Dixie Broadcasting Corp. v. Rivers, s. 17737

• Decision Date: 06 April 1952
• Docket Number: 17738,Nos. 17737,s. 17737
• Citation: 209 Ga. 98,70 S.E.2d 734
• Court: Georgia Supreme Court
• Parties: DIXIE BROADCASTING CORP. et al. v. RIVERS. RIVERS v. DIXIE BROADCASTING CORP. et al.

Page 734

70 S.E.2d 734

209 Ga. 98

DIXIE BROADCASTING CORP. et al. v. RIVERS.

RIVERS v. DIXIE BROADCASTING CORP. et al.

Nos. 17737, 17738.

Supreme Court of Georgia.

April 6, 1952.

Rehearing Denied May 14, 1952.

Syllabus by the Court.

1. 'A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by.' Code, § 81-1302. Consequently, there is no merit in the contention here made that the plaintiff's original petition did not contain enough to amend by.

2. A special demurrer to a petition must be in writing and filed within 30 days after service of the petition, unless there is a later amendment that materially changes the cause of action, in which event the amendment will open the petition as amended to demurrer.

(a) An amendment to a petition, made after the expiration of 30 days from service of the petition, does not open the petition to special demurrer where, if the petition was defective as contended, the defect was apparent before as well as after the amendment. Pierce v. Harrison, 199 Ga. 197, 199(5), 33 S.E.2d 680.

(b) In this case the original petition was filed on August 10, 1950. It was not demurrer to within 30 days after service upon the ground of duplicity. It was amended January 19, 1951, and again on February 12, 1951. Counts 1 and 3 of the petition were demurred to specially on the ground of duplicity on February 26, 1951. If count 1 is duplicitous, as contended, the defect was apparent before as well as after the amendments; and therefore the demurrer raising the question of duplicity came too late. Count 3 of the petition is not duplicitous, as contended.

3. A petition containing several counts which do not differ in any substantial particular from each other will, on special demurrer, be dismissed unless the surplus counts are eliminated by amendment. In this case count 1 and count 3 are materially different, and the petition is, therefore, not subject to the criticism that it is repetitious.

4. One of the defendants was referred to and described in the petition as 'Dixie Broadcasting Corporation.' An individual responded to the petition and filed a plea of nul tiel corporation, alleging therein that he owns and operates a business which he conducts under the trade-name of 'Dixie Broadcasting Company.' The same individual, in his trade-name capacity, demurred generally and specially to the petition, invoked a ruling upon his demurrers, excepted to the ruling, and sued out a writ of error. It is here contended for the first time that a ruling upon his demurrers was premature since the issue made by the plea of nul tiel corporation should have been first determined. Obviously and manifestly there is no merit in this contention. The absence of a previous determination of the special plea of nul tiel corporation is no obstacle to a decision by this court on the exception to the judgment on the demurrers. The special plea is pending in the trial court, unaffected by any ruling here complained of.

5. When the plaintiff employs a civil proceeding in order to execute the object which the law intends for it to subserve, but proceeds maliciously and without probable cause, an action for malicious use of legal process lies. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein.

6. Neither count of the petition as amended, alleges damages recoverable in an action for the malicious use of a civil proceeding; consequently, the amended petition failed to state a cause of action for the relief sought and was therefore subject to general demurrer.

7. A plaintiff must plead his cause plainly, fully, and distinctly. Special defects or omissions in his petition may always be taken advantage of by special demurrer and, when the defendant calls upon the plaintiff by special demurrer to allege facts which are necessary for his defense, they should be averred so as to give the defendant reasonable notice of the substantial particulars constituting the plaintiff's cause.

