Davison-paxon Co v. Norton, 29917.

• Decision Date: 10 March 1943
• Docket Number: No. 29917.,29917.
• Citation: 24 S.E.2d 723
• Parties: DAVISON-PAXON CO. et al. v. NORTON.
• Court: Georgia Court of Appeals

24 S.E.2d 723

DAVISON-PAXON CO. et al.

v.NORTON.

No. 29917.

Court of Appeals of Georgia, Division No. 2.

March 10, 1943.

Syllabus by the Court.

The petition which sought to recover damages for malicious prosecution was not subject to general demurrer or to any of the special demurrers.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Action for malicious prosecution by Thelma Norton against Davison-Paxon. Company and others.

To review a judgment overruling demurrers defendants bring error.

Affirmed.

On April 10, 1940, Thelma Norton brought suit against Davison-Paxon Company, Stores Mutual Protective Association, Inc., and S. H. Gresham, in which she alleged that the defendants had damaged her by reason of the following facts: On October 28, 1938, J. B. Carver, as agent for Davison-Paxon Company and Stores Mutual Protective Association, Inc., procured a warrant from the municipal court of Atlanta for the plaintiff's arrest, in which warrant the plaintiff was charged with being a common cheat and swindler. On November 7, 1938, the plaintiff was arrested under this warrant and carried to the office of the chief judge where she was detained under arrest until late that afternoon, when she was released by the judge with direction to return to court at 10 a. m. on November 12, 1938. On November 12, at a preliminary hearing, Judge A. L. Etheridge, after hearing the testimony of Carver, bound the plaintiff over to the criminal court of Fulton County. After this hearing the plaintiff was taken to the office of the sheriff of Fulton County where she was required to execute a $100 bond. While in the office of the sheriff an effort was made to fingerprint the plaintiff and photograph her, but she refused to submit thereto. On November 22, 1938, Carver, while acting as agent aforesaid, went before the solicitor of the criminal court of Fulton County and swore to an accusation charging that the plaintiff, on September 10, 1938 defrauded Davison-Paxon Company out of $25. On December 8, 1938, the plaintiff was placed on trial on this accusation before Judge Wood of the criminal court on the charge of being a common cheat and swindler. Carver testified for the State on this trial. The jury returned a verdict of not guilty.

The petition further alleged that on September 10, 1938, Thomas Norton, a half brother of the plaintiff, gave her a check for $25, signed by himself and drawn on the Valley National Bank of Phoenix, Arizona. The plaintiff at this time had an open account with Davison-Paxon Company, and was well known to this company as she had opened and maintained an account with it for many months before that time. After receiving the check the plaintiff went to the store of Davison-Paxon Company where she indorsed the check, paying a balance of $9.51 due on her open account, and receiving the difference of $15.49 in money. For some time before September 10, 1938, the plaintiff had been ill, and on September 17 she went to Jacksonville, Florida, in an effort to regain her health. On October 20, 1938, the plaintiff returned to her home in Atlanta. While her health had improved it had not been fully restored to normal. On her return to Atlanta she found a letter from S. H. Gresham, manager, Stores Mutual Protective Association, Inc., dated October 17, 1938, which had been delivered to her residence in her absence, in which letter she was advised that the $25 check signed by Thomas Norton had been returned unpaid. In this letter Gresham demanded that the plaintiff make good the amount of the check by 10 o'clock a. m. October 19, 1938. At this time the plaintiff did not have this amount of money, and was weak, extremely nervous, and unable to leave the house. The plaintiff immediately called the office of the protective association and requested that some one come to her home in order that she might explain concerning the check, who the maker was and where he could be located. The plaintiff told the person on the telephone of her past illness and of her present physical condition and that she was not able to leave her room. The association failed and refused to grant her request, and on October 28, 1938, Carver, while acting as agent aforesaid, instituted a malicious prosecution against her. The agent of Davison-Paxon Company, Mrs. T. Milligan, delivered the $25 check to the protective association for the purpose of prosecuting the plaintiff. Gresham, as manager and agent of the association, counseled and advised with Carver, as agent aforesaid, to bring the prosecution against the plaintiff for being a common cheat and swindler. The plaintiff was not guilty of such offense, and the charges set forth in the warrant against her and in the criminal accusation were false and malicious, and there was an entire want of probable cause. The plaintiff was acquitted of these charges when tried. Davison-Paxon Company, Mrs. T. Milligan, the Stores Mutual Protective Association, Inc., J. B. Carver, and S. H. Gresham, each and every one, conspired and confederated together to arrest and maliciously prosecute the plaintiff, and they knew that the plaintiff was not guilty of the offense with which she was charged.

By reason of the premises the plaintiff has been injured in her reputation and brought into public scandal, infamy, and disgrace among her neighbors and other good and worthy citizens of the State, and divers of her neighbors and citizens to whom her innocence in the premises was not known have, by reason of the premises, suspected and believed and still believe that the plaintiff was guilty of the charge of being a common cheat and swindler. By reason of the premises the plaintiff has suffered great anxiety and pain of both body and mind and...