Lovell v. Drake

• Citation: 3 S.E.2d 783,60 Ga.App. 325
• Decision Date: 08 July 1939
• Docket Number: 27474.
• Parties: LOVELL v. DRAKE et al.
• Court: United States Court of Appeals (Georgia)

3 S.E.2d 783

60 Ga.App. 325

LOVELL v. DRAKE et al.

No. 27474.

Court of Appeals of Georgia, Division No. 2.

July 8, 1939

Grover C. Powell, of Atlanta, and W. A. Mason, Orville A. Park, and Orville A. Park, Jr., all of Macon, for plaintiff in error.

Beck Goodrich & Beck, Maddox & Futral, Jos. R. Cumming Claude Christopher, S. B. Wallace, and C. A. Byars, all of Griffin, for defendants in error.

FELTON Judge.

Alma Lovell sued certain officers of the City of Griffin, in one count, for alleged malicious prosecution, false arrest, and false imprisonment. The petition as amended alleged that the defendants confederated and conspired against the petitioner which conspiracy resulted in her being prosecuted, with malice and without probable cause, being falsely imprisoned and being falsely arrested. One ground of demurrer was that the petition was duplicitous, and that several causes of action were joined in the same count. The court sustained all the demurrers and dismissed the petition. The plaintiff excepted.

The petition was fatally defective in that it joined three separate and distinct contradictory and conflicting causes of action, arising out of the same circumstances, in one count. "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." Code § 105-801. "False imprisonment consists in the unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty." Code § 105-901. "An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested." Code, § 105-1001. If a warrant or process is valid, malicious arrest or malicious prosecution is the exclusive remedy and an action for false imprisonment will not lie. Grist v. White, 14 Ga.App. 147, 80 S.E. 519; Teasley v. Nelson, 39 Ga.App. 773, 148 S.E. 534; Page v. Citizens' Banking Co., 111 Ga. 73, 36 S.E. 418, 51 L.R.A. 463, 78 Am.St.Rep. 144, and cit. If the warrant or process is void, an action for false imprisonment is the exclusive remedy. Cary v. Highland Bakery Inc., 50 Ga.App. 553, 179 S.E. 197; Alexander v. West, 6 Ga.App. 72, 64 S.E. 288; Collum v. Turner, 102 Ga. 534, 27 S.E. 680; Satilla Manufacturing Co. v. Cason, 98 Ga. 14, 25 S.E. 909, 58 Am.St.Rep. 287. Two or more separate and distinct causes of action may not be joined in the same count over a proper and timely objection. Hillside Cotton Mills v. Ellis, 23 Ga.App. 45, 97 S.E. 459; Daniels v. Booker, 23 Ga.App. 644, 99 S.E. 228; Gainesville & D. Electric Ry. Co. v. Austin, 122 Ga. 823, 50 S.E. 983; Colquitt v. Georgia Railway Co., 146 Ga. 249, 91 S.E. 70. Plaintiff in error contends that the allegations of conspiracy, resulting in the acts complained of, render the above rule inapplicable to the facts of this case. She contends that separate counts are unnecessary after amending her petition presumably to meet the demurrers. If a conspiracy in itself gave rise to a cause of action under the Georgia law she would be correct, but such is not the case. "Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is the damage, and not the

conspiracy." Woodruff v. Hughes, 2 Ga.App. 361, 363, 58 S.E. 551, 553; Liberty Mutual Insurance Co. v Lipscomb, 56 Ga.App. 15, 192 S.E. 56; Lambert v. Georgia Power Co., 181 Ga. 624, 183 S.E. 814. The fact of conspiracy only has the effect of increasing the number liable for...