the law prohibits directly it will never permit indirectly. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 473 ( 62 S.E.2d 209). This rule means that the mere naming of a suit which seeks to recover damages resulting from such libel something other than a direct suit for libel, even though that name be a suit for damages resulting from malicious use of civil process, can in nowise lift the absolute legal bar to recovery because of libelous allegations privileged under the Code. Indeed, the decision in Francis v. Wood, 75 Ga. 648, plainly held that, though the suit there, consisting of a number of counts, alleged libel in count one and alleged malicious prosecution, etc., in other counts, yet a verdict for the plaintiff must be reversed because the charge authorized a finding in favor of the plaintiff on the libel count. That decision squarely held that recovery for privileged libel could not be had, even though sought in a suit based upon malicious prosecution. It would have been the same if malicious use of civil process had been substituted for malicious prosecution.
(b) By unanimous decisions this court has held that, in order to recover in a suit for malicious use of civil process, it must be shown that such process caused either (1) an arrest of the person, or (2) seizure of property, or (3) other special injury. Mitchell v. Southwestern Railroad, 75 Ga. 398; Jacksonville Paper Co. v. Owen, 193 Ga. 23 ( 17 S.E.2d 76). In the latter decision it was held that "damages for embarrassment, mortification, humiliation, and being `held up to public scorn and ridicule,'" do not constitute special damages or injury. That decision also held that attorney's fees and other expense in defending the suit were not special damages. Those full-bench decisions were of force when the actions of the defendants here complained of were committed. They were the law of this State. They had the same force and effect as an act of the legislature. Ga. L. 1858, p. 74; Lucas v. Lucas, 30 Ga. 191, 202 (76 Am. D. 642); Hagan v. Asa G. Candler Inc., 189 Ga. 250, 258 ( 5 S.E.2d 739, 126 A.L.R. 108); Crown Laundry v. Burch, 205 Ga. 211, 212 ( 53 S.E.2d 116). To sustain this action against these defendants for doing that which the law of this State declares they could do without liability, would undermine respect for and confidence in the law of the land. It is a serious matter to establish by decision of this court a rule whereby one may conform to the requirements of the law and yet be subject to payment of damages for his actions thus within the law. There is nothing relating to attorney's fees and costs ruled in Slater v. Kimbro, 91 Ga. 217 ( 18 S.E. 296), which involved a dispossessory warrant, nor in Woodley v. Coker, 119 Ga. 226 ( 46 S.E. 89), which was a trover action, contrary to what was held in Mitchell v. Southwestern Railroad, supra, and what we now rule. In each of those cases the counsel fees and costs which it was held were recoverable were necessary to avoid eviction of the person from premises in the former, and seizure of property in the latter by the very process which the damage suit alleged was maliciously used by the defendant. In this action, the alleged special damages sought resulted from postponement of construction until the objection of these defendants had been disposed of. The judgment of the Commission, a copy of which is attached to the petition, conclusively shows that nothing in the law or the proceeding required such postponement. That order points to the provisions of the law for the Commission to cancel or suspend the permit by either of two procedures, but recites that neither had been done, and that, after considering the response to the objections, it was considered and determined that the objections were not meritorious and the same were dismissed. Thus the petition shows that this loss and injury was in no wise caused by the process employed by these defendants, but was due solely to the voluntary action of the petitioner. To proclaim the evils of libel that is privileged under the Code, § 105-711, and to question the wisdom of this section is neither a proper function of the court nor sound argument in favor of a judgment contrary to the law. We must be content with applying the existing law until different law is provided by the law-making department of the government. Accordingly, the petition, as amended, alleged no recoverable damages and for that reason failed to state a cause of action, and it should have been dismissed on general demurrer.
7. A plaintiff is required to plead his cause plainly, fully and distinctly. Code, § 81-101. "Special defects or omissions in the petition may always be taken advantage of by demurrer; and unless cured by amendment, the petition shall be dismissed." § 81-304. When the plaintiff is called upon by special demurrer to allege facts which are necessary for the defendant's defense they must be averred. Western Union Telegraph Co. v. Griffith, 111 Ga. 551 ( 36 S.E. 859); Warren v. Powell, 122 Ga. 4 ( 49 S.E. 730). "One of the most universal rules of pleading is, that the plaintiff should not only set forth a cause of action, but should allege his cause of action with such fulness and precision as will enable the defendant to answer." Bradstreet Co. v. Oswald, 96 Ga. 396, 402 ( 23 S.E. 423). In this case, as shown by our statement of facts, the defendants in due time and form sought by special demurrer to compel the plaintiff to set forth with more precision, certainty, and particularity the contracts he allegedly had for advertising; an itemized statement of the construction materials purchased by him, the cost of which had allegedly increased; and the names of the civil engineers who had allegedly furnished him engineering service and data. As thus sought by the defendants, these omissions from the petition should have been supplied by proper amendment. Warren v. Powell, supra; Louisville Nashville R. Co. v. Barnwell, 131 Ga. 791 ( 63 S.E. 501). Accordingly, the trial judge did not err, as contended, in sustaining those several grounds of special demurrer to each count of the petition as were interposed by the defendants on March 13, 1951.
