City Of Columbus v. Webster

Decision Date21 May 1935
Docket NumberNo. 24239.,24239.
Citation51 Ga.App. 270,180 S.E. 512
CourtGeorgia Court of Appeals

Syllabus by the Court.

The petition as amended set out a cause of action, and the court properly overruled the general demurrer interposed.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Suit by Mamie Webster against the City of Columbus and another. To review a judgment overruling its demurrer to the petition, named defendant brings error.


Miss Mamie Webster brought a suit for damages against the city of Columbus and M. J. Kendrick, alleging that she was an employee of the defendant city in the capacity of dietitian at the city hospital, an institution owned and operated by the city under power vested in it by an act of the General Assembly; that the city and Kendrick, acting jointly and with common intent and purpose, caused to be issued a search warrant for the purpose of having petitioner's house and automobile searched for "groceries" alleged to have been feloniously stolen and carried away by petitioner; that the affidavit upon which the search warrant was based was made by M. J. Kendrick, who deposed "that groceries of different kinds have within the last week been feloniously stolen and carried away from the possession of this deponent; and that deponent verily believes upon probable cause that the said goods so stolen as aforesaid have been and are now concealed in the dwelling house and automobile of Miss Mamie Webster"; that the search warrant was executed by a detective of the city, and petitioner was "illegally and falsely detained and arrested"; that the affidavit and warrant were made and issued without probable cause, and that the accusations therein were false; that upon a careful search of petitioner's car by said detective, nothing was found that had been stolen or secretly taken from the hospital. However, there were in the car "a little pan or bucket of food scraps that petitioner had placed there to carry home for her cat and dog, a few meat scraps and bread scraps left upon the trays and plates of patients, nurses, servants, or employees, not for human consumption but for the garbage can unless fed to cats and dogs. Besides these scraps of food there was a small glass jar of ice cream that some of the helpers or servants had placed in petitioner's car for petitioner; that said refuse scraps of food were worthless and unfit for human consumption, and the ice cream might have been worth 15 or 20, certainly not exceeding 25 cents. The one half pint of cream, the four oranges and the one loaf of bread belonged to petitioner, and the one quart of milk and the one pound of butter likewise belonged to her in exchange with hospital, as petitioner had done before in order to preserve the purity and freshness of such food for patients of the hospital"; that petitioner was thereafter discharged as an employee of the hospital as a result of the "false, malicious, and wrongful charges by persons in charge of said city hospital, the agents, servants, and employees of said city, and defendant Kendrick to the effect that petitioner had been guilty of stealing"; that "said search warrant was issued at the instance of said defendants for the purpose of drumming up or conjuring up some charge against petitioner to be given as the real excuse for such discharge"; that such charge was found to be groundless; that the. processes of affidavit and warrant were "maliciously abused by said defendants"; that "said affidavit and warrant were issued as aforesaid for no bona fide cause, but for an ulterior purpose, which said process of the court was maliciously abused, misused, or perverted so as to accomplish an object or purpose which the law does not intend such a process to effect, all of which was inspired, entered into, carried out, and consummated by and between said defendants, their agents, servants, and employees, and for the purpose and design to embarass, frighten, and force your petitioner to resign her said position as dietitian of said hospital, and to fabricate a baseless charge without any probable cause or foundation whatever to offer as an excuse to discharge her should she not resign"; that "the said hospital was not and is not maintained and operated as a charitable hospital or institution, but operated for private gain or as a profit-making enterprise, and charged and still charges fees to patients using the same, and imposes and collects such fees and charges of persons admitted therein for treatment"; that because of the malicious abuse of the process above stated, and the execution thereof, petitioner suffered indescribable mental and physical pain, her health was injured, especially her nervous system, she was humiliated, embarassed, and held outto the world as a petty thief, and was discharged from her position with the suspicion of crime on her; and she prayed for damages.

The city of Columbus demurred to the petition, on the ground that it set forth no cause of action against the city; that the acts complained of were in the performance of governmental functions; and that they were ultra vires acts. The court overruled the demurrer, and on this judgment the city assigns error.

Wm. de L. Worsley, of Columbus, for plaintiff in error.

Terrell & Terrell, of Greenville, and Ed Wohlwender, Jr., of Columbus, for defendant in error.

BROYLES, Chief Judge (after stating the foregoing facts).

"An action for malicious abuse of legal process will lie where legal process has been employed for some object other than that which it was intended by law to effect." Porter v. Johnson, 96 Ga. 145, page 146, 23 S. E. 123. In view of the allegations of the petition as amended in the instant case, "we have no hesitancy in ruling that the petition set forth, in substance, a cause of action for the malicious abuse of legal process. 'There is a malicious abuse of process where a party employs process legally and properly issued wrongfully and unlawfully for a purpose which it is not intended by law to effect; and for such malicious abuse of civil or criminal process an action will lie against the plaintiff, or the officer responsible for the abuse.' * * * If the allegations of the petition be true--and they must be so considered in passing upon the motion in the nature of a general demurrer-- then all the defendants were liable for the abuse of the process." Mullins v. Matthews, 122 Ga. 286, page 289, 50 S. E. 101, 102. According to the allegations of the instant petition, the purpose of the defendants in having caused the process to be issued was not to recover property of the defendants or either of them, but to embarass and humiliate petitioner and force her to resign her position, or to "drum up" an excuse for discharging her. If this be true, the process "was made to serve a purpose not contemplated by law as its legal function." Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, page 278, 62 S. E. 222, 223. See, also, King v. Yarbray, 136 Ga. 212 (1), 71 S. E. 131; Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294 (1), 71 S. E. 421, 36 L R. A. (N. S.) 1112; Salt Lake City v. Hollister, 118 U. S. 256, 262, 6 S. Ct. 1055, 30 L. Ed. 176.

It is undisputed that a municipality is not liable in damages for the acts of its employees in the performance of a governmental function; and necessary acts, under statutory authority, for the preservation of the public health, within proper limitations, are governmental functions; but the issuing of the search warrant and the searching of plaintiff's car, under the circumstances and for the purposes alleged in the petition, were not necessary acts in the performance of a governmental function, or in the preservation of the public health. The acts in question, even if authorized, were acts in the performance of a ministerial function and not of a governmental function. Moreover, the acts were not performed in behalf of an institution operated for the benefit of the public generally, but for one operated for the citizens of Columbus. Furthermore, according to the petition, the hospital was not an eleemosynary institution, but one operated largely for private gain. So far as the petition shows, no one was admitted of treated free. However, the test relative to governmental functions, as to city hospitals charging fees, is not whether there are incidental charges, or whether a few are charged, or whether a few are not charged, or whether the institution is successful in making a profit, but whether it is operated primarily as a profit-making enterprise Cornelisen v. City of Atlanta, 146 Ga. 416 (2), 91 S. E. 415, and cases cited in the opinion.

The petition alleges that "the said hospital was not and is not maintained and operated as a charitable hospital or institution, but operated for private gain or as a profit-making enterprise, and...

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