Slater v. Kimbro

• Decision Date: 09 November 1892
• Citation: 18 S.E. 296,91 Ga. 217
• Parties: SLATER. v. KIMBRO et al.
• Court: Georgia Supreme Court

18 S.E. 296

91 Ga. 217

SLATER.

v.KIMBRO et al.

Supreme Court of Georgia.

Nov. 9, 1892.

Malicious Prosecution — Wrongfully Ousting Tenant—Damages.

1. One who, by written contract, lets premises to another for one year, with a privilege of renewal for two years longer, admits the tenant into possession, and at the expiration of the first year sues out a summary statutory process maliciously and without probable cause to dispossess the tenant as a tenant at will holding over, is liable to an action for malicious prosecution of a civil proceeding, if any special damage to the tenant is occasioned thereby.

2. The premises being occupied and used by the tenant as a boarding house, the loss of boarders occasioned by suing out the malicious process was special damage. So, too, were trouble and expense, including counsel fees, incurred by the tenant in giving bond and security to prevent summary expulsion from the premises by virtue of the malicious process. The declaration, though loose, and needing amendment to give it full certainty, set forth a cause of action, and it was error to dismiss the same on motion or general demurrer.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action for malicious prosecution by Mary F. Slater against R. P. S. Kimbro and others. From a judgment dismissing the action, plaintiff brings error. Reversed.

P. L. Mynatt & Son, for plaintiff in error.

Arnold & Arnold and W. B. Farley, for defendants in error.

BLECKLEY, C. J. 1. The declaration is good in substance. it sets forth a substantial cause of action. The plaintiff being in possession of the premises under a written contract for one year, "with privilege of two years longer at same agreed rate, " she was not subject to rightful expulsion at the end of the first year as a tenant at will holding over. She was not a tenant at will, and was not holding over, unless she had relinquished or forfeited the "privilege of two years longer at same agreed rate;" and this, so far as appears, she had not done. On thecontrary, by remaining in possession after the year expired, she signified her intention to avail herself of the longer term provided for by the contract, and, if an express renewal was contemplated, (which, under the words of the writing, seems improbable,) some demand to execute a renewal contract should have been made upon her. it seems to us that merely continuing to occupy would spread the original contract over the two additional years, just as it had previously covered the first year's occupancy, and that...