Daniel v. Georgia Railroad Bank & Trust Co.

• Decision Date: 26 September 1985
• Docket Number: No. 42172,42172
• Citation: 255 Ga. 29,334 S.E.2d 659
• Parties: DANIEL v. GEORGIA RAILROAD BANK & TRUST COMPANY.
• Court: Georgia Supreme Court

Page 659

334 S.E.2d 659

255 Ga. 29

DANIEL v. GEORGIA RAILROAD BANK & TRUST COMPANY.

No. 42172.

Supreme Court of Georgia.

Sept. 26, 1985.

Rehearing Denied Oct. 16, 1985.

Jay M. Sawilowsky, Joseph R. Neal, William H. Lumpkin, Augusta, for Jumelle Weathers Donnelly Daniel, f/k/a Jumelle Weathers Connelly.

David K. Whatley, Charles E. Buker III, Fortson & White, Atlanta, for Georgia R.R. Bank & Trust Co.

HILL, Chief Justice.

This case involves the statutes of limitations applicable to certain torts. We granted certiorari to determine when the applicable statute commenced running. Daniel v. Georgia Railroad Bank & Trust Co., 173 Ga.App. 888, 328 S.E.2d 552 (1985).

The facts, as set out by the Court of Appeals, are as follows: "On March 9, 1983, plaintiff brought suit against the Georgia Railroad Bank & Trust Company (hereinafter referred to as the 'bank') and 12 merchants seeking damages for negligence and malicious prosecution. In her complaint, plaintiff alleged that on August 31, 1979, an unknown person pilfered her purse; that, thereafter, the unknown person opened a checking account at the bank in plaintiff's name; that the unknown person issued checks to the 12 merchant defendants; that the checks were drawn on the bank; that when the checks were presented to the bank, it returned the checks to the merchants; that the merchants thereupon caused 18 criminal warrants to issue against plaintiff, charging her with the offense of 'issuing worthless checks'; that the merchants knew or should have known that plaintiff did not issue the checks; that plaintiff was arrested on March 25, 1981, pursuant to the warrants; and that on September 7, 1982, a nolle prosequi was entered upon the record in each of the criminal cases brought against the plaintiff. It was further alleged that the bank was negligent in permitting the unknown person to open the account in plaintiff's name, in failing to discourage the merchants from taking out the criminal warrants and, after plaintiff's arrest, in failing to encourage the defendants to dismiss the criminal warrants. With regard to the merchant defendants, plaintiff alleged that they negligently accepted the checks, negligently took out the warrants against the plaintiff and maliciously prosecuted the plaintiff knowing that she did not issue the checks. Defendants answered the complaint and denied the material allegations thereof. In its answer, the bank also asserted a statute of limitation defense. Following discovery, the bank made a motion for summary judgment. The motion was granted and this appeal followed."

The Court of Appeals held that plaintiff's cause of action against the bank had commenced running when plaintiff initially suffered actual damage; i.e., "when the bank returned the checks to the merchants marked 'non-sufficient funds' and 'account closed' in December 1979," and therefore plaintiff's suit filed on March 9, 1983, was barred by the statute of limitations. Daniel, supra.

A chronological list of the pertinent events may be helpful:

August 31, 1979--plaintiff's purse was stolen

December 1, 1979--account opened at the bank by someone posing as the plaintiff

December 8, 1979--imposter commenced cashing checks (which the bank returned) and continued to do so until mid-January 1980

December 15, 1979--various merchants (12) started taking out warrants (18) for plaintiff's arrest and continued to do so until February 1980

December 15, 1979--bank knew or had reason to know that the account had not been opened by plaintiff

March 25, 1981--plaintiff arrested when she applied for a driver's license

September 7, 1982--bad check cases against plaintiff nol prossed

March 9, 1983--plaintiff filed suit against the bank and the 12 merchants

The applicable statute of limitations, as the parties acknowledge, is OCGA § 9-3-33, which provides in pertinent part as follows: "Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues...."

Plaintiff concedes that any action she may have had for injury to her reputation (libel) arose when the checks were returned by the bank so marked as to indicate that plaintiff had insufficient funds in her account to cover such checks, or showing that plaintiff had cashed checks after closing her account. Similarly, plaintiff concedes that the statute of limitations on her causes of action for libel ran one year...