Judgment reversed on the main bill of exceptions. All the Justices concur, except Candler, Wyatt, and Head, JJ., who dissent. Judgment affirmed on the cross-bill of exceptions. All the Justices concur.
In accordance with the wishes of the court, the foregoing opinion was prepared in conformance with the majority view. What is said in division 6 does not, however, represent my own view. The injury complained of and the consequent damage, according to the allegations of the amended petition, resulted from a tortious act committed wilfully, maliciously, and without probable cause. And, as against a general demurrer, each count of the amended petition alleges damages which may be recovered in a suit for the malicious use of a civil proceeding. In this connection see Wilson v. Sullivan, 81 Ga. 238 ( 7 S.E. 274), and Woodley v. Coker, 119 Ga. 226 ( 46 S.E. 89). Whether a plaintiff has been prosecuted by indictment or by civil proceedings, the principle of awarding damages is the same. Newell on Malicious Prosecution (Damages) 491, § 1. The essential elements of the two actions are the same. Woodley v. Coker, supra. "With respect to the damages recoverable, the general rules of damages applicable to all cases of tort are applicable in actions for malicious prosecution. The same principles are applicable and the same rules govern whether the suit is for the wrongful institution of a civil action or a criminal prosecution." 34 Am. Jur. 760, § 32. See, to the same effect, Sledge v. McLaren, 29 Ga. 64; Wilcox v. McKenzie, 75 Ga. 73; Porter v. Johnson, supra; Georgia Loan Trust Co. v. Johnston, 116 Ga. 623 ( 43 S.E. 27); Woodley v. Coker, supra. Our Code, § 105-801, declares: "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." The plaintiff in an action for malicious prosecution is not confined in his recovery to the actual loss in dollars and cents he has suffered, whether in the nature of money paid out or gains prevented. He may also recover for non-pecuniary losses he sustains, and these are often the chief items of his recovery. 18 R. C. L. § 75. General damages are such as the law presumes to flow from any tortious act. Code, § 105-2006. But "To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." Southern Railway Co. v. O'Bryan, 119 Ga. 147, 148 ( 45 S.E. 1000); Investment Securities Corp. v. Cole, 186 Ga. 809, 810 ( 199 S.E. 126), and cit.; Code, § 105-2002. And, in suits for malicious prosecutions, the Code, § 105-808, provides that "The recovery shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case." As a general rule, punitive or exemplary damages are recoverable in all actions for damages based upon tortious acts, which involve ingredients of malice, fraud or insult, or wanton and reckless disregard for the plaintiff's rights. 15 Am. Jur. 710, § 274. "In England, before the statute of 52 Hen. III., 1277, it was the practice constantly to hold that, where one sued another maliciously and without probable cause, he was liable to such person in damages upon an action on the case, but since the passage of that statute, which gives costs to the defendant per falsum clamorem, the bringing of a civil suit maliciously and without probable cause was not a ground upon which an action could be maintained. Yet there was this distinction: when an action was sued out maliciously and without probable cause, whereby the person of the defendant was arrested, or his property attached, or any special grievance to defendant, then in such a case the action would lie, and, as we understand, that was the common law when this State was a province, and when our adopting statute was passed in 1784, and would have been the law without this statute." Mitchell v. Southwestern Railroad, 75 Ga. 398. But whatever may have been the rule at common law, our Code expressly and emphatically declares that a criminal prosecution, maliciously carried on without probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action; and it is well settled by the authorities cited above that the same rule applies to suits for the malicious use of a civil proceeding without probable cause. In Wilson v. Sullivan, supra, this court said: "The remedy for one who has been harassed by a malicious and groundless suit, where there is any remedy, is not an action for defamation, but for bringing and prosecuting the suit maliciously and without probable cause." In this case, each count of the petition alleges that general and punitive damages, amounting to $200,000, ensued to the plaintiff in consequence of the act complained of, and there is a prayer for the recovery of the same. To this there was no special demurrer, and, as against a general demurrer, the averment is sufficient to show ensuing damage. Under a petition alleging a tort and praying for general damages, the plaintiff may recover all actual damages proven; and, if the injury be slight and no actual damage is shown, he may, nevertheless, recover nominal damages. Hall v. Browning, 195 Ga. 423 ( 24 S.E.2d 392); Glenn v. Western Union Telegraph Co., 1 Ga. App. 821 ( 58 S.E. 83). And in Woodley v. Coker, supra, it was held that "Punitive damages may be recovered in any action sounding in tort where the tortious acts were wantonly or maliciously committed." As against a general demurrer, each count of the petition in this case alleged recoverable damages.
I am authorized to state that Justices Wyatt and Head concur in this dissent.