Brantley v. Rhodes-haverty Furniture Co

• Decision Date: 13 August 1908
• Citation: 62 S.E. 222,131 Ga. 276
• Parties: BRANTLEY. v. RHODES-HAVERTY FURNITURE CO. et al. RHODES-HAVERTY FURNITURE CO. et al. v. BRANTLEY.
• Court: Georgia Supreme Court

62 S.E. 222

131 Ga. 276

BRANTLEY.

v.RHODES-HAVERTY FURNITURE CO. et al.

RHODES-HAVERTY FURNITURE CO. et al.

v.BRANTLEY.

Supreme Court of Georgia.

Aug. 13, 1908.

1. Malicious Prosecution—Elements—Termination of Prosecution — Process — Abuse—Termination of Action.

In a suit for malicious prosecution of a criminal case without probable cause, or a malicious use of legal process in a civil case, consisting in maliciously instituting and prosecuting such a case without probable cause, it is necessary to allege and prove that the action in which the process issued has been finally determined in favor of the defendant therein. In an action for a malicious abuse of process by employing process, legally and properly issued, wrongfully and unlawfully for a purpose whichit was not intended by law to effect, it is not necessary to allege and prove the termination of the action in which the process issued.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 70.]

2. Process—Abuse—Pleading—Petition.

A petition alleged that an action to recover personal property was brought, and bail process was taken out in connection therewith, under Civ. Code 1895, § 4604; that the plaintiff in the action knew that the defendant did not have the property in her possession, custody, or control; that it was the purpose of the proceeding to compel her to give up a certain piece of jewelry which she wore on her person, and to pay a debt due by her for a balance of the purchase money on the furniture; that she was arrested, and kept in custody for five hours; that the purpose of the process and the use which it was made to serve was not contemplated by law, but was to compel her to surrender a diamond brooch and to make payment of a debt in agreed installments; that she was thus coerced into delivering the diamond and signing an agreement in regard to making payment, and was thereupon released. Held, that the petition set out a case of malicious abuse of legal process.

3. Same—Evidence—Nonsuit.

The evidence introduced in support of the action made out a prima facie case, and the granting of a nonsuit was error.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by M. L. Brantley against Rhodes-Haverty Furniture Company and another. Judgment for defendants, and plaintiff brings error. Defendants file a cross-bill of exceptions, assigning error on exceptions pendente lite to the overruling of their demurrer to the petition. Judgment on plaintiff's writ reversed, and judgment affirmed on defendants' cross-bill of exceptions.

Mrs. M. L. Brantley brought suit against the Rhodes-Haverty Furniture Company, a corporation, and Clarence Haverty. Her declaration, as amended, alleged in brief as follows: The defendant company brought an action against the present plaintiff to recover certain furniture, alleged to be in her possession, custody, or control, and, acting by and through its representative and agent, Clarence Haverty, made a false and malicious affidavit, in order that process might issue against her from the city court of Atlanta, requiring the officer of that court to arrest her; and such process was issued. The affidavit so made alleged that the company was about to institute a suit against Mrs. Brantley for the recovery of certain specified personal property; that it was in her possession, custody, or control; that the deponent and the company had reason to apprehend that it would be eloigned or moved away, and would not be forthcoming to answer the judgment or decree that should be made in the case; that the value of the property was $102.15; and that the furniture company claimed said property as belonging to it. The statements made in this affidavit as to her possession, custody, or control of the property were false, and were known to be false by the affiant at the time he made the affidavit and he made it with malice and without probable cause, and for the purpose of forcing Mrs. Brantley to give up a certain piece of jewelry which she wore on her person and to compel her to pay a debt. Service was made upon her by a deputy sheriff of the county, by arresting her. The arrest occurred as she was about to be seated at the dining table of the hotel where she boarded, and she was kept in custody of the sheriff from noon until 5 o'clock p. m., during that time being deprived of her liberty and subjected to the mortification and humiliation of personal detention. She was taken from the office of her attorney to that of the attorneys for the plaintiff in the bail trover action, and was informed by the sheriff that the process meant imprisonment in the county jail, unless she would give up the property sued for, or give bond, neither of which it was in her power to do. While in actual custody of the deputy sheriff, she was told by the "defendant" in the present case that, unless she gave up the jewelry or paid the money, she would have to go to jail. The purpose of the process was, not to obtain the furniture or bond, but to coerce payment. While under duress and in the custody of the deputy sheriff, to save herself from the disgrace and humiliation of imprisonment, she took from her person a diamond brooch or pin, of the value of $75, and delivered it to one of the defendants, Clarence Haverty, who retains it in his possession and refuses to return it to her. Haverty was informed, before the bail trover action was commenced, that the furniture for which it was brought was not in the possession of Mrs. Brantley, but that possession of it had been taken from her by one Farlinger, and that a suit had been filed against him to recover it. When Haverty made the affidavit stating that the property was in her possession, custody, or control, the statement was not true, and the real facts were known to him. When she surrendered the diamond brooch, the action at law subjecting her to arrest was suspended by a promise that it would not be further prosecuted if she would continue to pay $10 per month. The process, after being issued, was made to serve a purpose not contemplated by law as its legal function, but to coerce her, and to subserve a different purpose. All the tortious acts alleged are joined as one continuous transaction and as one count for damages. A demurrer to the petition was overruled, and the defendants filed exceptions pendente lite.

On the hearing the plaintiff testified in substance as follows: She bought furniture from the Rhodes-Haverty Furniture Company to the amount of $282, and paid all the purchase money except $102.15. They claimed to hold the title to the furniture until it was all paid for. It was in a house in her possession during the spring of 1905. She made a bill of sale to one Farfinger, covering the property in the house. She explained to him that there was a balance due on the fur-nature, and she was to keep possession of it, and did so. She rented the house to another person. On May 1, 1905, without her knowledge or consent, Farlinger went there and removed to his own residence all the furniture, including that bought from the Rhodes-Haverty Furniture Company. She told Clarence Haverty this, and that she had notified Farlinger that she owed a balance, and informed Haverty that he could go and get the property. He was the manager of the furniture company, and her dealings were with him. Some time afterward, while she was boarding at a hotel, when on her way to luncheon, an officer came to her and informed her that she was under arrest unless she surrendered the property she had bought from the Rhodes-Haverty Furniture Company, and that the paper which he served on her was a bail trover process, and meant that she must give up the property, make bond, or go to jail. He allowed her to consult her attorney, and afterwards carried her to the office of the attorneys for the plaintiff. There a proposition was made to her by the "defendant" to give her diamond brooch as collateral, which she...