Foster v. Sikes

• Decision Date: 16 April 1947
• Docket Number: 15698.
• Citation: 42 S.E.2d 441,202 Ga. 122
• Parties: FOSTER, Sheriff, et al. v. SIKES.
• Court: Georgia Supreme Court

42 S.E.2d 441

202 Ga. 122

FOSTER, Sheriff, et al. v. SIKES.

No. 15698.

Supreme Court of Georgia

April 16, 1947

Syllabus by the Court.

In the conspiracy charged against the officers, no damage was shown to the party complaining, and the trial court did not err in sustaining the general demurrer to the petition.

W S. Northcutt, Ralph H. Pharr and Durwood T. Pye, all of Atlanta, for plaintiffs in error.

A E. Wilson, of Atlanta, for defendant in error.

HEAD Justice.

The present case comes to this court on writ of certiorari to a judgment of the Court of Appeals. The trial court sustained a demurrer to the petition of John W. Sikes, the defendant in error in this court, and the Court of Appeals reversed that judgment. The opinion of the Court of Appeals (74 Ga.App 350, 39 S.E.2d 585, 588) sets out with particularity the allegations of the petition of Sikes, the plaintiff in the lower court, and it is necessary here only to briefly set out his contentions. Sikes brought his petition against A. B. Foster, as sheriff of Fulton county, and Hugh W. Cromer, Carl W. Smithwick, and Mrs. A. B. Foster, as deputy sheriffs, alleging that: The plaintiff conducted a real-estate brokerage business in the City of Atlanta. A named person had listed certain property with him for sale, which he advertised in the daily newspapers of Atlanta. As a result of a conspiracy entered into between the defendants, the defendants Cromer, Mrs. Foster, and Smithwick, falsely misrepresented to him their names, and represented that they were residents of St. Louis, Missouri, in urgent need of a house in Atlanta, and wanted to buy the property advertised if an agreement could be reached on the price. Acting on such false representations, the plaintiff spent the greater part of the afternoon on a stated date showing the last-named defendants the property advertised, and the defendant Cromer stated that he was highly pleased with the property and agreed to purchase it for the listed price, subject to an examination of the title. The plaintiff suggested that he put up a given sum as earnest money to bind the trade, whereupon Cromer stated that he would meet the plaintiff the following morning and sign a formal contract of purchase and deposit the earnest money. On the following day when the plaintiff met the defendants, he ascertained that Cromer had no intention of buying the property, that the representations made as to the identity of the defendants were false, and that they had imposed upon and trespassed upon the plaintiff for the purpose of apprehending a fugitive from justice. The plaintiff charged that he had relied upon the representations made by the defendants and devoted his time and attention in an effort to consummate the sale; that, had the trade been closed as agreed, he would have received a commission thereon of $1050, and charged that he sustained special damages in this sum. The plaintiff further charged that the conduct of the defendants was diabolical, reprehensible, and illegal, and as a result of the imposition upon him he is entitled to general damages of $25,000, and that he is entitled to collect punitive damages.

The Court of Appeals in their decision held in part as follows: 'Our view is that the demurrer was properly sustained as to the alleged general damages of $25,000, and the special damages of $1,050 claimed as commissions which would have been received on a sale of the property; but we think that as to plaintiff's loss of time and the alleged punitive damages the petition was good as against the general demurrer. It follows that the court erred in sustaining the demurrer and in dismissing the action.'

The petition in this case was for damages for an alleged tort, and the question for determination is whether or not the acts of the defendants amounted to a tort. Our careful study has not revealed a case in this State in any way similar to the present one. The Court of Appeals cites the case of Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 71, 69 L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561, as being somewhat analogous, the basis of that case being the unauthorized publication of the plaintiff's picture in a newspaper. In the Pavesich case it was held that the publication of the picture, without the plaintiff's consent, was a violation of his right of privacy and entitled him to recover, and the court defined personal liberty as including the right 'to be let alone.' We do not think that case is in any way analogous to the present case. A person who engages in the real-estate business certainly does not ordinarily want 'to be let alone' by the public. His is a business which requires publicity in order that it may prosper, and a violation of his privacy in business matters could not be claimed as a damage to him.

The Court of Appeals stated: 'We think that the conduct of the defendants as alleged in this case amounted to an unlawful trespass upon the time of the plaintiff, and that it was tortious conduct within the meaning of the law.' From the very nature of his business a real-estate agent invites the public to intrude on his time. If such agents could bring a suit to recover for a trespass upon their time against every person who represented to them that he was interested in buying property, while in fact he had little or no intention of actually buying, the courts could soon be filled with such cases. A person desiring to build may represent that he wants to buy property in order that he may be shown houses of various types of construction. Could the real-estate agent recover damages against such person for a trespass on his time? If he could, he would soon ruin his own business, since people would be unwilling to consult such agent for fear that they might be sued if their motives were not pleasing to the agent. There is nothing in the petition in this case to show the value of the time of the plaintiff. It would be a matter of speculation as to whether he might have sold some other person the property in question, or other property, during the time he spent with the defendants.

The real purpose of the defendants, as shown by the petition, was to apprehend a fugitive from justice, a task imposed on...