On August 10, 1950, E. D. Rivers Jr. filed a suit in Fulton County Superior Court against Dixie Broadcasting Corporation; WSAV, Incorporated; WDAR, Incorporated; Georgia Broadcasting Company; and Savannah Broadcasting Company. The petition in substance alleged: The Savannah Radio Council is an unincorporated association made up and composed of a membership consisting only of the defendants. The plaintiff owns and operates station WEAS at Decatur, Georgia, the same being his principal business. He decided to expand his radio business and applied to the Federal Communications Commission for permission to construct a new broadcasting station at Savannah, Georgia. Pursuant to an expansion policy, it was his plan to apply for a permit to construct and operate a station or stations at other places. The Commission, on March 6, 1950, granted him a permit to construct his Savannah radio station. On March 8, 1950, the defendants, acting together and in conspiracy with each other but in the name of the Savannah Radio Council, as a subterfuge, petitioned the Commission, in writing, pursuant to sections 1.390 and 1.721 of its Rules and Regulations, to revoke and set aside its said action of March 6, 1950, or in the alternative, pursuant to section 1.726(c) of its Rules and Regulations, to revoke and set aside, on its own motion, its prior action and designate his application for a hearing. The petition so filed by the defendants through their association, as their agent, among others contained the following statements: 'Because of the interest of petitioner in maintaining a high standard of broadcasting in Savannah, petitioner has reviewed Mr. Rivers' representations in his application for station WEAS and has also analyzed his current operation of that station. The results of this study and also petitioner's examination of the subject application for a new station in Savannah are set forth in this petition. Petitioner submits that the facts set forth in this petition require that this application be designated for a hearing, and that had the Commission been aware of these facts at the time it considered the subject application it would not have granted it without hearing but instead would have designated it for hearing * * *. Petitioner believes it to be its duty and responsibility constantly to be watchful that proper ethical standards be maintained by all stations in Savannah for the protection of both the broadcaster and the listener, and bring to the appropriate attention of this Commission any matters which may affect the public interest, convenience and necessity * * *. Examination of the present program schedule of Station WEAS shows that Mr. Rivers' current operation of that station is in sharp variance with the type of programming which he represented to the Commission in the application for original construction permit and in the application for the renewal of license. * * * Furthermore, in view of the failure of Mr. Rivers to program WEAS, as he represented in application filed with the Commission, a substantial doubt exists as to whether he will fulfill the program proposals set forth in the subject application.'

The Federal Communications Commission, on July 21, 1950, refused to revoke and set aside the plaintiff's construction permit or to assign it for a hearing, on its own motion. The aforesaid charges were knowingly false and untrue; they were made wilfully, maliciously, and without probable cause; and they, in effect, charged him with being dishonest, unreliable, a person who did not and would not adhere to his business commitments, a person who was accustomed to act contrary to his business agreements in an unethical manner, and that he was operating his station WEAS at Decatur in violation of his permit or license. The defendants, by the charges so filed, intended to injure, damage, and ruin his business reputation and his radio broadcasting business, drive him out of radio broadcasting, eliminate him as a competitor, and prevent and defeat any expansion of his radio business, especially in Savannah and Chatham County. The charges made against him by the defendants were received and read by the members of the Federal Communications Commission; they were extensively publicized, both in newspapers and magazines; the publication of them brought upon him and to his business scandal, infamy and disgrace among his neighbors, friends, and business associates; the confidence which the members of the Federal Communications Commission had theretofore reposed in him was lessened; and the construction of his broadcasting station at Savannah was interrupted and delayed from April 15, 1950, to September 15, 1950. Because of the defendants' wrongful, wilful, deliberate and malicious act, his business reputation and his radio broadcasting business were injured and damaged in the amount of $200,000, as general, exemplary and punitive damages, $25,000 in loss of revenue, and $17,500 as additional and added expense; and he prayed judgment for those amounts.

On September 6, 1950, Carter C. Peterson, alleging that he trades under the name and style of Dixie Broadcasting Company, filed a plea of nul tiel corporation for the defendant Dixie Broadcasting Corporation. On the same date, all of the defendants, except Savannah Broadcasting Company, filed general and special demurrers to the petition, but the petition was not demurred to at that time by any of the defendants upon the ground of duplicity.

On January 19, 1951, the plaintiff amended his original petition by adding two other counts, leaving his original petition as count 1. Count 2, by averments substantially the same as those made in the original petition, allegd that the defendants had wilfully, maliciously and without probable cause injured and...